9 S.E.2d 773 | Ga. Ct. App. | 1940
Lead Opinion
1. Where an action sounding in tort is brought against a corporation in the county where the cause of action originated, and it is alleged in the petition that the defendant has an agent in charge of its affairs in said *684 county, and the sheriff's entry shows service on such alleged agent "in charge of defendant's office" in such county, and the defendant traverses the return of the officer, he is a necessary party to such traverse.
2. In a tort action brought because of alleged negligent construction and maintenance of rented property belonging to a corporation, the agent of such corporation in charge of its office in said county, and in charge of the renting, repairing, and keeping in repair of such property, is the agent of such company to be served in said county, and the superior court of such county has jurisdiction of the suit. Code, § 22-1101; Martin Thompson Inc. v. Allen,
3. A petition which alleges acts of concurrent negligence committed by the owner and tenant in possession of the property, which acts concurred in causing the injury, is not subject to demurrer because of a misjoinder of parties or causes of action.
4. Under the provisions of the act of Congress creating the Home Owners Loan Corporation (12 U.S.C.A. 985, § 1463), such corporation may sue and be sued in any court of competent jurisdiction. Federal or State. This language does not prevent the bringing of tort actions against such corporation. Especially is this true when it appears that the alleged tort arose out of business transactions conducted in competition with private business, such as the owning and renting of houses to members of the general public.
5. "Although a nonsuit be erroneously refused, if the subsequent proof in the case cures the original deficiency or variance from the pleading, in the plaintiff's proof, no error can be successfully assigned upon the failure to grant the nonsuit."
6. Where the owner of the building is shown to have made inspection of the building for the purpose of discovering defects therein, he is chargeable with notice of any defects which should have been discovered by the exercise of ordinary care and diligence.
7. Under the evidence submitted, it was a question for the jury whether in the exercise of ordinary care the defendant should have discovered the defective condition of the floor or landing on the stairs which caused the injury complained of.
8. The remaining assignments of error are not sufficiently meritorious to require a reversal. The evidence supported the verdict, and the court did not err in overruling the motion for new trial.
In March, 1939, Mrs. Leila G. Brazzeal, the widow of the plaintiff, filed a petition alleging that J. J. Brazzeal died on August 9, 1938, and that she had been appointed administratrix; and she prayed that she be made a party plaintiff. At the May term, 1939, the corporation demurred to this petition and application, on the *686
ground that it appeared from the application that at the time the second original was served on the corporation, August 12, 1938, the plaintiff, J. J. Brazzeal, had died on August 9, 1938; and that such service was ineffectual, because there was no party plaintiff at the time of the service. This demurrer was overruled, and Mrs. Brazzeal was made a party as prayed. To this order exceptions were taken. We will consider these exceptions first. It appears that the plaintiff had the defendant corporation served by serving its alleged agent in Decatur County. An answer was made, denying that the agent served in Decatur County was in fact its agent authorized to accept service. By reason of this plea an order was taken for a second original to be issued and served on the defendant corporation in Fulton County. This second original was served on August 12, 1938. At the November term, 1938, the defendant, still reserving its rights under its plea to the jurisdiction, filed an answer to the suit as served by the second original, the answer being identical with the answer filed at the preceding May term. The administratrix filed her petition to be made a party, and the defendant, by its demurrer filed at the May term, 1939, contended that no suit was pending against it, because of the fact that at the time of the service of the second original the plaintiff was dead. It will be recalled that there was at that time before the court a service perfected on the alleged agent of the defendant corporation, to which service it had filed its traverse and plea to the jurisdiction on the ground that it was not a resident of Decatur County. The administratrix was entitled to be made a party plaintiff to any action filed by her intestate before his death. Under the Code, § 3-401, she was entitled to be made a party to the suit pending in May, 1938, and to a suit based on any second original issued in such action. The defendant, having filed its answers to every action served on it, whether in Decatur County or Fulton County, and it not appearing that it did not know of the plaintiff's death, will not now be heard to say that the entire action as to it should be dismissed. InRountree v. Lathrop,
