*1 Greene, Neely, Buckley & DeRieux, Burt DeRieux, James A. Eichelberger, Joseph Manning, R. appellants.

Burdine & Freeman, Essley Burdine, D. M. Johnson, ap- pellee.

42273. CARMACK OGLETHORPE COMPANY. Argued September 9, 1966 Decided October Rehearing denied October

E. T. Hendon, appellant. Jr., Bynum &

Spearman, Hugh L. B. Goodwin, Spearman, W. Burgess, for appellee. Judge. on appeal The notice of was filed Chief

Felton, transcript filed in the 18, the of evidence was 1965, October docketed in 18, 1966, trial court on and the case was this July the July 19, Appellee court on 1966. filed motion dismiss appeal ground transcript on the of was not the evidence days filing appeal, within the of the notice of as filed (Ga. required Code by 1965, pp. 18, 26, Appel Ann. L. 6-806 § 11). late Practice Act of 1965, § (Ga. 1965, L. Code Ann. 6-804 provisions

Under the § may, transcript of evidence with- filing the time for pp. 18,21) by the trial extended party, the other be out motion or notice to appellate court to which judge justice judge or of the by any or granted, how- not be appeal extensions will is taken. Such Supreme Court; of the appellate either court. Rule 7 ever, by (Ga. Code Ann. L. Appeals. 6-806 Rule 12 the Court of § . . 26) goes “. pp. 18, by providing further 1965, [i]n grant judge to the trial duty all it cases, shall be the court necessary to enable may time as extensions of such proceed- transcript evidence reporter complete his (Ga. Ann. L. ings.” supplied.) Code 6-808 (Emphasis § fol- 497) provides pp. 28; 1966, pp. 493, L. Ga. to transmit the clerk is unable “If for reason any lows: required, or hereinbefore transcript the time record and within an time under section 6 when extension of obtained [Code Ann. the cause he shall state his certificate hereof, § 6-804] delay, (Emphasis appeal and the shall be dismissed.” supplied.)

The record in the present any does not case contain motion or application an time, any extension of or court order granting such statement the clerk’s cer- extension, any tificate of the cause delay. Although language is 6-808 mandatory as to certificate, such the direction that § shall not be necessarily dismissed is not conditioned upon being included, being provided such statement it delay is to be shall cause stated not be Harper dismissed. errors are Such amendable defects. Green, App. This is confirmed specified by grounds fact that the three for dismissal of appeals present do not include the situation. The cases dismiss- ing appeals for timely failure to file the enumeration of errors are not a basis for dismissal; ground this was removed *3 amendment, pp. Ga. L. 1966, 493, 500. The second sentence of (b) Code Ann. 6-809 is sufficiently specific inclusive and to § place appellate the burden the on generally courts to take what- ever action is necessary to procedural avoid dismissals on grounds. transcript Since the of evidence is now before this court, making unnecessary any perfect action this court to the and record, provide and since the does Act for dismissal filing transcript evidence, for late of the of the will be its merits. The motion to decided on dismiss is denied. the nonsuit was that the plaintiff basis of had con stairway knowledge tinued to use the with actual danger of its injured ous condition. “Where tenant is as a result a of defects part premises in a the of rented he which continued to after use knowledge that part premises such the a defective and on condition, part the failure the of the tenant to unsafe exercise ordinary care safety by for his own refraining from the use portion premises the such and avoiding thus the consequences to himself caused by negligence the landlord’s repair failing to bewill held to be the sole proximate cause of sustained, injuries the (Emphasis supplied.) Tay- [citations].”

515 (124 647). (1) lor v. Boyce, App. 105 “We Ga. 434 SE2d ‘knowledge dan- should not ‘notice with confuse of defects’ ger.’ defects in the may Even the tenant have notice of premises, including she yet premises, continue use the may to the if premises are she does not defective, which dangerous they ground suspect know are to or has no reasonable legally such of them not be to the fact. Her could con- use (181 negligent.” App. 805, sidered Mathis v. 51 Gazan, Ga. 808 503). “Knowledge SE itself con- of a defect does not and of knowledge stitute danger in the inherent defect. Whether or not plaintiff under the the was so circumstances this case question be a negligent be barred would contributorily (5) App. Ga. 566 a v. jury Howard, to decide.” Canfield (136 Kimpson 431) cit; Wingo, v. SE2d and (65 Krapf Sternberg, App. Ga. 837); (89 Owen, App. 326 SE Alexander v. 69); SE occupied physically had plaintiff

