Wyatt v. Adair

• Decision Date: 16 December 1926
• Docket Number: 6 Div. 517
• Citation: 215 Ala. 363,110 So. 801
• Parties: WYATT v. ADAIR.
• Court: Alabama Supreme Court

110 So. 801

215 Ala. 363

WYATT v. ADAIR.

6 Div. 517

Supreme Court of Alabama

December 16, 1926

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by J.E. Adair against W.P. Wyatt. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Horace C. Wilkinson and J.R. McElroy, both of Birmingham, for appellant.

A. Leo Oberdorfer, of Birmingham, for appellee.

BOULDIN J.

The suit, in the main, is for the recovery of damages growing out of alleged breach of contract, or of duty growing out of contract, between landlord and tenant, in that the landlord pending the occupancy of the tenant, rented another apartment in the same building to negroes, and placed them in possession.

Count 2 of the complaint charges, in substance, that defendant, the owner of a certain two-story house, with store and three rooms on the first floor, and four rooms on the second floor and a common toilet on the second floor for the use of occupants of both floors, rented to plaintiff, for occupation by himself, wife, and daughter, the store and three rooms on the first floor, with the use of the toilet; that as a part of the agreement defendant impliedly covenanted that he would not lease nor place in possession of the remainder of said premises negroes or negro families; that pending the lease "defendant breached said contract, and leased to and placed in possession of the upper floor and the toilet of said building a negro family"; that as a proximate consequence defendant has been deprived of the use and enjoyment of the premises, himself and family caused to use the toilet in common with negro men and women; that plaintiff was greatly humiliated and caused to suffer physical pain and mental anguish, and to suffer mental anguish by seeing his wife and thirteen year old daughter humiliated.

Count 4 charges there was a general custom between landlords and tenants in Alabama, known to the defendant, that, premises dependent on one toilet being leased in part to white people, the other part would not be leased to colored people; that the lease to plaintiff was made with reference to said custom as a part of the contract; that by the breach complained of plaintiff was caused to remove from the premises, and he and his family caused to suffer great mental pain and anguish, and plaintiff was put to the expense of moving and securing other premises.

Count 5 charges in general terms that defendant wrongfully and maliciously evicted plaintiff from the premises, causing humiliation and mental anguish, the loss of the use of the premises, and expense and inconvenience in seeking other premises. Plaintiff claims punitive damages.

Appellant, defendant below, challenges the main cause of action upon the ground of an unqualified right of the landowner to lease his property to whom he will for orderly and legitimate purposes under the guaranties of the Fourteenth Amendment to the federal Constitution.

Reliance is had upon Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, L.R.A.1918C, 210, Ann.Cas.1918A, 1201, involving the validity of a municipal ordinance forbidding the residence of negroes upon blocks wherein the majority of residences were occupied by whites, and vice versa. Whether and under what conditions the doctrine of that case would extend to occupancy of adjoining apartments in the same building, we need not here inquire. We surely would not hold the state or its municipalities powerless to prevent rentals involving the common use of toilets and the like by white persons and negroes. But none of these questions are here involved.

In the very recent case of Corrigan v. Buckley, 271 U.S. 323, 46 S.Ct. 521, 70 L.Ed. 969, decided by the Supreme Court of the United States May 24, 1926, all the owners of property in a residence district of the city of Washington had entered into and recorded an indenture, reciting that, for their mutual benefit and the best interests of the neighborhood, they mutually covenanted and agreed that no part of these properties should ever be used by, or sold, leased or given to, any person of the negro race or blood, and that this covenant should run with the land. A decree of the district court enjoining the violation of the covenant, affirmed by the Court of Appeals, was carried by appeal to the Supreme Court.

The court said:

"And the prohibitions of the Fourteenth Amendment 'have reference to state action exclusively, and not to any action of private individuals.' Virginia v. Rives, 100 U.S. 313, 318, 25 L.Ed. 667 [669]; United States v. Harris, 106 U.S. 629, 639, 1 S.Ct. 601, 27 L.Ed. 290 [294]. 'It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the Amendment.' Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed. 835 [839]. It is obvious that none of those amendments prohibited private individuals from entering into contracts respecting the control and disposition of their own property; and there is no color whatever for the contention that they rendered the indenture void."

It was further declared such covenant was not void because violative of any public policy arising from the Constitution or federal statutes in pursuance thereof. Without discussion of fundamental reasons well stated by the Supreme Court of Pennsylvania, and incorporated at length into our jurisprudence in Bowie v. Birmingham Ry. & Elec. Co., 125 Ala. 397, 408, 27 So. 1016, 50 L.R.A. 632, 82 Am.St.Rep. 247, et seq., we consider the decision in Corrigan v. Buckley, supra, ample authority that the landlord and white tenant may make a valid contract to the effect that negroes shall not be rented an apartment in the same building.

Matters which may be expressly agreed may be implied, if the circumstances in evidence warrant the conclusion that such was the intention of the parties.

A well-known general custom vitally affecting the peaceful and quiet enjoyment of the premises may well be considered an implied element of the contract between landlord and tenant. 4 Michie's Dig. p. 611, § 15; 27 R.C.L. 187, 192; 17 C.J. 485.

While common knowledge of a custom excluding negroes from the same building or neighborhood may be limited to white residence districts, it is certainly competent to aver and prove a known and well-established custom in what may be termed a negro district to the effect that, if premises are leased to white persons, negroes shall not be put in connected premises with a common toilet for both tenants and their families. 'Twould be strange and deplorable if such custom did not exist, however humble the habitation.

Count 2 is for breach of an implied covenant for quiet...