Atlantic Coast Line R. Co. v. Deavers

97 So. 844, 19 Ala. App. 420, 1923 Ala. App. LEXIS 243

• Court: Alabama Court of Appeals
• Decided: October 30, 1923
• Docket: 3 Div. 460.
• Status: Published

Opinion

BRICKEN, P. J.

The. appellant demurred to the third count of the complaint, on the ground, among others, that the facts alleged did not show the violation of any duty on the part of the defendant to the plaintiff and a failure of the count to show that the negligence alleged was actionable.

The opinion here prevails that the demurrer to this count of the complaint should have been sustained. The count shows no duty on the appellant to keep the dwelling house in repair. For aught appearing, the appellee was a tenant by curtesy or at will, and there is nothing in the complaint that shows any duty on the landlord to repair, or that the condition of the premises was concealed from the tenant. 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; Morgan v. Sheppard, 156 Ala. 403, 47 South. 147; Hallock v. Smith, 207 Ala. 567, 93 South. 588.

Under the authorities cited the third count of the complaint states no cause of action because the negligence alleged is not actionable. Tenn. Coal, Iron & R. Co. v. Smith, 171 Ala. 251, 55 South. 170; L. & N. R. Co. v. Holland, 164 Ala. 73, 51 South. 365, 137 Am. St. Rep. 25; Crawford v. McMickens, 190 Ala. 102, 66 South. 712.

The .other questions may not arise on subsequent trial.

Reversed and remanded.