94 Ga. App. 750 | Ga. Ct. App. | 1956
Lead Opinion
The judgment of this court was reversed by the Supreme Court in Overstreet v. Rhodes, 212 Ga. 521 (93 S. E. 2d 715). In Overstreet v. Rhodes, 93 Ga. App. 422 (91 S. E. 2d 863), this court ruled that where the tenant in this case pleaded that the untenantability of the premises alone constituted a constructive eviction and there was no1 demurrer to such plea, the question of whether the evidence authorized the finding that in addition to the untenantability of the premises the mak
W. C. Rhodes testified in his own behalf as defendant in part as follows: “At the time this surface water had undermined the bakery floor back there in March, the roof was leaking, too. In fact, the roof has leaked continuously for ever since, oh—I mean they patched it. They would come out and do a little bit of patching every time we would call them. I think this was in June, 1952. Mr. Sachs was walking down the street from over next door down there, and I called him in. He came in the shop and I had one of these apple bins sitting on top of one of my light fixtures where water was dropping and I had a mixing bowl that big sitting on top of the flour in back where tar had run down there, and water. In answer to this complaint when Mr. Sachs looked at this condition in 1952, he sent a man out to patch it. No, I mean they came out there—I think two fellows worked on the roof. They took some gravel—It did not altogether stop the leaks. In fact, while they put it up there, some tar poured through the roof when they were working on the roof. The tar leaked through the roof where there was water leaking. There’s no ceiling in the back part of the building. The only
“In June, 1953, the roof sheathing was rotted out and you could see in three places and if you had got up there—in fact, we got up on top of the ladies’ toilet and you could take something and stick up in the wood in that sheathing. I don’t know how thick it is, an inch or what, but all the places that had leaked, you could stick something up in the wood part and you needed a whole new sheathing in there before you put a roof on it. Yes, the condition of that roof sheathing was pointed out to Mr. Sachs in June of 1953. He sent a man out to put a roof on it in August, 1953. The man came out to put the whole new roof on and we called him in the back and showed him and said, 'We don’t believe you can put a roof on top of this sheathing, it’s liable to fall in on us.’ He said, ‘Well, I’ll check it,’ and he did check it. When he got up walking on it, the gravel and all would drop down in the building. All they did was scrape off the gravel, put new tar paper over it and new tar and gravel back over it. Not a thing was done to the wood sheathing that was underneath the gravel and the tar paper. Not one board was taken out and put a new one in. As to whether or not we complained of that condition to Mr. Sachs and whether or not he had had opportunity, and had come out there and looked at it, Mr. Sachs had seen it; he had been out there and looked at it. We gave notice to Mr. Sachs before he even began to let this fellow put this gravel on it. We did and even had the man, before he would go to work on it, we had him call Mr. Sachs about the sheathing before we let him do* any work on it and he didn’t replace one board in the whole roof. . . After the roof had been completely finished in the last of August or first part of September,
G. E. Rhodes, Jr., testified in his own behalf as defendant in part as follows: “The fixture fell from the building after we moved out; but as far as the roof, the roof is—to the eye is rotten in spots. The boards are rotten in spots; you can see it. We could see it before we moved out. They turned black. The roof was painted white and those spots turned black. Yes, to the eye those boards were rotten. Some of them dropped down that far. . . . I actually examined the roof physically. As to how did I examine it, at one time we were having it painted and we were up at the rafters right at the roof. When I got up there I felt it. I have been on top of the roof. In August, 1953, when the tar and gravel and tar paper were put on the roof there were men walking around on the roof at that time. They had to get up there to put the tar and gravel on it. When these men were up there-on the roof putting this tar and gravel on, they did not move and replace any of the wooden roof sheathing. I was there when that condition was called to the attention of Mr. Sachs that they weren’t doing it. I was in the building when they were up there on the roof. While they were putting this tar and gravel on, well, they scraped—you would find some of the scrapings would fall down through the cracks in the sheathing and when they put the new tar on there, some of the tar even dripped down between the cracks in the sheathing. The man who was putting on this roof in 1953, the first part of September, was sent there by Mr. Sachs.”
G. E. Rhodes, Sr., testified as a witness for the defendants in part as follows: “As to whether or not I had an occasion to make an examination of the wood roof sheathing, you didn’t have to make an examination; it was right in front of your eyes. The best part of the back of the roof, the sheathing, all the wood proper, that was honeycombed, it was rotten and you could take
Earnest H. Stewart testified as a witness for the defendant in part as follows: “My name is Earnest H. Stewart. My occupation is a building inspector, City of Atlanta. I have been so engaged in that profession approximately 8 years. My duties as a building inspector for the City of Atlanta entail the enforcement of the ordinances, laws and regulations pertaining to buildings and their conditions and their safety and pertinent conditions thereto. . . In October, 1953, I had an occasion to make an inspection of a building out on Piedmont Avenue used by the Rhodes Bakery; approximately, I would say, October or November, 1953—sometime. . . As to what I found from my inspection, what my determination was of that building, what the physical condition of it was, the roof sheathing was in some— I would say several—places deteriorated considerably more or less in small places, individual timbers, I would say. And there was one occasion where the light fixture had pulled the timber out of the roof itself and fell to the floor. . . From my exami
Edward W. McClure testified as a witness for the defendant in part as follows: “My name is Edward W. McClure. My occupation is building; building contractor. I have been associated with the building field since 1935 except for two periods of active duty in the Marine Corps. I have done some repair work, mostly in new buildings, in residential construction. I am familiar with a building located at 1580 Piedmont Avenue, the Rhodes Bakery building. I have been in that building over a period of time. I have had an occasion to make an examination of that building recently. The last time I was on the premises of that building and inside that building was this morning between 8:30 and 9. I had an opportunity to observe and examine the inside of that building out there. . . I had an opportunity to examine and observe the roof sheathing out there on the inside of that building this morning. The roof sheathing is—as near as I could determine, it’s by material laid across on beams. The material was painted and the majority of the paint has been—is scaling off due to moisture or poor paint. Some of the boards are sagging between the roof girders; a portion of the boards, or some of the boards, show evidence of mold, which is an indication of moisture being there or having been there. Against the back wall, the concrete or the brick wall, I found this morning there that a number of boards were rotten and I had the opportunity to get up and examine the boards more closely and was able to push a pencil through the boards and pulverized decayed wood came out. As to whether I am able to arrive at any estimate of the length of time this decay had existed from my observation of the boards there, without moisture being present, it would take years for wood to decay in that fashion. It would take several years for wood to decay in that fashion. There was some indication that a new roof had been put on, that tar had dripped down between the cracks in the roofing boards. And I noticed one board there that was a different color, and indication that perhaps that board had been replaced in the past. That board was located, roughly, just in front going toward the front of the store from the skylight and to the north side. There was nothing
Considering the nature of the business of the tenant and the defects in the premises which the jury would have been authorized to find existed, we are of the opinion that the jury was authorized to find that the repairing of the premises would have unreasonably and materially interfered with the operation of the bakery and the general occupancy and use of the rented premises. In this view the court did not err in denying the motion for new trial and the motion for a judgment notwithstanding the verdict.
Judgments affirmed.
Dissenting Opinion
dissenting. In my opinion the evidence is inconclusive on the question as to what effect the repairing of the
