The prior or Carter lease of 1922, under which the Millers entered, expired with April 1, 1923. The injury occurred May 3, 1924. The Millers, having entered as subtenants under Carter, did not execute a new written lease when requested; yet they paid the rent monthly, and finally demanded that the floor or step in question be repaired, and this was agreed to, and it was upon such agreement that they remained in the premises for the succeeding months, and that in which Mrs. Miller sustained her injury.
The agreement to repair was made in March, or about the 1st of April, 1924, to Mrs. Miller and to her husband, they remaining as tenants, and plaintiff was injured on May 3, 1924, by reason of said defect in the flooring and failure to repair the same, as had been agreed by agent of the landlord, and said repair was the consideration on which the family remained in and continued to occupy the premises as their dwelling.
Is the question of a variance presented by the request and refusal of defendant's written charges 8 and 9? These charges are as follows:
"(8) If the plaintiff's husband, and not the plaintiff, was the defendant's tenant, you must find for the defendant.
"(9) The basis of this action is the breach of an agreement to make repairs in the rented premises, and if you believe from the evidence that only plaintiff's husband and defendant were parties to such agreement, then plaintiff cannot recover." *Page 680
The complaint alleges, among other things, that:
"Plaintiff, while a tenant of the defendant, and as such tenant in the possession of house and lot, known as No. 524 North Sixteenth street, Birmingham, Alabama, the property of the defendant, was injured as follows: * * * Plaintiff avers said injuries were proximately caused by the negligence of the defendant, which negligence consisted in this: As a part of the contract of rental by which plaintiff rented said house, the defendant agreed to repair said house and remove said defective condition, which proximately caused said injuries," etc.
There was evidence tending to show said agreement to repair, before the expiration of the month of March or April, by the husband and by the plaintiff with defendant's agent, made by the plaintiff and by her husband, for extension of the contract beyond the original term, and of the continued occupancy on the additional consideration of the making of repair in question.
The trial court refused the foregoing written charges requested by defendant, and instructed the jury in the general charge as follows:
"If there be a covenant to repair in the lease, or there is a covenant to that effect to repair or contract to repair, then that begets a certain duty; that is to say, if he owes the duty, if the landlord by virtue of his contractual undertaking owes a duty to repair, that duty inures to the benefit, not only of the lessee himself, but all of the members of his family who reside with him on the premises, and that is a duty that is broad enough, if such be the case, to extend to the — not only to the lessee, but to the members of his family residing there, and the failure of which — to perform which, would give rise to a cause of action to some member of the family who was directly injured, as well as it might have given to the lessee himself were he, under such circumstances, injured."
Was there a variance presented by the evidence that was sufficiently raised by objection to the evidence and under these charges? Rule 34 (175 Ala. xxi) is:
"Rule 34. Variance; Special Objection Making Point; GeneralCharge. — In all cases where there is a variance between the allegations and proof, and which could be cured by an amendment of the pleading, the trial court will not be put in error for admitting such proof unless there was a special objection making the point as to the variance. And the general objection that the same is illegal, irrelevant and immaterial, will not suffice. Nor will the trial court be put in error for refusing the general charge predicated upon such a variance, unless it appears from the record that the variance was brought to the attention of the said trial court by a proper objection to the evidence."
There was no specific objection to the evidence on this ground, that suggesting a variance; that is to say, on the trial and introduction of the evidence, the question of a variance was not brought to the attention of the trial court by a proper objection to the evidence, as to whether the extension contract with the agent to repair was by the husband rather than with the wife, as alleged in her complaint.
It is unnecessary to cite all the cases under the rule to the effect that refusal of affirmative instruction for variance between the complaint and proof cannot work reversal, unless called to the court's attention as required by the rule, a special objection making the point as to variance, etc., by objection to the evidence. Seaboard Air Line R. Co. v. Johnson,217 Ala. 251, 115 So. 168; Ritter v. Gibson, 217 Ala. 305,116 So. 158; American Radiator Co. v. Andino, 217 Ala. 424,116 So. 121. And if the effect of refused charges 8 and 9 be that of affirmative instructions requested by defendant on the ground or theory of a variance, the same was not sufficiently brought to the attention of the trial court by special objection making the point, or by a proper objection to the evidence, and at a time when the pleading and proof may have been so shaped as to duly meet or prevent a variance.
