Summary
In Black the plaintiff was injured when a rotten step broke and there is no question arising from an absence of a showing of injury in that case.
Summary of this case from Whitehead v. CuffieOpinion
45582.
SUBMITTED SEPTEMBER 11, 1970.
DECIDED SEPTEMBER 23, 1970. REHEARING DENIED OCTOBER 13, 1970.
Action for damages. Hall City Court. Before Judge Smith.
Greer, Sartain, Cary Cromartie, John L. Cromartie, Jr., for appellant.
Norton, Cooper Deal, W. L. Norton, Jr., J. Nathan Deal, for appellees.
1. (a) Admissions or promises of an agent are not binding on the principal when not made within the scope of his agency.
(b) Evidence relative to the existence of liability insurance is irrelevant to any issue in a damaged action, and should be excluded.
2. Direction of a verdict for the defendant was proper where, at the close of plaintiff's evidence, a case was not made out authorizing a recovery by the plaintiff.
SUBMITTED SEPTEMBER 11, 1970 — DECIDED SEPTEMBER 23, 1970 — REHEARING DENIED OCTOBER 13, 1970.
New Holland Baptist Church, a corporation, owned a house which it had used for some time as a pastorium, but it became vacant when the church constructed a new pastorium and moved the pastor into it. The property was rezoned from residential to commercial and the church determined that the house should be sold and that no money should be spent on it.
G. W. Sheridan, looking for a place into which he might move his family, saw the vacant house, learned that the church owned it and approached Mr. Edgar Crowe, who was a deacon and chairman of the church properties committee, about renting it. At first Crowe informed him that the house was up for sale and that the church was not interested in renting it, but when he went back a second time they agreed that Sheridan might rent it for $55 per month on a month-to-month basis and that Sheridan would vacate the premises when requested so to do. Crowe testified that Sheridan was informed that the church would spend no money on the house and that he would have to make any needed repairs at his own expense. Sheridan testified that, while there was nothing said about his being responsible for making repairs, Crowe did tell him that the church would spend no money on the house because of plans to sell it.
Sheridan moved in about the first of January, 1968 and shortly thereafter paid the January rent, and paid each month's rent up to June. After moving in he discovered that the back porch roof leaked badly and that there was a leak over one of the bedrooms. When he was getting his heat and a water heater installed he discovered, in crawling under the house, that water stood on the ground "about half way." A telephone installer who came out to put in a telephone shortly after he moved in, fell through one of the steps to the front porch. The under side of the step showed that the plank was rotten. Sheridan replaced it, but saw nothing to indicate that any of the other steps might be defective. These matters were not reported to the church.
James E. Black, the plaintiff, was a friend of the family and had dates with Sheridan's daughter about twice a week from prior to the time they moved into the house until the first part of June when he was injured as he stepped on one of the steps to the front porch and fell, his foot and leg going through it. That step, too, appeared from the bottom to have been rotten, but from the top appeared to be safe for use.
Black sued the church to recover for his injuries. The church brought Sheridan in as a third-party defendant, and the case came on for trial before a jury. After completion of the plaintiff's evidence a verdict was directed for the defendant church, and plaintiff appeals.
1. (a) Error is enumerated on the exclusion of testimony as to admissions alleged to have been made by R. O. Pilgrim, who was treasurer of the church and a member of its board of deacons, (and who had died after making the alleged admissions) as to the condition of the house and the church's responsibility for Black's injuries.
Black's father testified, as did Ralph Vandiver, that Vandiver called Pilgrim on the telephone to ascertain what the church would do about his son's injuries. Vandiver asserted that Pilgrim stated over the telephone that the house "was run down, had been a trouble to the church, and that they hadn't spent any money on it because they didn't know what they were going to do with it," but that they had insurance and that the hospitalization and the like for the Black boy would be taken care of.
Black testified that he saw Pilgrim while at work on his job at a mill and discussed the matter of his son's injuries with him, and that Pilgrim then assured him that "everything would be took [sic] care of — the bills and everything."
This evidence was excluded because (a) it did not appear that Pilgrim was an agent of the church having authority to handle its properties or to make admissions relative to the matter, and (b) as to the matter of insurance, the statement was in no wise a part of the res gestae and was wholly irrelevant to any issue in the case. We find no error in excluding the evidence. While there was testimony that Pilgrim was treasurer of the church, it was further revealed that his duties as treasurer were to receive moneys coming in and to make disbursement thereof when approved by the congregation, the board of deacons or its finance committee. He was not in charge of any church property, was not a member of the properties committee, or the finance committee, nor was he a member of the board of trustees. The rentals collected from Sheridan were delivered to him, and it was his duty to keep records thereof and to deposit the money in the church account.
Whether or not the agency of Pilgrim was shown, "The opinion of the defendant's agent that the plaintiff's claim was just and ought to be paid, was not admissible as testimony for the plaintiffs." East Tenn. Va. Ga. R. Co. v. Johnson, 85 Ga. 497 (3) ( 11 S.E. 809). And see Atlantic C. L. R. Co. v. Marshall, 93 Ga. App. 134, 137 ( 91 S.E.2d 96). Nor does it appear that he was authorized, in the performance of his duties as treasurer, or otherwise, to bind the church by the making of any admissions or of any promise or agreement as to the payment of the hospital or other bills. "A corporation is not bound by a declaration of an agent made outside the scope of his agency." Seaboard A.L.R. v. Sikes, 4 Ga. App. 7 (5) ( 60 S.E. 868). The statements attributed to him were clearly outside the scope of his duties as treasurer.
