Great Atlantic & Pacific Tea Co. v. Traylor

The earnestness of the application for rehearing impels us to emphasize what we thought was made clear in our opinion. We fully understand that the complaint charges a joint and several act of negligence to both defendants; and that it is not predicated on those principles which hold the landlord liable to his tenant or to those entering the premises under his right only when such injury results from latent defects known to the landlord and unknown to the tenant and concealed from him. We also fully understand that the facts of this case do not show the latter situation, as it is not in the complaint. The theory on which we wrote the opinion is not at all so predicated.

The case of Morgan v. Sheppard, 156 Ala. 403, 407,47 So. 147, brings out clearly the distinction in the duty of a landlord to the tenant, his family, employees and customers on the one hand, and to strangers to them both on the other. And so do the authorities generally hold. Liability to the tenant and his privies is on one principle, 36 Corpus Juris 231, et seq., and to strangers on another, 36 Corpus Juris 239, 241, et seq.

The complaint does not contain the allegations, as we have said and as is pointed out in the application for rehearing, that at the time of the letting to Joe Joseph there was a latent defect known to his landlord, but unknown to the tenant, Joe Joseph, and concealed by the landlord from him. The facts do not show that status, and the right to recover against the Great Atlantic and Pacific Tea Company, who was the landlord of Joe Joseph, is not dependent upon it. What we said in the opinion should not be so understood.

It was said in effect that the defect, if it existed at the time of letting to Joe Joseph, was an incident to a duty by the landlord to strangers, and as to which there was no primary duty on Joe Joseph, and his exoneration did not have the effect of acquitting his landlord. This is on the authority of Morgan v. Sheppard, supra, that when the premises are out of repair at the time of letting, in particulars which the landlord is boundas regards third persons not to allow, he is liable for injuries sustained by a third person on *Page 502 that account. That theory of duty is as respects third persons, not the tenant or his privies.

The Atlantic and Pacific Tea Company may be held liable under this complaint on either of two theories, (1) that in renting to Joe Joseph, it did not surrender all control of the duplex sign, so that thereafter it owed the public a continuing duty (whether or not Joe Joseph also owed such a duty) not to be negligent in its maintenance, and thereby injure some member of the public in the exercise of his lawful rights in the use of the sidewalk. 36 Corpus Juris 243, section 956. This was a non-delegable duty. 36 Corpus Juris 244, note 96. (2) The second theory which would be within the complaint, but not supported by the evidence, is that the landlord surrendered all control of the duplex sign to Joe Joseph in renting to him a portion of the interior of the store, and at the time of doing so, the sign was then in such defective condition as that during the term of the lease it was, or likely would, and did, become dangerous to the public in the ordinary course of events, and he negligently allowed such condition to continue. 36 Corpus Juris 241, section 949.

But if there had been evidence that all control was surrendered to Joe Joseph of the duplex sign in a dangerous condition to the public, and a member of the public was injured by reason of the negligence of the landlord in that respect, it would not be because the landlord was responsible for the negligence of Joe Joseph, but for its own negligence, and, therefore, the exoneration of one would not excuse the other.

A tort charged to have been committed by two persons is several as well as joint, unless the liability of one is because of his responsibility for the act of the other instead of for his own act. Woolworth Co. v. Erickson, 221 Ala. 5,127 So. 534; Sloss-Sheffield Steel Iron Co. v. Wilkes, 231 Ala. 511 (21), 165 So. 764, 109 A.L.R. 385; City of Birmingham v. Corr, 229 Ala. 321, 157 So. 56.

This second theory was and is discussed merely as an incident to the first above, and is not here material because there is no evidence of any such surrender of all control of the sign to Joe Joseph.

On the evidence as presented, the jury could find that the Atlantic and Pacific Tea Company continued to owe the public a duty to use due care not to permit the sign to be or become dangerous to it, and negligently failed of that duty. This was within the theory of the complaint.

Application for rehearing overruled.

GARDNER, BOULDIN, and KNIGHT, JJ., concur.

On Application for Further Rehearing.