Opinion
28788.
DECIDED MARCH 8, 1941.
Damages; from Savannah city court — Judge MacDonell. September 5, 1940.
Anderson, Cann Dunn, for plaintiff in error.
Nolie B. Wyse, Gilbert E. Johnson, contra.
It appearing from the petition as amended that the alleged defective condition in the steps of the rented premises was latent and unknown to the plaintiff, the wife of the tenant, and that in reliance upon the assurance of the defendant landlord that the steps had been properly repaired and were safe she went upon the steps, and without fault on her part, and as a result of the negligence of the defendant landlord in failing to properly repair the steps, suffered physical injuries as alleged, the petition as amended set out a cause of action, and the demurrer was properly overruled.
DECIDED MARCH 8, 1941.
Mrs. Annie Clifton brought suit against John J. Rourke to recover damages alleged to have been sustained by her as the result of defective steps leading from the back porch of a house rented by her husband from the defendant. It was alleged, that in July, 1939, after the plaintiff's husband rented the house, such steps became defective, and he notified the defendant thereof; that in August, 1939, the defendant came to the house, made certain repairs to the steps, and then assured the plaintiff that such steps were properly repaired and were safe for use; that the plaintiff, relying upon this assurance, again began to use the steps, "and thereafter continued to use them;" that on or about December 2, 1939, while a tenant of the defendant as alleged, in coming out of the house for the purpose of going into the back yard, and in using such back porch steps and "relying upon them being in a safe condition," the plaintiff stepped upon the "step-boards" thereof, "without notice or warning of their defective condition," and the third "step-board" from the bottom of the steps "broke and tilted forward," causing the plaintiff to lose her balance, "catapulting and pitching her into the yard below," and injuring her; that her injuries were caused by the negligence of the defendant "in failing to properly repair said steps after their unsafe condition had been reported to the defendant by your petitioner's husband," and "in assuring your petitioner that the steps aforesaid had been properly repaired, when the defendant knew, or should have known, that they were in fact unsafe for use;" and that as a result of such negligence the plaintiff was injured as alleged.
The defendant demurred to the petition generally, and specially to various paragraphs thereof. For the purpose of meeting certain of the grounds of special demurrer, namely that paragraph 5 of the petition should be stricken because it failed to set out in what manner the steps were defective or when they became defective, and that paragraph 7 should be stricken because such paragraph failed to set out the manner in which the step broke, or the nature of the alleged defective condition which caused the break, the plaintiff by amendment added to the petition paragraph 5a, as follows: "That said repairs by the defendant were defective in that he nailed the step, hereinafter described, into a defective and rotten stringer, and in that he put a split step-board upon said stringers without having repaired said step-board in such way as to keep it from splitting again and tilting forward as hereinafter described: said step-board having only been reinforced by the defendant by tacking a piece of tin across the split in said board and on the bottom of said board, which in fact did not strengthen it at all, and thus caused said step to split again at the time and in the manner hereinafter set out. That said defective condition and repairs were not known to petitioner, and that she could not have detected the same by the exercise of ordinary care, because said defective repairs were not observable except by getting down under the steps and examining them." The judge allowed this amendment, subject to demurrer. The defendant renewed his demurrer to the petition as amended, and for grounds thereof urged that paragraphs 5 and 7 of the petition as amended by adding paragraph "5a" should be stricken, because they failed to set out in what manner the steps were defective and when they became defective, and because they failed to set out the manner in which the step broke or the nature of the alleged defective condition which caused the break. The judge rendered this judgment: "In view of the amendment, all the within demurrers both general and special are hereby overruled." To this judgment the defendant excepted.
"One who rents premises to another and, after undertaking to repair them, assures the tenant they are in safe condition to be used, is liable to the tenant for injury resulting from their improper repair." Hill v. Liebman Inc., 53 Ga. App. 462 (2) ( 186 S.E. 431), and cit.; Jadronja v. Bricker, 49 Ga. App. 37 ( 174 S.E. 251), and cit.; Marr v. Dieter, 27 Ga. App. 711 ( 109 S.E. 532); Adams v. Klasing, 20 Ga. App. 203 ( 92 S.E. 960); Graham v. McCullough, 58 Ga. App. 668 ( 199 S.E. 773). It appears from the allegations of the petition as amended that the alleged improper or insufficient repairs to the steps, made by the defendant, were the proximate cause of the step breaking and tilting forward and thus causing the plaintiff to be injured. It does not appear, as contended by the defendant, that the "defectively repaired steps would have withstood constant use for a period of four months," that such period "was a sufficient period, so that some new defect had time to arise and cause the step to break," and therefore that the petition as amended failed to allege a cause of action, because "there is no allegation that notice was given of any new defect." It does not appear, as contended by the defendant, that the plaintiff could have seen that the step which broke and tilted forward was in a defective condition, and therefore that the defect in the steps which caused the plaintiff's injury must have been apparent to her in the exercise of ordinary care. The defendant also contended that "no step actually repaired in the negligent manner described in the petition could possibly have withstood constant use by a family of five for a period of four months," and that, the defect in the steps "being apparent, the plaintiff in the exercise of ordinary care should have discovered it and governed herself accordingly." This contention is not authorized by the allegations of the petition as amended. Under the authorities and principles of law above referred to, the petition as amended was not subject to any of the demurrers, and the judge properly overruled them.
Judgment affirmed. Sutton and Felton, JJ., concur.