Bains v. Dank

GARDNER, J. (1) It is a well-recognized rule in this state that, in the absence of any agreement between the parties, the landlord is under no obligation to keep the demised premises in repair, and that the rule of caveat emptor applies in regard to leases. — Morgan v. Sheppard, 156 Ala. 403, 47 South. 147; Hart v. Coleman, 192 Ala. 447, 68 South. 315; Anderson v. Robinson, 182 Ala. 615, 62 South. 512, 47 L. R. A. (N. S.) 330, Ann. Cas. 1915D, 829. (2) In the present case no agreement on the part of the landlord to keep the premises in repair is shown to have existed, and none was set up in the pleadings in the cause. The above-mentioned rule is therefore applicable here, and the landlord was under no obligation to make the repairs. Notwithstanding this, however, if he voluntarily, at the tenant’s request, undertakes to make the repairs, he is liable for any injuries which may result to the latter from the negligent manner in which the work is done. — 24 Cyc. 116; 1 Tiffany, Landlord & Tenant, p. 608. (3) The general rule that the owner or proprietor is not liable for the negligent acts of an independent contractor is well [253] established in this state.- — Chattahoochee & G. R. R. v. Behrman, 136 Ala. 508, 35 South. 132; Massey v. Oates, 143 Ala. 248, 39 South. 142; So. Ry. v. Lewis, 165 Ala. 555, 51 South. 746, 138 Am. St. Rep. 77; Montgomery St. Ry. v. Smith, 146 Ala. 316, 39 South. 757. There are, of course, exceptions to this general rule, but with such we are not here concerned. In regard to its application to the relationship of landlord and tenant where the repairs on leased premises'are committed by the landlord to an independent contractor, Mr. Tiffany, in his work on Landlord & Tenant (volume 1, p. 610), says: “The general rule is that for the acts of such contractor not under the control of his employer the latter is not liable; but this rule is subject to a number of exceptions, the extent and application of which raise questions of difficulty, and the uncertainty and confusion which exists in other connections in this respect are fully present in the decisions rendered as between the landlord and tenant.” In discussing such exceptions the author cites many authorities, all of which we have carefully examined, and we find that this case does not come within any well-recognized rule of exception. The general rule therefore finds application here. That Bates & Bumpus were independent contractors is clear from the undisputed evidence, and this was so recognized by the trial court. — Harris v. McNamara, 97 Ala. 181, 12 South. 103; Republic I. & S. Co. v. Luster, 192 Ala. 501, 68 South. 358. The evidence shows that the work was being done by said firm as independent contractors, and if there was any negligence on their part (a question upon which we would indicate no opinion), the landlord would not be liable therefor. The repair work was being made gratuitously on the part of the landlord at the tenant’s request. The evidence is without dispute that the contractors were entirely competent and reliable. Discussing a case similar in principle, and after referring to the general rule above noted as to immunity from liability on the part of the owner for negligence of an independent contractor., the Supreme Court of Illinois, in Jefferson v. Jameson & Morse, 165 Ill. 138, 46 N. E. 272, said: “The fact that appellee was a tenant of appellant, occupying the building where the repairs were made, does not, in our opinion, make this case an exception to the general rule heretofore announced. Appellee contracted in writing with appellant, for a certain consideration therein expressed, that the improvement or repairs might be made. Having agreed that the [254] repairs might be made, it occupies no better position, so far as-its rights to recover damages is concerned, than a stranger. In other words, after appellee contracted that the work might be-done, it and appellant, so far as the work was concerned, occupied the position of strangers to each other.” The first count rested for recovery upon the allegation of negligence as to the repair work. As before stated, this work: was being done by independent contractors, and the pleas to said, count setting up immunity from liability for this reason were-established without conflict. It results, therefore, that the affirmative charge was due the defendant as to count 1 of the complaint. (4) As the cause must be reversed, we need state no definite-conclusion as to the second count of the complaint, relying upon the negligence of the defendant in failing to promptly have the-roofing delivered on the premises. We might add, however, that the evidence shows that the material was ordered by the defendant from materialmen whose reliability was not questioned on the trial, and the order was made several days before the work ' was begun. Aside from this, the record discloses that the roofing was delivered on the day the work was commenced, and that it arrived and was being put in place before the rain fell. It nowhere appears that delay in the repairing of the roof was due ' to any failure on defendant’s part to more promptly deliver the roofing material. We are therefore inclined to the view, without expressly decided the same, that the evidence found in this record in support of count 2 is of too uncertain and conjectural a nature upon which to rest a judgment against the defendant. We are also inclined to the view, though this is unnecessary to be decided, that the demurrer to the complaint taking the point that it failed to allege by what right or authority plaintiff was occupying the house, was well taken. We merely direct attention to this question as a matter of pleading. The judgment of the court below will be reversed, and the cause remanded. Reversed and remanded. Anderson, C. J., and McClellan and Sayre, JJ., concur.