Mattox v. Lambright, 31 Ga. App. 441

31 Ga. App. 441 | Ga. Ct. App. | 1923

Lead Opinion

Bell, J.

(After stating the foregoing facts.)

We think that the court was in error in dismissing the petition. Under the averments made, the plaintiff had a right to be upon the premises at the place where the injury occurred. She alleges not only that she was a member of the family of a tenant, but went to the apartment of another tenant as an invitee and guest, upon matters of interest and concern to them both. “A landlord is liable to one lawfully present on the rented premises, by invitation of the tenant, for injuries arising from defective construction, or from failure to keep the premises in repair, where the defect is known to the landlord or in the exercise of reasonable diligence could have been known, and the injured person was himself in the exercise of due care.” Ross v. Jackson, 123 Ga. 657 (51 S. E. 578). See Civil Code (1910), §§ 3694, 3699; Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 462 (118 S. E. 694). Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe. Civil Code (1910), §4420.

It is alleged that the defendant retained the possession and control of the hall where the plaintiff was injured. Where the landlord retains even a qualified possession and general supervision of his building he may be held liable to his tenants, their guests or invitees, for injuries arising from a failure to maintain the building in proper repair or a reasonably safe condition, either if he knew of the defects or if in the exercise of ordinary care he should have known of them. Monahan v. National Realty Co., 4 Ga. App. 680 (1) (62 S. E. 127).

Ordinarily, before a landlord can be held liable for damages for a failure to keep the premises in repair or in a safe condition, notice of the defect must be brought home to him; but it is well settled that where he retains a qualified possession of and general supervision over the rented premises either by himself or through an agent in charge, no actual notice of the defective condition is required in order to fix liability for an injury to a tenant or the tenant’s guest or invitee, provided the landlord should have known thereof by ordinary care. Davis v. Hall, 21 Ga. App. 265 (1), 268 (94 S. E. 274). The averments bring the plaintiff within the protection of the requirement by the law of ordinary care on the part of the defendant.

The question next presented is, was the defendant negligent? Perhaps it is true that waxing or otherwise treating the floors in the halls of a building of the nature and uses here described may be proper, and would not amount to negligence when done in the usual and ordinary manner, but the plaintiff alleges that the proper way to use “liquid wax” is to apply it and then “wipe it up or dry it off,” and further that “unreasonably large quantities” were applied by the defendant “without wiping it off.” We cannot say as a matter of law that the petition does not allege a negligent condition of the floor. In the nature of the averments the question is one for a jury.

Does the petition disclose that the plaintiff could have avoided the consequences of the defendant’s negligence by the exercise of ordinary care? If so, the plaintiff cannot recover notwithstanding the defendant’s alleged negligence. Civil Code (1910), § 4426. The petition avers that the hall was not lighted so that the condition of the floor could be easily and readily observed; that it was “so dark that the condition of the floor could not be observed so as to tell whether or not any solution such as liquid wax was upon said floor,” which was “only rendered slick and treacherous and dangerous and unfit for walking on by the act of the defendant in placing said liquid wax upon same while the plaintiff was in said Apartment No. 24, and the plaintiff had the right to assume that said passageway was in a safe and proper condition and in the same condition as when the plaintiff entered said apartment,” only forty minutes before; that she did not know of the dangerous condition and was not warned. The petitioner further alleges that “immediately upon entering the hallway,” as she departed from her visit to Mrs. Asbill, her feet “shot out from under her and she fell in said hallway just outside .the door of the Asbill apartment.” It cannot be ruled that the plaintiff’s stepping out into the darkened hallway was such negligence, if any, as would bar a recovery, since it does not appear that the act would have been attended with any danger, except for the change of conditions occurring without her knowledge within the brief time she had spent in the apartment of Mrs. Asbill.

