Smith v. Hallock

• Decision Date: 17 January 1924
• Docket Number: 6 Div. 14.
• Citation: 98 So. 781,210 Ala. 529
• Parties: SMITH v. HALLOCK.
• Court: Alabama Supreme Court

98 So. 781

210 Ala. 529

SMITH v. HALLOCK.

6 Div. 14.

Supreme Court of Alabama

Jan 17, 1924

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action by Marie L. Smith against Mary V. Hallock, for injuries to plaintiff in falling through the porch of premises owned by defendant and rented to a third party. Demurrers to the complaint were sustained, plaintiff declined to plead further, and there was judgment for defendant, from which plaintiff appeals. Affirmed.

See also, Hallock v. Smith, 207 Ala. 567, 93 So. 588.

Horace C. Wilkinson, of Birmingham, for appellant.

J. H Ward and J. L. Drennen, both of Birmingham, for appellee.

ANDERSON C.J.

This case has been before this court before, and, as to counts 1 and 2 of the complaint, we adhere to the opinion one former appeal. Hallock v. Smith, 207 Ala. 567, 93 So. 588. The question was then carefully considered and reconsidered on application for rehearing, and, while we are aware of the statute forbidding the rule of stare decisis upon a subsequent appeal of the same case, we are convinced that the former opinion is sound and should not be overturned.

Counts 3, 4, and 5, added by way of amendment, seek to establish a tort growing out of a breach of covenant on the part of the defendant to repair the porch, made with her tenant when letting the premises, but fail to show a breach of duty, as distinguished from a breach of contract, which would authorize an action of tort by the tenant, his family, guest or any one entering under him. In the case of Anderson v Robinson, 182 Ala. 615, 62 So. 512, 47 L. R. A. (N. S.) 330, Ann. Cas. 1915D, 829, this court, following what it deemed the sounder rule and weight of authority, adhered to the rule that a landlord is not liable in tort for injuries to the tenant, his family, servants, guests, or others entering under his title from defects in the demised premises, even where there is a covenant to repair, unless it appears that the defects existed when the premises were let, and that the landlord had knowledge of them and concealed them from the tenant. The counts now under consideration not only fail to aver the tenant's ignorance of said defect, but set up an agreement to repair, thus, in effect, charging the tenant with a knowledge of same. Hart v. Coleman, 192 Ala. 447, 68 So. 315.

The trial court did not err in sustaining the defendant's demurrer to each count of the complaint, and...