Thomson v. Avery , 67 Ga. App. 671 ( 1942 )

1. It is not cause for a new trial that the court charged the jury a Code section, part of which was applicable to the case under consideration and part inapplicable, where it does not appear that the charge of the inapplicable part was calculated to mislead the jury, or to erroneously affect their verdict, or was prejudicial to the rights of the movant.

2. In a suit for damages by a tenant against a landlord on account of personal injuries, where one of the grounds of negligence was that the landlord, in repairing a portion of the floor of the rented premises, should have discovered the defective condition of a portion of the floor in the same room through which the plaintiff fell, the court did not err in charging the jury that "if the facts be such that by the exercise of ordinary care in the performance of his obligation to keep the premises in repair the landlord ought to have known of a latent defect therein, then he becomes answerable in damages to the tenant for personal injuries sustained by reason of such defect."

3. The court properly charged the jury that "a landlord may be liable for damages resulting from defects of which he had no notice if, while making repairs, he could, in the exercise of ordinary care, have discovered such defects," where the defects repaired by the landlord and the defects causing the injuries consisted of defects in the floor of the same room.

4. Where the court in its charge fairly presented the contentions of the parties as they appeared in the pleadings, it was not error, in the absence of a request, for the court to fail to specifically charge one of the contentions of the defendant.

5. It was error, under the evidence, for the court to fail, even without a request, to charge the jury in effect that unless such portion of the rented premises was actually built or constructed or caused to be constructed by the landlord the plaintiff could not recover.

6. In a suit by a tenant against a landlord to recover damages for personal injuries, where the liability of the landlord is predicated on failure to keep the premises in repair, and on the landlord's defective construction of a portion of the premises, it was error for the court to fail to instruct the jury as to the distinction between the landlord's liability for defective construction and his liability for failure to keep the premises in repair.

DECIDED JULY 10, 1942. REHEARING DENIED JULY 22, 1942. Beatrice Avery filed suit against A. D. Thomson in which she sought damages for personal injuries sustained as the result of the alleged negligence of the defendant. The petition alleged that the plaintiff at the time of her injury, on or about July 29, 1940, was a tenant of the defendant, having rented on May 21, 1940, from the defendant's agent, Sharp-Boylston Company, a part of a certain house located in Atlanta, owned by the defendant. The petition alleged that "approximately" a week after the plaintiff occupied a portion of this house two boards in the rear room thereof broke under the plaintiff's weight, and her left leg went through the floor; that for this injury she made no complaint against the defendant; that she notified the defendant thereof and he sent workmen to the house who repaired the broken place in the floor of the back room of the plaintiff's portion of the house; that immediately thereafter the plaintiff notified the defendant that three boards in the floor of the front porch of the premises were in an unsafe and ill-repaired condition, and the defendant immediately repaired these boards by replacing them with other boards and painted them, and that thereafter, on July 29, 1940, the plaintiff walked upon "what appeared to her to be a sound, walk-worthy, and suitable part of the floor of the rear room adjacent to and just inside the back door of her said apartment," when such floor "fell from under her feet and downward under the house, which plunged her entire body into said hole," thereby producing the injuries sued for.

The plaintiff alleged that the defendant was negligent in that the part of the floor that fell through was not securely nailed or otherwise fastened to the floor joists; that all of the boards which fell under the weight of the plaintiff's body were not securely fastened to and across the first-floor joist in a workmanlike manner, as should have been done; that the defendant in constructing the portion of the floor that fell through with the plaintiff did not saw any of the boards so that they would even reach the first forward floor joist from the door to the rear room; that the defendant in constructing the flooring immediately "inside the rear door of the rear room merely sawed off the boards on the back side of the floor joist approximately twenty inches from the rear door, thus leaving no floor space upon which to nail, rest or fasten" the floor boards that fell through, all of which seemed on the top side to be secure, but in constructing this portion of the floor the defendant nailed such boards to a small scantling on the under side next to the joists, and this scantling was not nailed to or in any way fastened securely to the adjacent joists, and therefore when the plaintiff's weight was placed on this floor space the scantling pulled loose and the floor boards, with the plaintiff, fell through.

The defendant admitted the tenancy of the plaintiff, and admitted that he sent workmen to the house who repaired the broken place in the floor of the back room just under the door leading from the front room to the rear room of the plaintiff's apartment, and that immediately thereafter the plaintiff again notified the defendant that three boards on the floor of the front porch were in an unsafe and ill-repaired condition, and that the defendant immediately repaired these three boards by replacing them with other boards and painting them. The defendant denied that he was negligent and that his negligence caused the plaintiff to be injured as alleged in the petition. As to the remaining allegations of the petition, relatively to the plaintiff's injury, to her falling through the floor on a former occasion, and to her falling through the floor on the occasion sued for, the defendant neither admitted nor denied the same.