The petition alleged that the defendant corporation was the owner of a two-story building in Bainbridge, Georgia, known as the Wilson House, the second floor of which was maintained as a rooming-house for the accommodation of transient guests received and entertained for hire. The corporation rented a part of said building to Mrs. Wilson who operated it as a hotel. The plaintiff was a guest in said hotel on the night of November 11. The guests of the hotel parked their cars in a lot back of the hotel. There was a stairway at the back, which was used by guests in going to and coming from their parked automobiles. The plaintiff used these stairs on the morning of November 12 in going to his car; and when he stepped on the landing of the stairs, which appeared to be all right, it broke through with him, and his leg was broken, and he was caused other injuries, for which he sued. It was alleged that on several occasions before November 12 Mrs. Wilson notified J. B. L. Barber, the agent of the Home Owners Loan Corporation and in charge of the renting and repairing of this building, of its dangerous condition, and in particular as to the stair landing which caused the injuries sued for; and that such notice had been given in ample time to have such defects repaired. The plaintiff's injuries were the direct result of the defendants' negligence in failing to repair such stairway after having notice of such defects, no sign or warning having been placed to warn plaintiff *688 of the danger of using such stairs. It was alleged that the stairway was so constructed as to be unprotected from the weather, that it was floored with one-by-four flooring, that it had been standing in such condition for several years before the injury, and had been constructed of lumber of flimsy and inferior quality, making it susceptible of immediate deterioration, and constituting it a menace and a dangerous entrance and passageway into the building, and that Mrs. Wilson had notified the owner, the defendant corporation, of its dangerous condition many times before the date of the accident. In addition to the failure to repair, it was alleged that the defective construction of the stairway contributed to the injury. The demurrer was on the grounds, that no cause of action was set forth; that there was a misjoinder of parties and of causes of action; that the petition was multifarious; and that the defendant corporation was such an agency of the United States that a suit against it was a suit against the United States; that the United States could not be sued in a tort action, that it had not consented to be sued, and that it was not the intention of the act of Congress creating it that it should be subject to tort actions.
Was there a misjoinder of parties or causes of action? The lessee of a building in which he conducts a hotel is liable for a defective condition of the building or its appliances which causes injury to guests therein. Bullard v. Rolader,
Another ground of demurrer was that the Home Owners Loan *689
Corporation is such an agency of the United States Government that it may not be sued in an action of tort, and is not liable in damages for nonfeasance. The act creating the Home Owners Loan Corporation,
It will be noted that the act creating the Home Owners Loan Corporation, in giving to it the right to sue and be sued, did not limit it to suits on contracts or exclude torts from its operation. 12 U.S.C.A., § 1463. The Supreme Court of the United States, in the recent decision (written by Mr. Justice Frankfurter) of Keifer v. R. F. C.,
The evidence failed to disclose that Mrs. Wilson notified the Home Owners Loan Corporation of any alleged defects. On the contrary it is affirmatively shown that no such notice was given by the lessee to the lessor. It does appear, however, from the evidence that the defendant made constant inspection of the building and the stairway, and that such inspection was made by two or more separate agents employed for that purpose, and that they found no apparent defects in said stairway landing. One of these witnesses, who made an inspection two weeks before the injury, testified that the underside of the landing appeared to be water-stained. The plaintiff introduced in evidence two boards or planks which, it was testified, were a part of the flooring which broke through and caused the injury. While the petition alleged that Mrs. Wilson rented the building from the Home Owners Loan Corporation, and that Mrs. Wilson discovered the defect and notified the owner in time for repairs to be made, and the proof failed to substantiate this last allegation, it was shown by the evidence that the Home Owners Loan Corporation did in fact make constant inspection of the stairway, one witness testifying that his duties as an employee of the owner required twelve inspections of the property inside of three years. Some of these inspections were made in June, some in August, and the last two weeks before the accident in November. We think this evidence was sufficient to show that the defendant had notice of any defects which would or could have been discovered by the use of ordinary care in making such inspections. The defendant made a motion for nonsuit when the plaintiff rested his case. Although it might have been proper for the court to sustain such motion when it was made, the subsequent proof brought out the facts above outlined, and under such circumstances it has been held not error requiring a reversal to overrule the motion for nonsuit. Rice v. Ware,
The contract introduced in evidence, in addition to holding the *692
landlord harmless as to any claims or suits caused by the "condition of the premises," retained in the landlord the right to inspect and repair to keep the premises in "tenantable condition." We think this contract reserved to the landlord a qualified possession of the premises for the purpose of keeping it in good repair, and the evidence showed that it made regular and systematic inspection. As was said in Crossgrove v.Atlantic Coast Line R. Co.,
The remaining assignments of error need not be discussed as *693 none would require a reversal. The court did not err in overruling the motion for new trial.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.
Addendum
After a careful consideration of the grounds of the motion for a rehearing, it is overruled.
Broyles, C. J., and MacIntyre, J., concur. Gardner, J.,disqualified.