Opinion
33569.
DECIDED JUNE 22, 1951.
Damages; from Fulton Superior Court — Judge Andrews. February 23, 1951.
Sams, Wotton Sams, for plaintiff in error.
C. Baxter Jones Jr., contra.
1. The jury was authorized to find that the proximate cause of plaintiff's injuries was the failure of the defendant landlord to repair a latent defect in the premises which, in the exercise of ordinary care, she would have discovered if she had repaired a patent defect of which she had actual notice.
2, 3, 4, 5, 6. The special grounds of the amended motion for a new trial are without merit.
DECIDED JUNE 22, 1951.
Eva Wingo sued Mrs. M. Z. Kimpson for injuries allegedly sustained due to defective premises rented by plaintiff from defendant. The petition alleged substantially: that on or about April 20, 1950, and for many months before then, plaintiff lived in one side and defendant lived in the other side of a duplex house located at 868 Mayson and Turner Avenue in Atlanta; that during said period plaintiff as tenant rented her side of said house from defendant as landlord; that there was a back porch on plaintiff's side of the house, which porch was about three feet wide, about five feet long, and about three feet off the ground; that said porch was bounded as follows: at one end a door led into the house and at the other end steps led into the backyard; on one side was an outside wall of defendant's side of the house, and on the other side was the outside kitchen wall of plaintiff's side of the house; that the flooring of said porch was made of short wooden planks running from side to side; that said planks ended at each side of the porch, and other planks made up the inside floors of the house; that the porch flooring rested on a beam running lengthwise under said porch, which beam was about two feet off the ground; that on or about April 20, 1950, the beam under the flooring of said porch collapsed under plaintiff's weight because it was defective in that it was rotten through and through; that during many months prior to the collapse of said beam, the flooring on said porch and the adjoining flooring in the kitchen on plaintiff's side of the house had sagged one or two inches from the level of the rest of the flooring and that this caused the floor of said porch and kitchen to be uneven, and also opened a crack in the floor so that cold air entered during the winter time; that during many months prior to the collapse of said beam plaintiff had frequently complained to the defendant about the sagging of said floor, pointing out the danger to defendant in that she might slip and fall on said uneven floor, and also pointing out the inconvenience to plaintiff from the cold air coming in through said crack; that plaintiff so complained more than once each month during a period of several months prior to the collapse of said beam; that each time plaintiff complained defendant promised to repair the sagging of said floor but that defendant failed to have it repaired and did nothing about it; that by reason of the sagging and the crack in the flooring, plaintiff knew that there was a danger of slipping or tripping on the uneven surface, and she always walked carefully so as not to slip or trip; that the rotten condition of the beam underneath said flooring was not patent or apparent to plaintiff because the beam was wholly concealed from her view and that therefore plaintiff did not know and by the exercise of ordinary care could not have known that said beam was so defective that it would collapse and cause the flooring to fall under her weight; that, however, the rotten condition of said beam would have been immediately apparent in the process of repairing said flooring as defendant had repeatedly promised to do and as defendant by the exercise of ordinary care should have done; that, therefore, defendant by the exercise of ordinary care should have known that said beam was so defective that it would collapse under plaintiff's weight; that said beam collapsed while plaintiff was walking on the porch flooring above it and said collapse caused the porch flooring to fall, which caused plaintiff to fall so that the whole weight of her body was thrown down upon her right leg and ankle very violently; that as a result of such fall plaintiff was injured in certain particulars; that defendant's failure to repair said beam was the proximate cause of plaintiff's injuries. The defendant answered denying the material allegations of the petition and further answered that as soon as plaintiff complained the first time about the condition of the porch defendant asked plaintiff to arrange with the brother of plaintiff, an experienced carpenter, to have him repair said porch, but that plaintiff refused to do this; that several weeks before the occurrence of said alleged accident she had arranged with another carpenter to repair said porch floor, but that said carpenter had delayed making any needed repairs; that the beam under said flooring was not rotten, but that the sagging of said floor was caused by plaintiff jumping, without the exercise of ordinary care, upon said porch floor. The jury returned a verdict for the plaintiff. Defendant's amended motion for a new trial was overruled and she excepted.
