All the defendants in a personal injury action appeal from the judgment and from the denial of their motions for judgment n.o.v. and for a new trial.
Plaintiff and her husband brought suit for injuries she sustаined when a 25-lb. light fixture fell on her while she was at work. They named as joint defendants her employers, the electrical contractor who had installed the fixture and the owner of the building. The respective allegations of negligence were: that the employers, who had personally put up a new ceiling, had designated the plаce for the fixtures to be mounted with knowledge there was no joist at one end to bear the weight; that the contractor, in violation of the Electrical Code, attached one end of the fixture to nothing but a thin batten nailed to the sheet-rock ceiling after he was unable to find a joist; and that the owner-lessor, because of its contractual right of entry, should have discovered the defective installation in making an inspection.
1. The lease between the owner and plaintiff’s employers provided that the lessor could enter to view the premises but that only upon default of the lessee and after due
*70
notice could the lessor make repairs. The lessee agreed to make any repairs or renovations to the interior. The lessee orally told the lessor in general terms what he planned to do, i.е., paint, put in some lights, etc., but neither gave details or submitted a plan. Both of the plaintiff’s employers agreed that a representative of the owner had beеn on the premises after the renovations but neither could say whether he had been in the room where the fixture fell. There is no direct evidence of retained сontrol over the premises by the lessor, but since it did not retain the right of repair except in the event of default, a surrender of possession may be inferred. The cases cited by plaintiffs concerning a lessor’s liability to third parties all involved contracts in which the right of repair was expressly reserved to the lessor. In any event, the lessor’s retention of the right to enter, inspect and repair is not inconsistent with a full surrender of possession to the lessee. See
Leonard v. Fulton Nat. Bank,
Plaintiffs raise the point that since the trial court never formally ruled on this defendant’s motion for directed verdict (which was made twice and deferred by the court) it is precluded from even bringing a motion for judgment
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n.o.v. We believe this is being overly technical. The court told counsel it would review some law in the afternoon beforе it made a decision on the motion. The record is silent on whether the court ever ruled. Nevertheless, by allowing the case to go to the jury, accepting its verdict, and entering judgment, the court tacitly denied the motion. For the analogous situation of overruling an objection by inaction, see
Lynn v. State,
140 Ga.
387 (8) (
2. Both the employer and the cоntractor raise the issue of the sufficiency of the evidence, each contending that if one were found negligent, the other could not be held liable. The evidеnce as presented would have authorized the jury to find that each was in fact negligent and that their respective acts were contributing causes to the injury.
3. Both thеse defendants also contend that certain of the court’s remarks to the jury were coercive. Not only were the remarks within the court’s province to urge the jury to make an effort to agree on a verdict, but neither of these defendants objected at the time or asked for a mistrial. See
Yancy v. State,
4. Special grounds 1 and 2 of the contractor’s motion for new trial were not raised at the time of trial for the court’s consideration and ruling. They will therefore not be considered for the first time hеre.
Greene v. McIntyre,
5. The employers contend the court erred in charging Code Ann. § 54-123 (b) (Employer’s duty as to safety), because the evidence did not show they had the minimum number of employees to come under the statute. However, in making objectiоn to the charge, their counsel merely stated that they did not come within the purview of the statute. When the court asked, "and you’re saying that this is not applicable to an employer and employee?” *72 counsel simply answered, "I say it doesn’t apply to the defendants Smith in this case.” We believe this objection was not as reаsonably definite as the circumstances permitted. We presume counsel knew at the time he objected why the statute did not apply, and if he had deigned to inform thе court, it would undoubtedly have withdrawn the charge. Nevertheless, there was no harm done since the standard of care set out in the statute is very nearly the same as that prescribed by common law for master and servant.
It should be emphasized that the Appellate Practice Act of 1965 specifically provides that the "objection need not be made with the particularity of assignments of error (abolished by this law) and need only be as reasonably definite as the circumstances will permit.”
Code Ann.
§ 70-207 (а). If heretofore we have failed to follow the mandate of the General Assembly, our rulings must yield to the statute.
Smith v. Nelson,
6. The employers contend the court gave two other conflicting chargеs on standard of care — one of which requires the exercise of "ordinary care in keeping the premises and approaches safe” and the othеr requiring "ordinary care in maintaining the premises and keeping them reasonably safe.” They contend that the former charge pertains to owners or occuрiers vis a vis their invitees so it is inapplicable to a master-servant relationship; that it *73 imposes a higher burden than an employer has under the law; and that the jury would havе been confused by the conflicting charges into believing the employers were insurers of the safety of their employees.
However, the objection made bеlow was simply that since plaintiff was an employee, not an invitee, they "would object to the court giving that charge without at the time also pointing out to the court that it would not apply to the defendants Smith.” Giving the slightly ambiguous objection its most favorable construction, it would appear the employers wanted the court to bring back the jury and explain that the standard of care contained in this charge should not be applied to them. Assuming without deciding that the court erred in failing to do so, we do not believe it was harmful.' The standard of care of an owner to an invitee is the same as that of a master to a servant.
Elrod v. Ogles,
That part of the enumeration which contends this charge conflicted with another, confusing the jury to the point it would have believed the employers were insurers, is without merit. This was not the basis of the objectiоn made below. See Division 5 above;
Bryant v. Chasteen,
7. The employers also enumerate as error the charge: ". . . if an injured party has sustained loss of earning capacity, that is one element of pain and suffering that may be considered.” They contend this injects a claim for loss of earnings when no such claim was made. The contention is without merit. The court is clearly talking about lost
capacity
as an
element
of pain and suffering. This was a proper charge under the law and evidence.
Central of Ga. R. Co. v. Morgan,
Judgment reversed in case No. 46419; affirmed in Nos. 46417 and 46418.