By an amendment the plaintiff alleged that it was the duty of the defendant when he repaired the first break in the floor of the back room to have examined all other parts of the house, and particularly the floor in the back room, for any probable defects in the floor near the back door through which the plaintiff fell on July 29, 1940; and that the defendant knew or should have known of the dangerous condition of the space of floor through which she fell on that date. In this amendment the plaintiff added the following allegations: "That said defendants, sometime prior to the time that plaintiff moved into said house, did repair a prior rotten spot (the exact time of which plaintiff does not know) in front of said door which was over the exact spot through which plaintiff later fell immediately on the inside of the back door of the back room as alleged in her original petition, and that in repairing same defendant did, through his agents and servants whose names are unknown to plaintiff, defectively repair same; that is to say, when defendant repaired said space of floor immediately inside the back door through which plaintiff fell on the 29th day of July, instead of extending the space of floor one-half way across the first-floor joist forward from the back door he did saw off the floor flush with the back of the first forward joist in such a way that the new boards in this space of floor through which plaintiff fell came up flush to the rear edge of the first forward floor joist from the said back door, and that defendant only purported and pretended to fix said space of new floor by the tacking of two nails through a small scantling or cleat, neither of which were driven over one-half inch into this then existing half-rotten first forward joist from said rear door, . . and that it was this said space of floor just inside of said back door which was insecurely, improperly and insufficiently nailed through said scantling or clear into said first forward joist which pulled loose and fell like a trap door causing plaintiff to be injured."

The trial resulted in a verdict in favor of the plaintiff for $150. The judge overruled a motion for new trial, and the defendant excepted. 1. In the first special ground of his motion the defendant contends that the court erred in charging all of § 61-111 of the Code, in that the portion thereof that a landlord "shall be liable for all substantial improvements placed upon [the premises] by his consent" was inapplicable to the case and was prejudicial to the defendant and misleading to the jury. While the portion of the Code just quoted, dealing with the liability of a landlord for improvements placed on rented premises by his consent, had no application to the issues involved in the present case, which are whether the landlord was liable to the plaintiff because he improperly constructed a portion of the floor of the premises that fell through with the plaintiff, and whether, even if he did not construct such portion of the floor and the same was constructed by his predecessor, that he was liable to the plaintiff because he ought to have discovered the improper construction and defective condition of the portion of the floor that fell through with the plaintiff when he made certain repairs to another portion of the floor of the same room of the house, pursuant to notice given him by the plaintiff of the defective condition of the portion of the floor so repaired, the giving of the entire section in charge to the jury was not prejudicial to the defendant and did not tend to confuse and mislead the jury.

2. Error is assigned in ground 2 because the court charged the jury as follows: "In reference to the defects to which I have just called your attention, the law says accordingly that if the facts be such that by the exercise of ordinary care in the performance of his obligation to keep the premises in repair the landlord ought to have known of a latent defect therein, then he becomes answerable in damages to the tenant for personal injuries sustained by reason of such defect." Under the facts of this case, the above charge was not error on the ground that there were no facts alleged in the petition or amendment, or shown by the evidence, which would justify the jury to find that the defendant in the exercise of ordinary care could have discovered the alleged defective manner in which the flooring was constructed or repaired, which consisted in insecurely nailing the cleat to the joist, for the reason that it is apparent from the allegations of the petition that no one could have seen by inspection just how far the nails were driven into the joist, and because as the defendant contends no landlord would be chargeable with knowledge of the improper manner in which this portion of the flooring was constructed merely because he had been given notice of rotten boards on the front porch and on the other side of the room in which this flooring was located, for the reason that the defects incident to the rotten boards were not adjacent to the portion of the floor which fell through with the plaintiff, nor were the defects of the same nature and kind as those relating to the rotten boards in the floor. It is our opinion that the above instruction was not error for the reason assigned. Under the evidence the jury would have been authorized to find that if the portion of the floor which fell with the plaintiff had not been constructed by the defendant, or pursuant to his direction, the rotten condition of the floor of this room, of which the defendant was given notice when the plaintiff fell through the first time and which the defendant undertook to repair, should have put him on inquiry to make a proper inspection of the flooring of this room.

3. In ground 3 the defendant contends that the court erred in charging the jury that "a landlord may be liable for damages resulting from defects of which he had no notice if, while making repairs, he could, in the exercise of ordinary care, have discovered such defects." The defendant contends that while this instruction stated a correct principle of law, it was not appropriate, under the pleadings and the evidence, because the defects which caused the plaintiff's injury were not adjacent to the other defects which were repaired by the defendant, nor were they of the same nature, and there was nothing to authorize the jury to assume that the defect of construction in the flooring through which the plaintiff fell could have been discovered by the exercise of ordinary care when the defendant repaired certain rotten boards on the front porch and also certain rotten boards in a different part of the same room which contained the portion of the flooring that fell through with the plaintiff. For the reason stated in the foregoing division of this opinion it is our opinion that the above charge was applicable.

