Smith v. Hallock

CourtSupreme Court of Alabama
Citation98 So. 781,210 Ala. 529
Docket Number6 Div. 14.
Decision Date17 January 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.


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...

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10 cases
  • Adler v. Miller
    • United States
    • Supreme Court of Alabama
    • June 7, 1928
    ...... through such insufficient and unsafe flooring was permitted. to recover damages in an action ex contractu. In Smith v. Hallock, 210 Ala. 529, 98 So. 781, is declared the rule. when the action is ex delicto, and, "in the absence of a. covenant to repair," the ......
  • Gulf Electric Co. v. Fried
    • United States
    • Supreme Court of Alabama
    • December 6, 1928
    ...... 412, 98 So. 635; Greer v. Heyer, 216 Ala. 229, 113. So. 14; Ex parte Adams, 216 Ala. 353, 113 So. 513. . . In the. case of Smith v. L. & N.R. Co., 208 Ala. 440, 441,. 94 So. 489, the plaintiff's demurrers to several pleas. were overruled, and two years thereafter it is ...341,. where the landlord undertook to make repairs may be held. liable for injuries resulting from the negligent manner of. the work. Hallock v. Smith, 207 Ala. 567, 93 So. 588; Id., 210 Ala. 529, 98 So. 781; Spangler v. Hobson, 212 Ala. 105, 101 So. 828; Abbott v. Ala. Power Co., ......
  • Prudential Ins. Co. of America v. Zeidler, 6 Div. 935
    • United States
    • Supreme Court of Alabama
    • November 19, 1936
    ......341, where the landlord undertook to. make repairs, may be held liable for injuries resulting from. the negligent manner of the work. Hallock v. Smith,. 207 Ala. 567, 93 So. 588; Smith v. Hallock, 210 Ala. 529, 98 So. 781; Spangler v. Hobson, 212 Ala. 105,. 101 So. 828; Abbott v. Ala. ......
  • Lacey v. Deaton, 6 Div. 519.
    • United States
    • Supreme Court of Alabama
    • March 22, 1934
    ...of an agreement to repair which entered into the contract of renting. Adler v. Miller, supra; Gulf Electric Co. v. Fried, supra; Smith v. Hallock, supra; Macke v. 224 Ala. 681, 141 So. 651; Morgan v. Sheppard, 156 Ala. 403, 47 So. 147. Of this the plaintiff said: "Mr. Lacey came back to the......
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