Prudential Ins. Co. of America v. Zeidler, 6 Div. 935

• Decision Date: 19 November 1936
• Docket Number: 6 Div. 935
• Citation: 233 Ala. 328,171 So. 634
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. ZEIDLER et al.
• Court: Alabama Supreme Court

171 So. 634

233 Ala. 328

PRUDENTIAL INS. CO. OF AMERICA v. ZEIDLER et al.

6 Div. 935

Supreme Court of Alabama

November 19, 1936

Rehearing Denied Jan. 14, 1937

Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.

Action for damages for personal injuries by Margaret Helen Zeidler a minor, suing by her next friend, C.A. Zeidler, against the Prudential Insurance Company of America and Jackson Securities & Investment Company. From a judgment for plaintiff and against defendant Prudential Insurance Company said defendant appeals.

Reversed and remanded.

Murphy Hanna, Woodall & Lindbergh, of Birmingham, for appellant.

Erle Pettus, Sr., Erle Pettus, Jr., W.H. McGowen, and Benners, Burr, McKamy & Forman, all of Birmingham, for appellees.

THOMAS Justice.

The case was submitted to the jury on counts G and I.

It is averred in count G, among other things, that plaintiff suffered personal injuries "proximately caused by the negligence of defendants' servants, agents or employees, while acting in line with, and within, the scope of their employment in that they did negligently maintain a guardrail or handrail at the entrance of an apartment building or upon a walkway or stairway leading thereto, to-wit, 1855 So. 21st street B'ham, Ala., in such condition as to be dangerous to children, and to be and remain upon their premises in said city of Birmingham, Alabama, in such condition as to be dangerous to children under the age of 8 years, and the plaintiff further avers that she was invited to be and to play around said stairway or guardrail and that the defendants, their servants, agents or employees either knew, or in the exercise of due diligence should have known, that said stairrail or guardrail was a place of great danger to plaintiff, and defendants were in charge and control of said walkway, stairway and guardway, and plaintiff further avers that on to-wit, July 17th, 1933, while on said premises by invitation of said defendants, their officers, servants, agents or employees, as such, the plaintiff slipped or fell or was caused to fall by the breaking of said rotten guardrail a distance of 12 or 15 feet to the rocks below, thereby suffering the wounds, injuries and damages set out in the first count of her complaint."

Count I claimed personal injury damages for the alleged breach of duty owing by defendants to the plaintiff as a member of the family of her father, who is alleged to be a resident apartment tenant of the defendant, in negligently allowing a defective handrail along a walkway on the rented premises to remain unrepaired to her resultant injury.

The defendants Prudential Insurance Company of America and Jackson Securities & Investment Company were required to plead to the counts on which the trial was had and which made the issues of fact for consideration by the jury, with the averred facts of plea 4 and the general issue.

We are of the opinion and hold that the issues presented and tried were those of an invitee vel non on the premises of a mortgagee-purchaser, and the negligence charged and averred in general terms, which proximately resulted in plaintiff's injury.

The method of pleading employed in this case--a general form of averment--obtains in this jurisdiction. Dwight Manufacturing Co. v. Holmes, 198 Ala. 590, 73 So. 933; Alabama By-Products Corporation v. Cosby, 217 Ala. 144, 115 So. 31; Arlington Realty Co. et al. v. Lawson, 228 Ala. 214, 153 So. 425.

The general duty imposed by the law on the owner of premises is to be reasonably sure that he is not inviting another into danger, and to exercise ordinary care and prudence to render and keep his premises in a reasonably safe condition for invitees. Southern Railway Co. v. Bates, 194 Ala. 78, 69 So. 131, L.R.A.1916A, 510; Gandy v. Copeland, 204 Ala. 366, 86 So. 3; Alabama By-Products Corporation v. Cosby, supra; Stephens v. Walker, 217 Ala. 466, 117 So. 22; Birmingham Electric Co. v. Kirkland, 218 Ala. 429, 118 So. 640; Williams et al. v. Bolding, 220 Ala. 328, 124 So. 892; Birmingham Amusements, Inc., v. Turner, 221 Ala. 242, 128 So. 211; Ellison v. Alabama Marble Co., 223 Ala. 371, 136 So. 787; Needham v. Birmingham Trussville Iron Co., 229 Ala. 452, 157 So. 849; Thompson on Negligence, § 1030; Bennett v. Louisville & Nashville Railroad Company, 102 U.S. 577, 579, 26 L.Ed. 235.

It is further established that to render a landowner responsible for the mere condition of his property, in the absence of an affirmative act calculated to inflict injury, invitation to the person injured must be implied from conduct amounting to more than sufferance, permission, or passive acquiescence in repeated trespasses. Needham v. Birmingham Trussville Iron Co., supra; Cox v. Alabama Water Co., 216 Ala. 35, 112 So. 352, 53 A.L.R. 1336; Atlantic Coast Line R. Co. v. Carter, 214 Ala. 252, 107 So. 218. And, in the absence of an agreement between the parties, a landlord need not keep the demised premises in repair. Bains v. Dank, 199 Ala. 250, 74 So. 341.