4. The defendant assigns error in ground 4 on the failure of the court to charge without request "in appropriate language, that one of the contentions of the defendant was that he had not built or constructed the patch in the floor which fell through and injured the plaintiff." In stating the contentions of the parties the court instructed the jury that the plaintiff, in her petition as amended, contended that the defendant was negligent in certain respects in complying with the duty which he owed to her as landlord to keep the premises in repair and safe for her use, which negligence was the direct cause of the injuries which she sustained, and that by reason of such negligence the defendant was liable to her for the damages sued for. The court then stated to the jury that "briefly stated" the above was an outline of the plaintiff's contentions which appeared from her petition as amended. The judge then, as to the defendant, instructed the jury that the defendant denied the material allegations on which the plaintiff based her alleged right to recover, and denied that he had been negligent in the respect claimed by the plaintiff, and denied that he was liable to her in any sum by reason of any negligence on his part by which the plaintiff alleged that she was injured, and "denies all of the material allegations upon which the plaintiff's claim for recovery is based." If the defendant had desired a more detailed statement of his contentions a proper request therefor should have been made. There is no error shown in this special ground of the motion.

5. In ground 5 it is urged that the court erred in failing to charge the jury "that unless they believed that the patch in question was actually built or constructed by the defendant or his agent that the plaintiff could not recover in this case." Under the pleadings and the evidence the plaintiff's case was predicated on the alleged negligence of the defendant in not discovering, while making repairs to the flooring of a room in rented premises, a defective and rotten condition of another portion of the floor not adjacent but near thereto, and was also predicated on the improper and defective construction by the defendant of the portion of the floor of the room which fell with the plaintiff, and that because of this defective construction of this portion of the floor the flooring fell with the plaintiff. There was an issue as to whether this portion of the flooring had been constructed by the defendant after he had acquired the premises, about three or four years before the plaintiff fell, or whether this portion of the flooring had been so constructed at the time the defendant acquired the premises about ten years prior thereto.

The liability of a landlord for injuries occasioned by defects in construction exists only in cases where the structure is built by him in person or under his supervision. Godard v. Peavy,32 Ga. App. 121 (122 S.E. 634). The landlord will not be liable for an injury to a tenant on account of defective construction of rented premises which the landlord has not constructed or caused to be constructed. However, where a building was defectively constructed by a predecessor in title of the landlord, and the landlord knew or in the exercise of reasonable diligence could have known of its improper construction before the tenancy was created, he would be answerable to the plaintiff for injuries sustained by reason of a negligent failure to put the premises in a safe condition if the tenant could not have avoided the injury by the exercise of ordinary care.Adams v. Klasing, 20 Ga. App. 203 (92 S.E. 960). If the landlord did not build the house, but acquires it after it is built, and undertakes to repair or replace a portion of the premises, he is liable in a proper case if he negligently repairs or constructs such portion of the premises. If the landlord, before the commencement of the plaintiff's tenancy, had undertaken to repair or replace a portion of the floor of the rear room of the premises subsequently rented by the plaintiff, and had done so in an improper and defective manner, as the result of which the floor fell with the plaintiff, he would be liable without notice of the defect. On the other hand, if the portion of the floor which fell had been defectively constructed by being nailed into a rotten cleat and the rotten cleat insecurely nailed into the floor, before the defendant acquired the house, there would be no defective construction as to the defendant and he would not be liable because this portion of the floor fell, unless he knew thereof before he rented the premises to the plaintiff or unless he was notified thereof by the plaintiff, or unless, in repairing another portion of the floor, he should, in the exercise of ordinary diligence, have discovered the defective condition of the portion that fell with the plaintiff.

It follows that, under the pleadings and the evidence, one of the principal issues in the case was whether the portion of the rear-room floor that fell with the plaintiff was actually constructed or built by the defendant or under his supervision, and therefore it was error for the court, even without a request, to fail to charge the rule that unless the jury believed that the patch in question of the portion of the floor in question was constructed by the defendant or under his supervision or direction he would not be liable for defective construction. There was no question raised relatively to knowledge by the defendant of the improper construction before the tenancy was created. The court nowhere in its charge gave to the jury the law relatively to liability of a landlord, or his freedom from liability, for defective construction of rented premises. The failure of the court in this regard requires the grant of a new trial.

6. In ground 6 it is contended that the court erred in failing to instruct the jury as to the distinction between a landlord's liability for defective construction and his liability for failure to keep the premises in repair. See Code, § 61-111;Godard v. Peavy, 32 Ga. App. 121 (122 S.E. 634); Cassel v. Randall, 10 Ga. App. 587 (2) (73 S.E. 858); Driver v. Maxwell, 56 Ga. 11;Whittle v. Webster, 55 Ga. 180. For the reasons stated in the foregoing division of the opinion the court erred in failing to charge the jury on this issue and to draw the distinction between the liability of a landlord for defective construction and his liability for failure to repair. The court instructed the jury fully as to the liability of the landlord for failure to repair, but nowhere in his charge did he give the rule as to the liability of a landlord for defective construction.

The evidence did not demand a verdict for the plaintiff, and it was error to overrule the motion for new trial.

Judgment reversed. Sutton and Felton, JJ., concur.