There was evidence that the fall; to her that apartment days prior ten approximately steps, at bed and someone used they when went to night, a per- sufficient to wake squeaking would a noise landing make noise; that sleeping complained son her had and husband landing only steps that were things that indicated them and it you stepped loose on were facts “[w]hen although she lower, loud”; and the noise would be so would apparent her or to nothing tell there was loose, could it was anything wrong steps so that eye there was with anyone might them; squeaking that she noticed this get hurt on night reported it to noise on the first of their occupancy manager’s office; men came to defendant’s that two maintenance apartment bathroom, steps at the about looked registered complaint, repairs but made no which she had also *4 day at that men the next and made time; that these came back repairs steps; that, the bathroom but not to she get girl some lighted stairway started her little down water, sturdy”; that the level wasn’t that “thinking she was “thinking she stepped level, when she on the was platform, thinking going not it going sturdy, that it was to be was to sink it stepped platform, as much as it that when she onto did”; sank and her flight she lost entire falling down the balance, stairs; that the stairway only ingress was the means egress to upper apartment, floor of the which contained bed- bathroom; rooms and no to her had one, knowledge, dam- aged the landing occupancy premises. she commenced

Although finding the evidence demanded a the plaintiff use the stairway continued to knowledge with actual of its condition, it said, cannot be as a matter law, defective she its knew dangerous condition was and unsafe, which would her make use it contributory negligence, which would bar her recovery injuries thus sustained. plaintiff The diligent was reporting the defect jury to defendant and the might have found that she justified in was assuming that the defect was dangerous from the fact that repairmen defendant’s own inspected the step one then day made repairs only parts to other premises day, next apparently indicating that steps not in were at least to make them safe. repair, need steps Even if the were in of repair, however, need defendant might be injuries held liable for plaintiff’s they if were caused dangerous a latent a inspection condition which reasonable have would revealed. v. Howard, Canfield supra, (3) and Furthermore, cit. if a even jury should decide that the defendant had not a had reasonable time within which any necessary repairs to make after being notified of the de- might it find that plaintiff the failure warn fect, that the stairway dangerous on the of defendant’s agents, upon opinion might whose she rely, found to be entitled to subject liability. would defendant to motion for nonsuit On legitimate evidence all inferences therefrom should be plaintiff. construed Caldwell v. Knight, favor of App. 747 thus evidence, construed, The questions negligence, contributory raised negligence, cause, proximate cause, been etc., which should have submitted to a jury determination. judgment granting in its court erred a nonsuit.

Judgment Frankum, J., reversed. concurs. con- Pannell, J., specially. curs Judge, concurring specially. I concur the re- with

Pannell,

517 opinion and 2 of 1 and Division reached Division suit the inti- concur with but I cannot judgment of the court, 13b opinion Section mations 1 of the Division (Ga. 29) as 1965, pp. 18, L. Appellate Practice Act (Ga. 1966, pp. 493, L. Act of 1966 by Section 10 of the amended an grounds for dismissal of provides and certain which 500), legislature has the controlling on court. The this is appeal, court, to this but it has right the method of to determine appeal. for of an right grounds dismissal to determine no et al. 42288. BOGLE ATLANTIC MILLS v. cause action, not the Where, here, only

Per Curiam : and prosecution of the case action, joint, is the continued through judgment against only verdict one of several by after the elimination of the other defendants defendants prosecute an election to verdicts, directed constitutes joint severally an action. action abandonment complaining only error to this court Thus enumeration of an presents question for the direction of verdicts no de- Arthurs, (3) (127 Allen v. cision. Hodges 819); Loan Assoc., SE2d Seaboard &c. is granted are appellees’ to dismiss motions concur. Eberhardt, J., JJ., Jordan and Bell,

Dismissed. P. Decided September Argued September 28, 1966 Rehearing 26, 1966. denied October Endicott, appellant. & Lucian J. Endicott, Endicott Benjamin III, Blackburn, B. Peek, Whaley Blackburn, & Haldi, appellees. Glenville et al. v. INSURANCE COMPANY

42290. MORRIS AMERICA. OF NORTH policy insurance to an Judge. 1. An indorsement Eberhardt, is (not providing that “this covering theft), policy loss . of the insured . . personal property extended to cover