The question of the wife's right of recovery ex contractu for such injury under the facts averred and shown by the evidence, though the original and extended tenancy as a dwelling and home for the family and wife, as made by the husband, is presented by the afore-quoted part of the oral charge to which exception was reserved by defendant. In Anderson v. Robinson, 182 Ala. 615,62 So. 512, 47 L.R.A. (N.S.) 330, Ann. Cas. 1915D, 829, the rule of an action in tort touching "concealed defects" and "agreements to repair," as affecting the contracting tenant, is stated, and the observation is made:
"In the case at bar, however, some of the counts set up a covenant to repair when the lease was made and as a part of the consideration of same; but it seems from the great weight of authority that said covenant does not increase the liability of the landlord, or change the rule above set forth as to his liability in tort to the tenant, his family, servants, or guests, for injuries caused by virtue of defects in the rented premises. In other words, it seems settled by the weight of authority that the landlord is not liable in tort for injuries to said class, whether there be a covenant to repair or not, unless the defects existed at the time of the letting, were known to him, and which he concealed from the tenant."
See, also, Morgan v. Sheppard, 156 Ala. 403, 47 So. 147, and authorities contained in Gulf Electric Co. v. Fried, MS.
And the just and humane rule announced in Hart v. Coleman,201 Ala. 345, 78 So. 201, L.R.A. 1918E, 213, declared or extended the right of action ex contractu in such a case to the tenant as affected by the obvious defect against which the tenant contracted for his own security, and, the writer thought, for that of the immediate family, etc., of the tenant. *Page 681 It was for security to the tenant and his family, for which the contract was entered into, was in contemplation of the parties, and the consideration or a material part thereof for the continued or prolonged tenancy. The oral instruction makes no difference, as between the husband and wife, of the right of action ex contractu. If the husband contracted, it was for each member of the family. If the wife contracted, it was on her own behalf, and the security of the family. The writer cannot agree, in a case where there is no concealed defect, and there is a contract against defect, and there is no right of action in tort by a member of tenant's family, that the contract entered into for the purpose of security to the tenant and his family, that in an action ex contractu it only extended to the tenant, and not to his family. The reasoning employed in Hart v. Coleman, 201 Ala. 345, 78 So. 201, L.R.A. 1918E, 213, should be held to protect the tenant and made available to him of the action ex contractu, should extend that rule to members of his immediate family, for whose benefit and protection the contract was entered into with the landlord. This was within the contemplation of the parties, to protect any member of the family occupying the premises as a dwelling. Bird v. St. Paul F. M. Ins. Co., 224 N.Y. 47, 120 N.E. 86, 13 A.L.R. 875, and Winter-Loeb Groc. Co. v. Boykin, 203 Ala. 187, 82 So. 437, are actions ex contractu and allowed to recover by the undisclosed principals. See, also, Vinson v. Southern Bell Tel. Tel. Co., 188 Ala. 292, 66 So. 100, L.R.A. 1915C, 450.
The foregoing expresses the opinion of the writer and Justice BOULDIN. See, also, 36 Corpus Juris, 209.
That the action and count on which trial was had is ex contractu is the judgment of Justices GARDNER, THOMAS, BOULDIN, and BROWN; that it is ex delicto (and so treated by the trial court throughout the trial) is the judgment of ANDERSON, C. J., and SAYRE and FOSTER, JJ.; that it does not state an action for tort and defendant should have the affirmative charge.
The majority indicated, on a further consideration of the count and demurrer thereto, are of opinion that it did not aver with sufficient certainty the contract or legal effect thereof; it should set forth the conditions on which the right of the action ex contractu for personal injury rests, as stated in Hart v. Coleman, supra.
We are further of opinion that the rule of Best Park Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929, should not be applied to the disputed question of consideration for the renewed and extended tenancy, and the complaint is subject to the appropriate ground of demurrers, Nos. 7 and 8, challenging the same. The majority are further of opinion, in view of the contradictory instructions contained in the general charge, and to which exceptions were reserved, that the case should be retried.
It results that the application for rehearing is granted, the judgment of affirmance is set aside, the judgment of the circuit court is reversed, and the cause remanded.
All the Justices concur in the result announced on rehearing, as hereinabove indicated.