10 S.E.2d 219 | Ga. Ct. App. | 1940
Lead Opinion
In leasing premises a landlord impliedly warrants that the premises are in good repair at the time they are leased; and if a person rightfully on the premises is injured by a latent defect in the premises which was in existence at the time of the lease, the landlord is liable if the injured person could not have avoided the injury by the exercise of ordinary care. The court erred in sustaining the special demurrers to the petition as amended, and in dismissing the action. The court did not err in refusing to sustain the general demurrer and certain special demurrers.
This case involves an order dismissing a petition on special demurrer automatically unless amended within a certain time. Much confusion and uncertainty is caused by this kind of order, both as respects this court and litigants.
1. Two parts of the amendment last filed were material and necessary to a good petition, especially since they filled out a deficiency pointed out by special demurrers which were sustained. *900 They were the one attaching an itemized statement of the surgical bill, and the one showing why the plaintiff was on the premises when he was injured. The petition was not subject to general demurrer, and these two amendments perfected it so far as stating a complete cause of action was concerned. The court erred in dismissing the action.
2. The petition was not duplicitous. While it was alleged that the defendant failed to repair after notice, the suit is for renting defective premises, and not for the failure to repair a defect arising after the tenancy. Renting latently defective premises and failure to repair premises latently defective at the time of the renting is the same cause of action.
3. It has been held that a landlord is liable for a failure to repair defects arising after premises are leased, when he has actual notice thereof by inspection or by being notified, or when he by the exercise of ordinary care should have discovered the particular defects when repairing others of which he had notice. The reason for these rulings is that the tenant has exclusive possession of the premises which puts the duty on him to inspect and relieves the landlord of this duty. (The rule is of course different where the landlord retains partial or full control.) And when the landlord is on the premises repairing defects, he is charged with the duty of discovering others which he could discover by the exercise of ordinary care in repairing those of which he has notice. All these rules are subject to the qualification that no person injured by a failure to repair can recover if the injury could have been avoided by the exercise of ordinary care by the injured party. However, these are not the only responsibilities and liabilities of a landlord. A landlord impliedly warrants that the rented premises are in good repairat the time they are rented; and if they are not, by reason of a latent defect (McGee v. Hardacre,
Judgment reversed on the main bill of exceptions, andaffirmed on the cross-bill. Stephens, P. J., concurs.
Dissenting Opinion
It was alleged in paragraph 5 of the petition, that at the time the premises in question were rented the same were in bad repair, and the flooring was rotten and decayed; that the premises were unsafe for the use and purpose for which they were rented; and that the defendant knew, or ought to have known, of this dangerous and unsafe condition of the premises at the time they were rented. General and special demurrers to the petition were filed, one of which was to the effect that the petition did not show that the defendant knew or had notice of the defective condition of the premises. The plaintiff amended his petition, on May 13, 1938, by alleging that the premises had been in the condition as described in paragraph 5 of the original petition for a month or more next before the time at which the plaintiff was injured; and that the defendant knew, or ought to have known, of the unsafe condition of said premises. After the petition was thus amended, the defendant, on May 20, 1938, renewed its general and special demurrers, and again demurred generally and specially on numerous grounds to the petition as amended, one of the grounds being that neither in the amendment just referred to nor elsewhere in the petition as amended were there sufficient facts alleged to charge the defendant with notice or show liability. On July 6, 1938, the judge passed an order sustaining the defendant's demurrers to the petition as amended, on the ground, among others, that neither the original petition nor the petition as amended contained sufficient allegations of fact to charge the defendant with knowledge or notice of the alleged defective condition of the premises. The order recited that the "said petition will stand dismissed unless amended within thirty days." This order was not excepted to, but was acquiesced in by the plaintiff, who, on August 4, 1938, filed an amendment in which it was alleged in substance, in paragraph six (this being the only portion of the amendment that deals with the question of knowledge or notice on the part of the defendant as to the defective condition of the premises), that at the time the premises were rented they were in a dangerous and unsafe condition, which condition had existed for more than a *902 month next before the date when the plaintiff was injured, and that the defendant was negligent in allowing or permitting the premises to be used, when it knew, or ought to have known, that they were in such unsafe and dangerous condition; that the defendant company, by its officers and agents visited the premises for more than a month next before the date when the plaintiff was injured, and had knowledge or, because of the facts as charged, should have known that the tenant was using the premises for the purposes designated.
This last amendment was only a restatement of allegations contained in the original petition and the previous amendment, with reference to knowledge or notice on the part of the defendant as to the defective condition of the premises in question, and did not cure or meet the defects of the amended petition as respects knowledge or notice of the defective condition of the premises on the part of the defendant. The court having sustained the demurrers and ordered that the petition as amended stand dismissed unless such defects were cured by amendment within thirty days, and the plaintiff having failed so to amend, the judge properly held that the amendment did not meet the requirements of the previous order dated July 6, 1938, on the defendant's demurrers, and did not err in sustaining the demurrer and in dismissing the action.