39 Ga. App. 799 | Ga. Ct. App. | 1929
J. A. Tesler broughtan action for damages against Mrs. T. T. Buchanan and Mrs. T. T. Brannen, alleging in substance as follows:
1. Defendants are residents of Fulton county, Ga.
2. Defendants have damaged plaintiff in the sum of $10,000.
3. On January 1, 1925, plaintiff leased from defendants a storehouse in the City of Atlanta, known as 20 West Mitchell Street, for five years, at a rental of $300 per month.
4. Plaintiff rented said property for his' own use, and was conducting therein a profitable, retail clothing business.
5. “The defendants were sisters of one M. L. Thrower, and he was the owner of several store-houses lying next west of the premises leased by the plaintiff, except the one immediately west and adjoining it, and he owned the west half of that store, the east half being the property of the plaintiff’s lessors.”
6. Plaintiff’s lessors and said Thrower inherited their property,
7. Between the store-house leased by plaintiff and the one owned by said Thrower “there was no brick or other substantial partition, but the same was constructed with what is known as beaver-board and covered by paper.”
8. During the month of February, 1926, while plaintiff was occupying the store leased from the defendants and doing a profitable business therein, said Thrower “tore down and removed the brick wall along the west side of said property, and sawed in two the store-house next west of the store leased by the plaintiff, and tore away the entire west half thereof, and left no protection for the plaintiff’s property from rains or storms, except the flimsy beaver-board wall.”
9. Plaintiff immediately notified defendants of the unsafe condition of said premises, and asked that his stock of goods be protected from damage, but “defendants failed and refused to make such alterations and repairs in the said premises as to protect the plaintiff’s stock of goods.”
10. “In consequence of the said exposed condition, rains and storms came and greatly damaged your petitioner’s stock of goods as followsmen’s clothing in the sum of $5,600.63; ladies’ dresses, in the sum of $412; and ladies’ hats in the sum of $28; and plaintiff was otherwise damaged, inconvenienced and annoyed to the extent of $3,959.47, — “all of which damage was caused by the rains and storms aforesaid by reason of the fact that the defendants failed and refused to erect a substantial wall and roof for the protection of plaintiff’s property.”
11. “It was the duty of the defendants, as the plaintiff’s landlords, to protect his stock of goods by erecting and providing such walls and roof, or other devices, as would have kept out the rains and storms which damaged the plaintiff’s stock of goods as aforesaid.”
The defendants demurred to the petition: (1) because it set forth no cause of action against them or either of them; (2) “because the lease referred to in paragraph 3 of said petition is not
The substance of said amendment follows: 1. “The damage to plaintiff’s goods was caused by water entering the store-room by reason of the roof being out of repair.” It was the duty of the defendants, under the lease contract, to repair the roof,- and the damage complained of “was the direct' result of defendants’ failure to repair the roof so as to make it serve the purpose of a roof.” 2. “Defendants knew that M. L. Thrower was razing the adjoining building, and that a beaver-board wall would remain as an outside wall, and would be wholly inadequate to protect plaintiff’s goods from the elements; defendants knew that a wide gap would result between the roof and the wall of their building, due to M. L. Thrower tearing away his adjoining building; and defendants made no effort to protect plaintiff’s goods, though they knew that plaintiff’s stock was being endangered by reason of the adjoining building being torn away.” 3. “That defendants knew, or had reason to believe, that the roof of their building would subside and sink by reason of its support being taken away; that said roof did subside and cause water to pour into the store and on plaintiff’s goods, and this damage was entirely due to defendants’ failure to repair and support its roof.” 4. “Plaintiff notified the defendants of the activities of Thrower and that damage would result to plaintiff, and the defendants refused to do anything to protect plaintiff’s goods,” said notice having been given in ample time. 5. “Even if the original defective condition of defendants’ building was caused by the acts of M. L. Thrower and by defendants’ failure and refusal to repair the roof and make structural replacements after due notice, the act was thereby adopted by the defendants as their own, and through their failure and refusal to perform their covenant to repair the roof.”
The defendants admitted paragraphs 1, 5, 6, and 7 of the peti
J. A. Tesler testified that he went into possession of the leased premises in January, 1925, and was conducting therein a ladies’ and men’s ready-to-wear business; that he occupied the first floor, but did not rent the second story; that up to the time M. L. Thrower removed the building west of him, his store was protected from the weather; that about Februarjr, 1926, Thrower began tearing down the part of the building to the west of the store occupied by witness; that each of his lessors was present several times during the demolition of said building; that Thrower began tearing down the building in February, “and it took about a week or two when he started over on my side;” that he immediately notified his lessors to give him some kind of protection; that about nine feet of the store immediately west of the one occupied by plaintiff (i. e. the half of that store that belonged to defendants) was not torn down, and his wall was not “right open to the elements then;” that his lessors put the brick wall up probably four weeks after witness’s second damage; “that the first damage came on Saturday, June 19, and the second damage came on Tuesday of the following week;” that he could not tell whether the roof was fixed or not, because he had never been on the second floor to find out, but that he supposed it was fixed after the water came in; that after the wall was fixed he did not have any more trouble; that he notified Mrs. Buchanan on June 19, and she reached his store at about six or seven o’clock p. m. the same day; that the rains that caused the damage were ordinary rains unaccompanied by violent winds; that “the water came through the ceiling, straight out at one time, in one lump, and sprinkled over the hats in the middle of the store, and sprinkled over the dresses eighteen feet further out from the wall;” that it was from the ceiling, not from the wall; that there Was spine paper off the ceiling; and that his goods were damaged,
Mrs. T. T. Buchanan testified: that she was one of the defendants; that the other defendant, her sister, Mrs. Brannen, was in Havana, Cuba, at the time of the rain; that in response to a telegram from Mr. Tesler (the telephone being out of order because of the windstorm and rain that day) she went immediately to the store; that the wind was blowing very hard, this way and that way, coming in gusts, and that it was still raining when she reached the store; that Mr. Tesler told her “that the rain had come down the side of the wall there and wet some of the suits on the shelves;” that she looked at both the wall and the ceiling, and that the rain had come down the side of the wall next to the little shoe store that was between him and the place where Mr. Thrower tore the building down, and “not over in the middle of the store;” that she had nothing to do with tearing down the wall, and knew nothing about it until Mr. Thrower called her up to go down and build a wall; that when she went down next day she found that he had torn down his half of the store they owned together; that on Monday she sent a carpenter to see about the roof; “that there was no leak in the roof at all,” and that it never had leaked; that she built the wall as soon as possible, but that it took several weeks to do it; §he knew that Mr.. Thrower was. tearing down buildings on, hi§
The jury found a verdict for the plaintiff for $730, and the court overruled defendants’ motion for a new trial.
It will be observed that by his amendment to meet defendants’ general demurrer the plaintiff planted his case upon the proposition that the alleged damage “was the direct result of defendants’ failure to repair the roof so as to make it serve the purpose of a roof;” and that the roof “subsided” because its support was taken away. So far as we have been able to ascertain from a careful study of the record, it does not appear either that the roof subsided, or that it leaked. Paragraph 3 of the lease contract reads: “Lessee hereby releases lessor from any and all damage to both person and property and will hold the lessor harmless from all such damages during the term of this lease.” Paragraph 13 of said contract is: “It is agreed that lessor is to be called on to make no repairs of any nature whatsoever during the term of this lease, except repairs to roof.”
Judgment reversed.