55 Ga. App. 322 | Ga. Ct. App. | 1937
“A landlord is not an insurer, but he is under a legal duty to keep the rented premises in repair, a-nd is liable in damages to a person who receives injury while lawfully upon the premises and who is in the exercise of due care, if the injury arises . . because of his failure to repair defects of which he knows or in the exercise of reasonable diligence ought to know.”
The court charged the jury: “I charge you that it is the law of this State that the landlord must keep the premises in repair and is responsible to others for damages resulting from defective construction or for damages from failure to keep the premises in repair.” This charge is in conformity to the Code, §§ 61-111, 61-113. It is the law of this State, and was properly
In her pleadings the plaintiff made no contention that the injuries she sustained were proximately caused from a faulty conslruclion of the house; nor do we find in the record any evidence of any faulty construction, except from a witness of the defendant who testified that the nails in the floor were too short; and we do not construe his testimony to mean that the nails were not proper for the use of nailing flooring, or that because of the shortness of the nails the floor was caused to give in, for the witness himself testified that he had often used the same kind of nails for the same purpose. While it is true that the charge, “It is the law of this State that the landlord is responsible to others for damages resulting from defective construction,” was not applicable to the facts of the case, we do not think it could have been harmful. The plaintiff made no such contention in her pleadings, and her entire evidence was that the defect arose because of the decay of the sills. The judge charged the jury that the plaintiff must recover, if she recovered at all, on one of'the grounds of negligence contained in the petition, which did not charge the defendant with negligence in the construction of the house. Moreover, at the end of the charge, counsel for the plaintiff in error called the court’s attention, presumably in the presence of the jury, to the alleged error in this charge, and the court then charged: “Of course you understand the question of the construction of the house originally has nothing to do with this case.” By this the jury must necessarily have understood that, since no contention had been made concerning the construction of the house, there was before them no issue of negligent construction.
Error is assigned on the following excerpt from the charge: “When the landlord is notified that the premises are out of repair, it becomes his duty to inspect and investigate in order that he make such repairs as the safety of the tenant requires. When, if, and after such notice has been given, the landlord fails within a reasonable time to make the repairs, he is chargeable with notice of all defects that a proper inspection would have discovered.” Error is assigned because there was no evidence that the landlord failed at any time to make any repairs the necessity for which he
Complaint is made that the court charged that “the petitioner alleges that the defendant was notified several times of the defective condition of said back porch on the right-hand side, on account of it being springy and dangerous, and the petitioner alleges that the defendant promised to fix the porch several times, but did not repair the same until after your petitioner was injured,” the error assigned being that the evidence did not support this charge. After reading the charge it is patent that the judge was merely stating to the jury the contentions of plaintiff, by a narrative reading of the allegations of the petition. Then there was no error, even if the contention stated was not supported by any evidence. W. & A. R. Co. v. Lochridge, 39 Ga. App. 346 (146 S. E. 776); Matthews v. Seaboard Air-Line Ry., 17 Ga. App. 664 (87 S. E. 1097); Georgia Ry. & Power Co. v. Simms, 33 Ga. App. 535 (136 S. E. 850); White v. Knapp, 31 Ga. App. 344 (130 S. E. 796); Georgia Railway & Electric Co. v. Carroll, 143 Ga. 93 (84 S. E. 434); Friedman v. Martin, 43 Ga. App. 677 (160 S. E. 136). This was certainly an allegation of the plaintiff's petition; this was just what the judge charged; and the question whether the evidence supported the allegations is not important in determining the correctness of the charge. “It is one thing to state ,what a party contends, and another and very different thing to state the law applicable to such contention.” Atlanta, Knoxville & Northern Ry. Co. v. Gardner, 133 Ga. 83 (49 S. E. 818); Newton v. Seaboard Air-Line Ry., 17 Ga. App. 634 (87 S. E. 908); Mayor &c. of Americus v. Gammage, 15 Ga. App. 805 (84 S. E. 144). We have carefully examined the remaining as
Judgment affirmed.