While it is true that where facts are considered on demurrer and every rational interpretation thereof requires the conclusion, as a matter of law, that there was a want of ordinary car.e on the part of the plaintiff, the demurrer should be sustained (Moore v. Seaboard Air-Line Railway C o., 30 Ga. App. 466 (6), 118 S. E. 471); yet questions as to diligence and negligence are peculiarly for the jury, and the court will decline to solve them on demurrer except in plain and indisputable cases. Columbus Railroad Co. v. Moore, 29 Ga. App. 79 (1) (113 S. E. 820). We do not think that the facts set forth in the complaint present such a case. This conclusion is not in conflict with'any of the decisions of this court in a number of recent cases to be presently mentioned. We have caused practically the entire complaint to be set forth in detail, in order that the distinction between this case and those may become readily apparent. The cases of Flournoy v. American Hat Mfg. Co., 21 Ga. App. 599 (94 S. E. 835); Day v. Graybill, 24 Ga. App. 524 (101 S. E. 759); Ogain v. Imperial Cafe, 25 Ga. App. 415, and Biederman v. Montezuma Mfg. Co., 29 Ga. App. 589, involved the rights and liabilities incident to the relation of master and servant, and each of them apparently turned upon the theory that the plaintiff employee either knew or had equal opportunities with his master of knowing of the defects complained of. While the plaintiffs in the Ogain and Biederman cases each attempted to negative this proposition, they did so merely by conclusions which the pleaded facts respectively not only failed to support, but disputed. A nonsuit was affirmed in Flanders v. Atlanta Terminal Co., 21 Ga. App. 812 (95 S. E. 307), because the plaintiff did not prove the allegation .of her complaint that the steps were worn and slick. The sufficiency of the petition was not decided. It might or might not have been subject to demurrer. In Jones v. Asa G. Candler Inc., 22 Ga. App. 717 (97 S. E. 112), a nonsuit was granted because it appeared from the evidence that the plaintiff was merely a licensee, and not an invitee as alleged. Furthermore, the object complained of in that case was patent and obvious, and the court took occasion to observe: “In fact the stumbling over the small pile of lumber against the wall seems to have been due to her own carelessness in hurriedly and without looking coming out of the door of Dr. Crenshaw’s office. The lumber was evidently there when she went into the office, and no reason appears why she should not have seen it and avoided it in coming out.” 'A careful reading of Lebby v. Atlanta Realty Corp., 25 Ga. App. 369 (103 S. E. 433), will show that the court concluded (Judge Stephens dissenting) that the defects there in question were also obvious, the petition, according to the opinion of the majority, not alleging “any facts showing that the danger, if any, . . could not by the exercise of ordinary care have been seen and discovered by the plaintiff.” The court said further that the petition “fails to allege any culpable negligence on the part of the defendant;” but there was no allegation, as here, that the condition complained of was unnecessary or unusual, or that the water was not placed upon the floor in the ordinary and proper discharge by the landlord of his duty in the care and keeping of the building. In Hendricks v. Jones, 28 Ga. App. 335 (111 S. E. 81), the only complaint made was directed at an insufficiently lighted stairway which the plaintiff deliberately attempted to descend, with knowledge, of course, of the darkness. No defect in the floor or steps was alleged. The facts respectively of Castleberry v. Fox, 29 Ga. App. 35, and of Avary v. Anderson, 31 Ga. App. 402 (120 S. E. 683), are also distinguishable from those of the case at bar. Compare with the former Goddard v. Boston & Maine Railroad, 179 Mass. 52; Lyons v. Boston Elevated Ry. Co., 204 Mass. 227.

The petition set forth a cause of action, and the court erred in sustaining the demurrer. See Jones v. Tift, 63 Ga. 488; Archer v. Blalock, 97 Ga. 719 (25 S. E. 391); Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060).

Judgment reversed.

Stephens, J., concurs. Jenkins, P. J., concurs specially.

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Concurrence Opinion

.Jenkins, P. J.,

concurring specially. The plaintiff invitee, in walking upon the waxed floors maintained by the defendant, assumed all the risk incident and usual to the ordinary condition of a floor of that kind and character, and likewise assumed all the hazard that might be incident to its usual and proper upkeep and maintenance. I concur in the holding of my colleagues only because elements of alleged negligence appear in this case which differentiate it from the recent eases of this court,—to wit, that the liquid wax was not only applied in unreasonably large quantities, but that the unusual and unnecessary danger thus arising was further augmented by reason of the alleged fact that such unusual quantity of liquid wax had been applied without being subsequently wiped off as was usual, customary, and proper, thus leaving the floor in an unusual and unnecessarily slippery and dangerous condition.