I cannot concur in the conclusion reached by the majority of the court that the court's charge, made the basis of appellant's second assignment, is not erroneous. The effect of this charge is, in my opinion, as contended by counsel for appellant, and the proposition of law embodied in the contention is elementary. As argued by counsel for appellant, if Mrs. Sanger broke her covenant to repair the roof of the stable, it was, notwithstanding, the appellee's duty to use ordinary care in the protection of his property and to thereby prevent as much damage as could be prevented by the use of such care. This duty rested upon appellee continuously from the time of the breach of the covenant to repair, until the leaks of the roof were stopped by the new roof placed upon the building. The court, by the charge in question, in effect told the jury that this duty did not arise until such a time as appellee ought reasonably to have concluded that appellant did not intend to repair the roof as she had agreed to do. Thus, according to the instructions of the court, the appellee, during the time elapsing before this period was reached, was under no obligation to use any care whatever to protect his property and mitigate or lessen the damages consequent upon the failure of appellant to repair. The roof began to leak, according to the undisputed testimony, in a few days after the lease was executed, and, according to the testimony offered by appellee, kept up continuously until some time in December, 1907, when the new roof was completed. During this time the appellee kept his buggies, wagons, phaetons, and other vehicles, and harness, blankets, feed, etc., in the building, and states, in substance, that during that period of time he was continuously being damaged as a result of the appellant's failure to repair the roof. He further stated that promises were made to repair the roof, and that he believed it would be repaired, but that none of these promises were kept, and the roof continued to leak until the new roof was put on the building.
Now, under the court's charge, the time when appellee should have concluded that appellant did not intend to repair the roof, in accordance with her covenant, had to be determined by the jury under the facts. Until that time was reached, according to the *Page 194 court's charge, there was no duty on appellee's part to repair the roof himself or exercise any care to mitigate the damages he was sustaining. In view of appellee's testimony to the effect that appellant, through her agent, continually promised during the time his property was being damaged that the roof would be repaired, and that he thought it would be done, the jury might have been authorized to say that up to the time of the completion of the new roof he had a right to reasonably expect the repairs; hence, under the charge, appellee was at no time under any obligation to exercise ordinary care to protect his property, so far as it could be done by such care and thereby lessen the damage he sustained. That portion of the paragraph of the court's charge immediately following the clause complained of does not, in my judgment, cure the error of the latter clause. The phrase, "under similar circumstances," used in that portion of the charge succeeding the charge, assigned as error, has reference to the circumstances referred to and embraced in the charge attacked, and said succeeding portion of the paragraph instructed the jury, in effect, that if, under such circumstances — that is, at such time as appellee, Smith, ought to have concluded that Mrs. Sanger did not intend to repair the roof of the stable — a reasonably prudent person would have repaired the roof himself, or would thereafter have made greater efforts to protect his property from injury than did Smith, then Mrs. Sanger would not be liable for such damage as would have been thereby avoided. Both sections of the paragraph therefore relieved appellee, for a portion of the time at least, during which his property was being injured, of the duty imposed upon him by law to use reasonable care to protect his property and thereby lessen the damage he was sustaining, so far as the same could be done by such care, and, construed singly or together, constituted affirmative error.
Nor can I concur in the conclusion reached by the majority of the court that there was no error in the trial court's action in refusing appellant's special charge, made the basis of her third assignment of error, because the same was sufficiently covered by the fifth paragraph of the general charge. For the reasons above stated, I think this paragraph of the court's charge was erroneous; but, if it should be conceded that it was correct, still it was not, in my opinion, the equivalent of the special charge here under consideration, and, having been requested, appellant was entitled to have the special charge given in the form presented, and thereby invoke the judgment of the jury upon the evidence relative to the issue embraced in it. Nowhere in the court's charge was the jury distinctly told that, if Mrs. Sanger breached her covenant to repair, it was appellee's duty to exercise due diligence, or ordinary care, to protect his property, and that for any injury that he could have avoided by the use of such diligence or care he could not recover.
I think the judgment of the court below should be reversed, and the cause remanded for a new trial.