51 Ga. App. 805 | Ga. Ct. App. | 1935
Lead Opinion
Novella Mathis brought suit against E.' K. Gazan and sought damages on account of alleged injuries caused by the falling of plastering in the house rented by the • plaintiff from the defendant. The plaintiff alleged that the defendant had been notified, by and through named renting agents, “that said plastering was in need of repair, and defendant knew of the defective condition of said plastering, and that same was in need of repair. After knowledge of the defective condition of said plastering, defendant carelessly and negligently failed to repair said plastering . . . That the defective condition of plastering was not apparently dangerous to petitioner at or before the time the said plastering fell upon her head, as alleged, and that petitioner’s attention was attracted to the defective condition of said plastering by cracks in the ceiling, of which condition she notified defendant’s agents, as hereinbefore alleged.” By amendment the plaintiff alleged that she notified the defendant through said agents, “regularly for a period of one and one half years prior to the date of this injury, that the said plastering was in need of repair,” and that said time was sufficient for the defendant to repair “the said defective plastering” before said injuries. “Petitioner shows that said defendant was negligent in that the said plaster was allowed to be on said overhead ceiling without being properly supported, in that there was nothing undérneath said
We think that as against a general demurrer the petition sets forth a cause of action. “The common law is not of force in Georgia. Under our Code, the landlord, in the absence of a stipulation to the contrary, is bound to keep the premises in repair Civil Code § 3123. He is, however, entitled to notice from the tenant that the premises are out of repair, and if after such notice has been given the tenant suffers damages on account of the failure of the landlord to make the necessary repairs, the landlord is liable for the damage thus sustained, provided the conduct of the tenant was not such as to preclude him from recovery.” Stack v. Harris, 111 Ga. 149 (36 S. E. 615). “When the landlord is notified that the premises are out of repair it becomes his duty to inspect and investigate in order that he may make such repairs as the safety of the tenant requires. It follows, therefore, that when after such notice 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 disclosed. To this extent he might be charged with liability for injury arising from a defect which was hidden so far as the tenant was concerned.” Stack v. Harris, supra.
It seems to us that this case, under the pleadings, should have gone to the jury, for them to determine whether the circumstances were such as to require that the landlord should have made an investigation (not every frivolous and inconsequential report by the tenant to the landlord requires an investigation). And if the jury should find that the landlord should have made an investigation, then it should be for them to determine whether, if a proper investigation had been made (that is one in which the landlord exercised ordinary diligence), it would have necessarily resulted in
Judgment reversed.
Rehearing
ON MOTION TOR. REHEARING.
The defendant moves for a rehearing on the ground that the court has apparently overlooked the fact that the plaintiff was injured by using the exact part of the premises which she had notified the landlord was defective, and was injured because of the exact defective condition which she had called to the landlord’s attention; and cites Jackson v. Davis, 39 Ga. App. 621 (147 S. E. 913), the cases therein cited, and Yancey v. Peters, 49 Ga. App. 128 (174 S. E. 182). In the Jaclcson case it is said: “When rented premises become defective and unsafe, it is the duty of the tenant to refrain from using that part of the premises the use of which would be attended with danger. [Italics ours.] It is his duty to exercise ordinary care for his own safety; and where he is injured as a result of his failure to exercise such care, he can not recover damages, from his landlord, even though the latter may have been negligent in failing to make repairs. Construing the allegations of the petition most strongly against the plaintiff, as must be done on demurrer, it affirmatively-appears that the plaintiff voluntarily used a portion of the premises which he lenew was dangerous [italics ours]; and this being true, he was not entitled to recover.” In that ease the plaintiff voluntarily used a portion of the premises which he knew was dangerous. In Miller v. Jones, supra, this court stated that “Even after notice of defects given to the landlord the tenant is entitled to continue in the use of the premises without losing his right of redress for any damage sustained, provided the conduct of the tenant in so doing is not such as to preclude him from recovering, and he will
Beheañng ¿temed.
