Opinion
36085.
DECIDED MARCH 16, 1956. REHEARING DENIED MARCH 29, 1956.
Action for damages. Before Judge Pharr. Fulton Superior Court. November 14, 1955.
J. E. B. Stewart, for plaintiff in error.
Marvin G. Russell, Turner Paschal, Alex McLennan, contra.
1. When this case was formerly before this court, it was held that the petition stated a cause of action against the defendant landlord as against a general demurrer (see Ball v. Murray, 91 Ga. App. 686, 86 S.E.2d 706); and it was there stated that, where the landlord has fully parted with possession and right of possession, he must have reasonable notice of the defective condition of the premises as a condition precedent to his liability therefor.
2. While it is true that "a nonsuit should not be granted when there is any evidence tending to sustain the plaintiff's claim, or where the jury can fairly and reasonably infer from the evidence a state of facts favorable to the plaintiff" ( Brown v. Savannah Electric c. Co., 46 Ga. App. 393, 167 S.E. 773), it is likewise true that "`the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal. W. A. R. Co. v. Evans, 96 Ga. 481 [23 S.E. 494]; Freyermuth v. R. Co., 107 Ga. 32 [32 S.E. 668]; Ray v. Green, 113 Ga. 920 [39 S.E. 470]; Farmer v. Davenport, 118 Ga. 289 [45 S.E. 244]. And he is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him. Southern Bank v. Goette, 108 Ga. 796 [33 S.E. 974].' Southern Railway Co. v. Hobbs, 121 Ga. 428 ( 49 S.E. 294)." Davis v. Akridge, 199 Ga. 867, 868 (2) ( 36 S.E.2d 102).
3. While notice to an agent may be notice to a principal, proof of the agency is indispensable ( McNamara v. McNamara, 62 Ga. 200); and, even if one be shown to be the agent of another, in order for notice to the agent to be notice to the principal, the subject matter of the notice must be shown to be connected with the agency. Central of Ga. Ry. Co. v. Americus Construction Co., 133 Ga. 392 ( 65 S.E. 855). Under an application of the foregoing principles of law to the facts of the present case, the plaintiff failed to prove, as alleged in the petition, that the defendant landlord was notified of the defective condition of the steps, and the trial court did not err in awarding a nonsuit in the case, upon motion of counsel. While there is evidence that a "Mr. Newsome" was notified of the alleged defective condition of the steps, there was no evidence that Mr. Newsome was an agent of the defendant landlord; or, if he could have been said to be an agent, there is no evidence that the condition of the premises was a matter connected with his agency. Thus, notice to Mr. Newsome will not be presumed to have been notice to the defendant landlord. The plaintiff's testimony on the question of notice to the landlord of the alleged defective condition of the steps must be construed most strongly against her, as it was self-contradictory, vague, and equivocal. There was, consequently, no evidence, or evidence from which the jury could fairly and reasonably infer a state of facts favorable to the plaintiff, on the question of notice to the landlord.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED MARCH 16, 1956 — REHEARING DENIED MARCH 29, 1956.
The plaintiff's testimony on the subject of notice to the defendant landlord of the defective condition of the steps is as follows: "Q. Now, Mrs. Ball, you recall talking to Mr. Stewart about this case, don't you? A. Beg pardon? Q. You recall talking to your lawyer, Mr. Stewart, about this case, don't you? A. Yes, we went over the evidence. Q. Well, now, why did you tell Mr. Stewart that you gave Mr. Murray notice that those steps were defective and that the — A. Mr. Ball did give Mr. Murray notice. Q. I am going to refer you to your amendment filed on the 10th day of March, 1954 — and I will ask you to refresh your memory, if you please — Paragraph 1 of that amendment. A. I don't understand all of this; it doesn't mean a thing to me. Q. Well, let's — let's go into it. Now, you are asking for damages? A. I don't understand amendments or anything else. Q. All right, let's get into the heart of it, then, if I may, I — A. It's out of my line. Q. I will go over it with you. You alleged in your amendment that Mr. Murray owed you a duty to keep the stairway in a reasonable state of repair and that he didn't do it, that in August or September of 1951, the exact date being unknown to you, you called defendant, Mr. Murray, on the telephone and told him that certain steps of said stairway leading from the rear entrance of said premises to the ground were in need of repair; you said that you knew you were talking to Mr. Murray for the reason you recognized his voice, having talked with him in person over a period of approximately two years; you said that after telling Mr. Murray of the defective steps in August or September of 1951, as aforesaid, you later talked to him over the telephone on two or three different occasions, the exact dates being unknown to yourself, and asked him to repair the steps; the last time you asked Mr. Murray to repair the steps was during the month of June, 1952, the exact date being unknown to plaintiff. Now, did you ever call Mr. George Murray and talk to him about the steps? A. I didn't take care of the business; Mr. Ball done it. Q. I am asking you, did you ever call Mr. Murray, as your amendment says here? A. No, I thought — I told Mr. Newsome — Q. You — never called Mr. Murray, as it says here, you never recognized his voice over the telephone? A. I called him one time and Mr. Ball took care of it after that. Q. Did you ever call Mr. Murray and talk to him about the steps? Do you recall my asking you, on the deposition — I asked you the question, `Did you ever tell Mr. Murray,' and you said, `I don't know if Mr. Ball told him or not, I didn't,' and I said, `You never did call him over the telephone and tell him that the steps were in bad shape?' Answer, `I think Mr. Ball told him one night, he called him on the phone.' `Well, I am asking you, did you tell him,' and you said, `No.' A. No, I didn't because that year — Q. What? A. I hadn't called him, Mr. Ball called him and I told Mr. Newsome about it because he was the one that was taking care of it. Q. So all of these allegations that you have made and filed in court through your attorney about you calling Mr. Murray and telling him the steps were bad, needed fixing, and recognizing his voice, they are not true, then, are they? A. I did call him at first but not later on. Q. Well, didn't you just tell me, in the deposition, that you did not ever talk to Mr. Murray about the steps? A. I thought you were talking about just recently. Q. Mrs. Ball, I read you the allegations you made in your petition — A. I don't know, I thought you were talking about that year that Mr. Ball fell. Q. Did you — excuse me — did you ever call Mr. Murray in June of nineteen-fifty — in August or September, 1951, and tell him that those steps were in bad condition? A. I don't know what happened then, it's so far — long ago. Q. Well, where did Mr. Stewart get these allegations he is filing in Court as an amendment to your petition? A. It's been so long ago, I can't remember. Q. Well, did you tell Mr. Stewart these things? Would you like to look at it and refresh your memory further? A. I told Mr. Murray one time that — about it and from then on Mr. Ball called him and I told Mr. Newsome about it. Q. Well, then, what you told me on the deposition, that you did not tell Mr. Murray, then that's not correct, is it? A. Well, I didn't tell him for the last — recent years. Q. I am talking about at the time you said in here, prior to August 14th — August 8th, 1952. A. I don't know what happened then."