Hallock v. Smith , 207 Ala. 567 ( 1922 )

Appellee declared against appellant in an action for damages on account of a personal injury. The report sets out count 1 of the complaint. Count 2 requires no special attention.

As to the tenant, his guests, servants, or others entering under his title — including the plaintiff in this case — in the absence of a covenant to repair, the landlord, according to the common law, is liable only for injuries resulting from latent defects, known to him at the time of the leasing, and which he conceals from the tenant. This rule is well established in this jurisdiction. Morgan v. Shappard, 156 Ala. 403,47 So. 147; Anderson v. Robinson, 182 Ala. 615,62 So. 512, 47 L.R.A. (N.S.) 330, Ann. Cas. 1915D, 829; Hart v. Coleman, 192 Ala. 447, 68 So. 315; Brown v. Dwight Mfg. Co., 200 Ala. 376, 76 So. 292, L.R.A. 1917F, 997. And such is the rule elsewhere (24 Cyc. 1114), unless the law of Louisiana furnishes an exception. Boutte v. New Orleans Terminal Co., 139 La. 945, 72 So. 513. This rule, of course, is founded upon the reason and justice obtaining in the ordinary relation between landlord and tenant. Section 24 of the Act of August 20, 1915 (Acts, p. 294 et seq.), provides that —

"Such cities" — meaning Birmingham — "may require that all buildings and structures therein be kept in a safe and tenantable condition or be removed, and they may provide for a condemnation of buildings * * * when the same are unsafe," etc.

And the same section provides, thus further defining the legislative purpose, that upon the failure of any person, "whose duty it may be, to remedy any unsafe, unsanitary, or dangerous condition of any building," or remove the same, upon notice to be prescribed by the city, the municipal authorities may proceed to repair or remove at the expense of the owner. Section 487 of the Municipal Code of Birmingham makes it "unlawful for any person, firm or corporation owning any building * * * to keep or maintain the same in an unsafe or untenantable condition," and makes it the duty of every person owning any building or structure in the city to keep the same in a safe and tenantable condition or to cause the same to be removed. This ordinance is made for the benefit of the public, in derogation of private right, and is not to be extended as to persons or remedies beyond the clear language of the statute. In accordance with the general rule that where a power is conferred upon a municipal corporation to be exercised in a manner particularly described, it follows that where the charter — in this case the act of August 20, 1915 — provides the manner in which ordinances are to be enforced, such provision is to be construed as excluding any other manner. The remedy of enforcement prescribed operates as a negation of any other. McQuillin, Mun. Ord. § 169.

It is to be observed that the ordinance undertakes by its terms to impose duty, and liability resulting from default, upon the owners of buildings; whereas the statute authorizes an ordinance prescribing the penalty of repair or removal by municipal authorities at the owner's expense, after notice, in the case of a failure on the part of "any person, firm or corporation whose duty it may be to remedy * * * or to remove * * * upon such notice as may be prescribed" — meaning, we think, that the failure to which a municipal ordinance may attach the stipulated consequences must be the failure of the person upon whom the law imposes the duty to repair — ordinarily, we may concede, the owner. But here we have the case of premises let to a tenant by contract, made by defendant's predecessor in title, and which, for aught appearing, vested the exclusive right to possession in the tenant, leaving also the duty of repair on him. Authorities, supra. Plaintiff was a guest of the tenant, claimed the right to be on the premises under the tenant's title, and can have no better right than the tenant. We would be unwilling to hold that the tenant, in the circumstances here shown, could maintain an action for damages against his landlord. So while the ordinance may operate for the protection of the public against nuisances allowed upon premises within its territory, the tenant in this case, his guests, servants, or others entering under his title, are not members of the public within its purview.

We have not attempted to follow the question here presented into all its ramifications, but confine our observations to the necessities of the case shown by the pleadings. The demurrer to the complaint should have been sustained; the demurrer to defendant's special plea 6, raising much the same question, should have been overruled — had the case properly progressed to that point.

Reversed and remanded.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.