In Arlington Realty Co. et al. v. Lawson, 228 Ala. 214, 215, 153 So. 425, 426, where the landlord undertook to make repairs, the rule was thus stated:

"The allegations of an undertaking by the landlord, through servants, etc., to make repairs or changes in equipment, are sufficient to disclose a duty of reasonable care, and the general allegation of negligence is sufficient. Texas Co. v. Parker, 24 Ala.App. 365, 136 So. 845; Alabama Utilities Service Co. v. Hammond, 225 Ala. 657, 144 So. 822; Bains v. Dank, 199 Ala. 250, 74 So. 341."

And in Sovereign Camp, W.O.W. v. Feltman, 226 Ala. 390, 393, 147 So. 396, 399, it was observed:

"It is familiar law that a person causing an act to be done, the doing of which casts upon him a duty, cannot escape from the responsibility of performing his duty by committing the doing of the act to a contractor. Republic Iron & Steel Co. v. Barter, 218 Ala. 369, 118 So. 749. The defendant was responsible for the acts of Proud in accomplishing the act which his principal had undertaken. Gulf Electric Co. v. Fried, 218 Ala. 684, 119 So. 685; Sanders v. Gernet Bros. Lumber Co., 221 Ala. 469, 129 So. 46."

This court, in Sloss-Sheffield Steel & Iron Co. et al. v. Wilkes et al., 231 Ala. 511, 514, 515, 165 So. 764, recently considered the liability of the servant to third persons, holding that liability for omission to act depends upon whether due care in the performance of his duties makes it necessary for the agent to do the act which is omitted; that omission of the agent to enter upon the performance of his duties is not a negligent performance for which he is liable to third persons, but if he does enter upon the service, negligent performance may result from omitting to do what ought to be done as well as performing his duties in an improper manner. See, also, Wright v. McCord, 205 Ala. 122, 88 So. 150 (where this principle was carefully analyzed, following Mayer v. Thompson-Hutchison Bldg. Co., 104 Ala. 611, 16 So. 620, 28 L.R.A. 433, 53 Am.St.Rep. 88).

It has been declared by many cases in this court that it is the generally accepted rule that, when real property is leased, "it is taken as it stands," under the doctrine similar to that of caveat emptor, without special covenant by the owner or his authorized agent, to the making of repairs or improvements ("the lessee's eyes are his bargain," Adler v. Miller, 218 Ala. 674, 120 So. 153, 154; Brown v. Dwight Mfg. Co., 200 Ala. 376, 76 So. 292, L.R.A.1917F, 997; Moore v. Weber, 71 Pa. 429, 10 Am.Rep. 708), there being no concealment of known latent defects, or maintenance of a nuisance, by the lessor. Hart v. Coleman, 201 Ala. 345, 78 So. 201, L.R.A.1918E, 213. The modern decisions generally do not imply covenants which ought to be expressed if so intended by the parties. And of the class of covenants that are not implied is that the lessor will make additions, alterations or repairs of real property that is let, subject to inspection. Sheets v. Selden, 7 Wall. 416, 423, 19 L.Ed. 166, 168; Gill v. Middleton, 105 Mass. 477, 7 Am.Rep. 548; Notes, L.R.A.1918E, 218, L.R.A.1916D, 1227, 34 L.R.A. (N.S.) 805. This is on the presumption or assumption that the lessee knew the facts or condition of the premises leased, in so far as it was obvious.

It follows, from the reason of the decisions, that the extent or authority of lessor's agent to lease the premises cannot be presumed to imply authority to that agent to represent that of which the lessee had or was charged with knowledge.

The rule as to the renting of real property and the lack of implied authority or obligation to bind the landlord to repair and subject him to damages for the failure thereof was well-stated by the present Chief Justice in Morgan v Sheppard, 156 Ala. 403, 47 So. 147, to the effect that, in the absence of an agreement by the landlord to repair, a tenant may not recover the reasonable cost of necessary defects or repairs made by him, or for damages received on the leased premises on which he has "created no nuisance," nor latent defects; and in Anderson v. Robinson, 182 Ala. 615, 620, 62 So. 512, 513, 47 L.R.A. (N.S.) 330, Ann.Cas.1915D, 829, decided by the same writer, the decision in Morgan v. Sheppard was reviewed, and it was declared as settled by the weight of authority "that the landlord is not liable in tort for injuries to said class [tenant, family, servant or guest], whether there be a covenant to repair or not, unless the defects existed at the time of the letting, were known to him, and which he concealed from the tenant." This case (Morgan v. Sheppard) was likewise followed in Hart v. Coleman, 192 Ala. 447, 68 So. 315, and in Bains v. Dank, 199 Ala. 250, 252, 74 So. 341, where the landlord undertook to make repairs, may...