(b) It is well settled that it is improper to admit evidence relative to the existence of liability insurance in a damage action, since it is irrelevant and immaterial to any issue in the case. Hoard v. Maddox, 202 Ga. 274 (4) ( 42 S.E.2d 744); Harper Warehouse, Inc. v. Henry Chanin Corp., 102 Ga. App. 489, 493 ( 116 S.E.2d 641); Lanier v. Lee, 111 Ga. App. 876, 878 ( 143 S.E.2d 487); Schaefer v. Mayor c. of Athens, 120 Ga. App. 301, 304 ( 170 S.E.2d 339).
2. There was no error in the direction of a verdict for the defendant at the close of plaintiff's evidence. Code Ann. § 81A-150 (a). Before the plaintiff could recover he must show that his injury and damage resulted from some negligent act or omission to act in some duty owed to him. Code §§ 61-112, 105-104. This he had failed to do. A landlord is not an insurer. In the absence of a contrary agreement between the landlord and his tenant the measure of the landlord's duty to maintain the premises is the exercise of ordinary care. "A tenant is entitled to exclusive occupancy during the term of the tenancy, and it is his duty, if the premises get out of repair, to notify the landlord of their defective condition. The landlord is under no duty to inspect the premises while the tenant is in possession, in order to keep informed as to their condition." Ross v. Jackson, 123 Ga. 657, 658 ( 51 S.E. 578).
There is no conflict in the testimony of Mr. Crowe and Mr. Sheridan as to the fact that Sheridan was informed at the time of renting the house that the church would not spend any money on the house — and thus he must take it "as was." Thus, if there were patent defects the church could not be required to remedy them. Desverges v. Marchant, 18 Ga. App. 248 (1) ( 89 S.E. 221). If there were latent defects, as the uncontradicted evidence here indicates, in order to hold the church it must appear that it knew of them, or in the exercise of ordinary care should have known of them, and failed to disclose them to the tenant. McGee v. Hardacre, 27 Ga. App. 106 ( 107 S.E. 563). "[A] proper application of the landlord's duty to keep the premises in repair does not, under any theory, result in making the landlord liable for a latent defect in the premises, simply because it existed at the time of the lease." Elijah A. Brown Co. v. Wilson, 191 Ga. 750, 751 ( 13 S.E.2d 779). And see Ocean Steamship Co. v. Hamilton, 112 Ga. 901 ( 38 S.E. 204).
As the trial judge pointed out in directing the verdict, there was no conflict in the evidence on this matter. Mr. Crowe, who had charge of and rented the house for the church, testified that the front steps of the house appeared to be in good condition to him. He saw nothing to indicate that they might be decaying from the bottom. He had used them without mishap. The testimony of Mr. Sheridan was to the same effect. He had repaired the step which broke when a telephone installer stepped on it, but saw nothing then to indicate that there was any defect in the others — they "looked all right." He had used them from the first of January until plaintiff fell through one of them in June and without mishap. The plaintiff had been in the house numerous times as a social caller, entering sometimes by the back steps and at others by the front steps, and he had seen nothing to indicate that there was any defect in them. See Burke v. Sams, 61 Ga. App. 279, 281 ( 6 S.E.2d 596).
Although there had been mention of the need for paint and wallpaper on the walls when the house was rented, this could not be an indication of a defect in the front steps; nor would a leak in the roof of the back porch, or in the roof over one of the bedrooms, and this is true although the owner knew the house was badly in need of repairs. Reconstruction Finance Corp. v. Bilton, 65 Ga. App. 249 ( 15 S.E.2d 803); Cone v. Lawhon, 61 Ga. App. 797 ( 7 S.E.2d 597). While Mr. Sheridan asserted that he learned that water ponded under the house, causing a dampness in it, when he went under it to assist in installing heat and a water heater right after he moved in, the matter was not mentioned to Mr. Crowe, or any other agent of the church, until Crowe and the pastor went out in May to ask the Sheridan to vacate the premises so that the property might be sold. At that time the outside steps at the entrance to the front porch showed no indication of defect, and no complaint was made about them. The facts here are very similar to those in Burke v. Sams, 61 Ga. App. 279 ( 6 S.E.2d 596), and we think that the trial court properly reached a similar result — sustaining a general demurrer there, and directing a verdict here.
"Under the law of this State, it is presumed that the premises leased are in a condition suitable for the purposes for which they were rented, and if such is not the case, and damage results therefrom to the tenant, the landlord is liable, provided he has had notice of the defective condition of the premises and has failed after a reasonable time to make the necessary repairs, and provided also that the tenant has not been guilty of such negligence as to bar a recovery by him." Stack v. Harris, 111 Ga. 149, 150 ( 36 S.E. 615). And see Ledbetter v. Gibbs, 19 Ga. App. 485 ( 91 S.E. 875). The tenant's family, his guests, servants, employees, or others present by his express or implied invitation, stand in his shoes and are controlled by the rules governing as to keep the right to recover for injuries arising from a failure to keep the premises in repair. Chamberlain v. Nash, 54 Ga. App. 508 (2) ( 188 S.E. 276); Golf Club Co. v. Rothstein, 97 Ga. App. 128, 130 ( 102 S.E.2d 654), affirmed, Rothstein v. Golf Club Co., 214 Ga. 187 ( 104 S.E.2d 83).
Judgment affirmed. Jordan, P. J., and Pannell, J., concur.