Opinion
29546.
DECIDED NOVEMBER 12, 1942.
Action for damages; from Savannah city court — Judge MacDonell. January 17, 1942.
McLaws, Brennan Zeigler, for plaintiff.
Ernest J. Haar, for defendants.
1. A person who erects a building to be used as a place of amusement, if he be the proprietor or manager of such an amusement place of business, whether he be the owner of the land upon which it is located or the owner of both the land and the building, or only the lessee in possession of the place of amusement, and who expressly or impliedly invites the public there, owes a duty to the public to use reasonable care in the construction of the building for the purpose for which it was constructed, to wit: the entertainment which was to be carried on in said structure, and to keep the building in repair, that is, to repair defects of which he knows or in the exercise of ordinary diligence ought to know.
2. But it would be rather a harsh rule to hold that, if A leases a piece of land to B and B takes possession and erects a structure thereon of which he has exclusive possession and control, and by reason of unsafe construction or because of A's failure to repair defects of which he had no notice, C is injured. A may be held liable.
3. When the owner leases his land and fully parts with his possession and the tenant erects a structure thereon, the owner is transformed into what the law denominates a landlord, a particular kind of owner whose rights as they relate to such leased premises are restricted, and whose liabilities are correspondingly limited. Thus the liabilities of the owner who has been transformed into such a landlord are no longer fixed by the Code, § 105-401, but are limited and determined by § 61-112.
4. "The sufficiency of the examination preliminary to the introduction of secondary evidence of a lost original is left largely to the presiding judge; and where he is satisfied and admits secondary evidence, his discretion will not be interfered with, unless clearly abused." Turner v. Elliott, 127 Ga. 338 ( 56 S.E. 434).
5. "Where no time is specified for the duration of a tenancy, the law construes it to be for the calendar year." Willis v. Harrell, 118 Ga. 906 (2) ( 45 S.E. 794).
6. "A contract establishing the relation of landlord and tenant for one year, though made before the year begins, may be in parol. Steininger v. Williams, 63 Ga. 475." Ridgway v. Bryant, 8 Ga. App. 564 ( 70 S.E. 28).
DECIDED NOVEMBER 12, 1942.
This suit was brought for an alleged injury which occurred March 19, 1939. The original petition was filed February 19, 1940, against Robert T. Carlyle, Mrs. Emma L. Carlyle, and Gold Star Ranch Park Inc. The trial was held and the verdict rendered November 5, 1941. The judge directed a verdict for all of the defendants.
The material parts of the evidence were as follows: Carlyle and Mrs. Carlyle had leased by separate leases one piece of land to the Gold Star Ranch Park Inc., and one piece to Gus Elsner and Philip Netzlee. These two pieces or tracts of land adjoined each other and were deducted from the lot on which the Carlyles' dwelling was located. The plaintiff testified that the injury happened March 19, 1939 at "the Gold Star Ranch. As to amusements out there, [it] is a place you go right in the main driveway, going into the Gold Star Ranch, to the Casino and all of the lights and rides there, the merry-go-round, the whip, and you have the train going back of the Casino, back out down in the woods, and the motor scooters [the place where the injury occurred] are over to the right of the Casino. All of those amusements are out there, and to get to them you have to go through the main entrance to the Gold Star Ranch. Mr. Carlyle owns the whole amusements out there, the defendant sitting here. I have seen him out there. [Italics ours.] On March 19th, 1939, when I was out there, I took part in the amusements or games. We went in the Casino and played a few games of bingo, and then came out and rode the scooters. When we were riding the scooters, it was between 10 and 10:30 o'clock at night." He then testified to certain injuries which he claimed were brought about by the disrepair of the motor-scooters' track or building, if one might wish to denominate it such. The witness further testified that Mr. Carlyle "has made statements to me out at the Gold Star place, inviting me and other people to ride the scooters. I have been out there on Sunday mornings, and I think it was named the `Hay Loft' at that time. It was an amusement place, in front of his place at the Casino, and he asked us to go ride the scooters." The witness further testified that on the occasion when he was injured he bought his ticket at a window from some lady at the scooter ride, or structure where he was injured.
