47 Ga. App. 144 | Ga. Ct. App. | 1933
Lead Opinion
Luther Wallace, by his next friend, brought his action against Samuel Adams, alleging: he was a minor 16 years of age, living with his mother in an apartment rented from the defendant by his mother. He further alleged that his mother, at the time of the renting of said apartment, which was some weeks prior to the accident, gave notice to the agents of the defendant, from whom she rented the apartment, that the corner-post supporting the railing on the back porch had rotted and was insecurely fastened; that said post, to which said railings were fastened, was fastened at the top to the corner of the roof, and at the bottom was supported by the porch floor; that the same was apparently sound and appeared to be safe, but, unknown to the plaintiff, the bottom of said post had rotted where it was nailed or connected with the
Section 3699 of the Civil Code of 1910 reads as follows: “The landlord must keep the premises in repair and is liable for all substantial improvements placed upon them by his consent.” This section changed the rule which had been applied under the common law, for under the common law the burden of repairing was upon the tenant. Stack v. Harris, 111 Ga. 150 (36 S. E. 615); Guthman v. Castleberry, 48 Ga. 172; Ross v. Jackson, 123 Ga. 657 (51 S. E. 578); Ocean Steamship Co. v. Hamilton, 112 Ga. 901 (38 S. E. 204); Civil Code, § 3694. A tenant, before he may recover in an action against the landlord for an injury resulting from defects in the premises, must allege and prove that he has given the landlord notice of the defective condition of the premises. If, after such notice, the landlord fails in a reasonable time to repair the premises and damage results therefrom, the landlord is liable, provided also the tenant or his invitees have not been guilty of such negligence as would bar a recovery by them. Alexander v. Owen, 18 Ga. App. 327 (89 S. E. 437); Stack v. Harris, supra; Veal v. Hanlon, 123 Ga. 642 (51 S. E. 579); Miller v. Jones, 31 Ga. App. 321 (120 S. E. 672). “Members of a tenant’s family, his guests, servants, employees, and others present, at his express or implied invitation, stand in his shoes, and are controlled by the rules governing the tenant as to the right of recovery for injuries arising from failure to keep the premises in repair.” Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 462 (118 S. E. 694); Williams v. Jones, 26 Ga. App. 558 (106 S. E. 616); Mitchell v. Clark, 39 Ga. App. 715 (148 S. E. 420). In the Mitchell case, supra, it was said: “A member of a tenant’s family, occupying the premises in his right, can claim no greater duty or obligation on the part of
It is often difficult for a court to determine whether or not, under the allegations of the petition, the plaintiff himself has such a sufficient knowledge of the alleged defective condition as would preclude recovery, or whether or not the danger is so obvious that it may be discovered by the use of ordinary care. Each ease is necessarily to be determined on the facts as they are alleged in the petition. Under the allegations of the present petition, if the mother herself had been the plaintiff, she would not have been entitled to recover, for the allegations show that she had knowledge of the insecurity of the post, and for her to have leaned against the same would have been so negligent as to bar a recovery. Under the allegations of the petition as amended, the plaintiff in this case did not have the knowledge that his mother had, — did not know that the post to which the railings were attached was insecurely fastened at the bottom, and its condition such that the fact that
Judgment reversed.
Dissenting Opinion
dissenting. The plaintiff, while legally an “infant,” was sixteen years old and had intelligence enough to hold a job as a delivery boy. His petition, properly construed (most strongly against him), clearly showed that the defect complained of was a patent one, and that, by the exercise of ordinary care, he could have avoided being injured. His allegation that the bottom of the post was rotten and entirely disconnected from the floor (where it should have been securely nailed) discloses that it was a patent defect; and his further allegation that such defect was not apparent from observation or inspection is obviously a mere conclusion of his that is not supported by the pleaded facts. The petition shows that the plaintiff, at about 12 o’clock in the daytime, leaned against the rotten post, which was entirely. disconnected from the floor; and it will be presumed (the petition not otherwise showing) that his eyesight was normal, and that his intelligence was equal to that of the average boy of sixteen years of age. I think that the petition was properly dismissed on demurrer.