1. Special ground 7 of the amended motion for a new trial will be considered with the general grounds. The plaintiff in error contends that plaintiff's cause of action must fail because any liability of the defendant depends on plaintiff's proving the existence of the latent defect alleged, that is, "the beam under the flooring of said porch collapsed under plaintiff's weight because it was defective in that it was rotten through and through", and that plaintiff failed to prove that such beam was rotten. Lum Broome testified in part: "This plank was broken all the way through. After it was broken, you could see the sill, and it was rotten." Sidney Abrams testified in part: "I looked at the floor of that porch some time after this accident, to find out what was underneath it. The sill under it was rotten." John Wingo testified in part: "The two by four was rotten where it cracked and pulled off. The two by four ran this way (indicating); here is the door step, and the two by four was along here; and where it was rotten at, it broke loose." The jury was authorized to reconcile the conflicting evidence as to the condition of such beam and to find that the beam was rotten as alleged. The theory of recovery relied upon by plaintiff is not that defendant had notice of the latent defect of a rotten beam or sill, but that defendant had notice of a patent defect, the sagging of the porch, and that by using ordinary care within a reasonable time after notice of the patent defect in repairing such defect the latent defect could have been discovered. This theory is a correct principle of law and will afford a basis for recovery if proved. Stack v. Harris, 111 Ga. 149 ( 36 S.E. 615); Grant v. Smart, 82 Ga. App. 80 ( 60 S.E.2d 379). The plaintiff testified in part as to the patent defect and notice thereof to the defendant: "I had complained frequently to Mazena Kimpson about the flooring in the kitchen, and on the back porch of that house. The floor in the kitchen and on the back porch had sagged just about enough for me to run my hand underneath the moulding — probably an inch and a half. . . I told Mazena Kimpson, my landlord, that this needed fixing, and she said, I can't do it now. . . I had told her three times about that floor and porch needing repair. . . I had been telling her about it for a year." The plaintiff testified: "I called her attention to the defective condition of the porch in March, and the alleged accident happened April 20th. . . When I first noticed the condition of the porch floor, it had pulled out just about an inch." From the evidence introduced the jury was authorized to find that a patent defect did exist, to wit, the sagging of the porch; that the defendant had notice of such defect; that if defendant had repaired the patent defect, she, in the exercise of ordinary care, would have discovered the latent defect, the rotten beam or sill; and that a reasonable time for repair after notice had elapsed. The plaintiff in error contends that admitting the defective condition of the porch, plaintiff's own negligence in using the porch while she knew it was in a defective condition was the proximate cause of her injuries. "Even after the tenant may have notice of defects in the premises, she may yet continue to use the premises, including the part of the premises which are defective, if she does not know they are dangerous or has no reasonable ground to suspect such to be the fact. Her use of them could not be legally considered negligent." Mathis v. Gazan, 51 Ga. App. 805 ( 181 S.E. 503). The plaintiff testified: "As to which side of the porch I walked on — in the middle, because the sag did not seem to have anything to do with my walking across the porch; I did not know the beam under there was rotten." The questions as to whether or not the porch was apparently safe to use and whether or not plaintiff was negligent in using the porch knowing of the sagging condition were questions for the jury. Alexander v. Owen, 18 Ga. App. 326 ( 89 S.E. 437); Dessau v. Achord, 50 Ga. App. 426 ( 178 S.E. 396), and there was sufficient evidence to authorize the jury to find for the plaintiff.
2. Ground 4 of the amended motion assigns error on the court's refusal to charge upon timely request the following: "I charge you that if Eva Wingo knew that the porch or house was defective or not in repair and you find that she used the defective premises and that this act on her part was the proximate cause of injury, if you find that she received any, then and in this event I charge you that she would not be entitled to recover." The court did not err in refusing to so charge as such was not a correct principle of law. This charge would have taken away from the jury's consideration the apparent safety in using the defective premises with knowledge of the patent defect but without knowledge of the latent defect alleged to have caused the injuries.
3. Ground 5 of the amended motion complains of the court's refusal upon request to charge: "Gentlemen, I charge you that Eva Wingo, a tenant, has no right of action against a landlord for injuries sustained while attempting to pass from the back yard over a porch which was defective if she, Eva Wingo, had previous knowledge and had complained that the back porch was out of repair. I further charge you that this would be true notwithstanding an emergency to leave the back yard at the particular time and place to answer a telephone or for any other purpose if such an emergency could not have been foreseen by the landlord." The court did not err in refusing to charge the above requested charge or the charge set out in ground 6 of the amended motion because such charges were not legally correct in that they would have allowed the jury to find that plaintiff could not recover because she used the porch knowing of the patent defect even though the porch seemed safe to use even with the existence of the patent defect. Se Mathis v. Gazan, supra. Plaintiff predicates her right to recover on injuries received due to a latent defect in the supporting beams of the porch and not upon the patent defect of the sagging. Also, to have charged the above quoted charge would have injected into the trial the unauthorized issue of emergency use of the defective premises which issue was not involved in the case.
4. Ground 8 of the amended motion assigns error on a certain charge given by the court. The charge merely stated the contentions of the plaintiff and the court may charge the contentions of the parties. Atlantic Coast Line R. Co. v. Ansley, 84 Ga. App. 89 (3) ( 65 S.E.2d 463).
5. Grounds 9 and 11 of the amended motion assign error on the charge of the court: "I charge you that the landlord must keep rented premises under repair. . ." Even if the above quoted portion of the court's charge, which on the assignment of error is lifted from its context, is error, it is harmless error in that defendant admitted that the porch did sag, constituting a patent defect, and that she knew of such patent defect a month before the occurrence of the injuries complained of, and the jury was authorized to find that a duty arose on the part of the landlord to repair the defective premises after notice thereof, and the court so charged the jury.
6. Ground 10 of the amended motion is without merit.
The court did not err in overruling the amended motion for a new trial.
Judgment affirmed. Sutton, C.J., and Worrill, J., concur.