Carlyle introduced a lease to the land on which the scooter track was erected, which was as follows: "This agreement entered into this fourth (4th) day of January, 1939, between Gus Elsner, Philip Netzlee, and R. T. Carlyle hereafter known as Philip Netzlee and Gus Elsner of the first part and R. T. Carlyle of the second part; that the party of the second part is renting to the party of the first part a certain portion of land lying north of the premises occupied by the Carlyle family to operate a scooter-cycle track operating 10 scooters for the sum of $10 per week; that the party of the first part is to pay the rent at the end of each week to the party of the second part. It is further agreed that perfect order shall be kept on the premises and if not, at the discretion of the party of the second part, the rental contract shall be terminated. The party of the first part also agrees to assume all liability in the operation of this track, should any motor scooter be taken from the premises or any other portion of land or lands owned by the party of the second part or on the premises rented for a motor-scooter track."
Carlyle testified: "Under this contract a motor-scooter was operated out to this place." He did not build the motor-scooter track but on the contrary it was built by Gus Elsner, one of the lessees in the written contract above referred to. "The scooter track operated on that property was west of the park, which was operated by the Gold Star Ranch Park Incorporated, and north of my dwelling house. Under that contract I relinquished possession of that property. I parted with possession of it. I did not have any control over the property during the time these people were there. I did not have any control over the property March 19, 1939 [the lessees went into possession January 4, 1939]. . . and were there until the first or middle of April, 1939]. . . During the time these people operated these rides no one whatever complained to me about any defective condition of the track. I was not advised from any source, or by any person, or by going there myself and seeing the track, that there was anything defective about it or their equipment. I did not receive any notice from any source that there was anything wrong with the premises." He testified further that the lessees of this property "left sometime after April 1st, but just when, I don't know. It was sometime in April, about the middle of April, but I don't know positively. . . All I ever received was $10 a week for the rent. . . I got no percentage of the tickets sold. It was not run that way."
J. L. Auld, sworn for the defendant, testified that his father is not living at the present time, and that he and his father built the scooter track in question; that he never talked to Carlyle about anything with reference to the building of the scooter track, but that his conversation was with the lessee, Elsner; that he was paid for the work by Elsner, and did not receive any money from Carlyle. Carlyle testified that on April 1, 1939, the "Carlyle Casino" opened and the scooter ride was out there at that time; that on April 1 the following advertisement appeared in newspapers: "Gold Star Ranch Park Inc., Most sensational free act, Ride the Rides, Merry-go-Round, The Whip, Lussie Scooter, Motor Scooter, Merry Mix-Up, c.," and that it also appeared several times subsequently.
1. The injury was alleged to be due to a structure erected by a lessee on the land owned by the Carlyles. "Carlyle," as hereinafter used, will refer to R. T. Carlyle, the husband, and Mrs. Carlyle will be designated as such.
A person who erects a building to be used as a place of amusement, if he be the proprietor or manager of such an amusement place of business, whether he be the owner of the land upon which it is located, or the owner of both the land and the building, or only the lessee in possession of the place of amusement, and who expressly or impliedly invites the public there, owes a duty to the public to use reasonable care in the construction of the building for the purpose for which it was constructed, to wit: the entertainment which was to be carried on in said structure, and to keep the building in repair, that is, to repair defects of which he knows or in the exercise of ordinary diligence ought to know. And hence, when this case was formerly before this court, Carlyle v. Goettee, 64 Ga. App. 360 ( 13 S.E.2d 206), the petition which, in effect, contained such allegations, was held good against the demurrers attacking it. Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145 ( 4 S.E. 759, 12 Am. St. R. 244). But if on the trial the proof shows that the owner of the land merely leases it to another and fully parts with the possession and the right of possession, thus becoming a mere landlord, and the lessee constructs a building, and the landlord has no notice of the building being defectively constructed or being in disrepair, he is not liable for defects in the structure. The probata would not agree with the allegata, and notwithstanding the allegations in the petition there could be no recovery. Childers v. Speer, 63 Ga. App. 848, 852 ( 12 S.E.2d 439).
It would be rather a harsh rule to hold that, if A leases a piece of land to B and B takes possession and erects a structure thereon of which he has exclusive possession and control, and by reason of unsafe construction or because of A's failure to repair defects of which he had no notice, C is injured, that A may be held liable. We do not think there is such a rule in Georgia, and there would have to be in order for the plaintiff to recover under our construction of the evidence in this case. Rayfield v. Sans Souci Park, 147 Ill. App. 493 (22 A.L.R. 626); Augusta-Aiken Railway Electric Cor. v. Hafer, 21 Ga. App. 246 ( 94 S.E. 252). We might here call attention to the fact that in the case last cited the original record shows that the railroad company's name did not appear upon the advertisement advertising the amusements at the park, and there was nothing in the testimony which showed that the public was led to believe that the railroad company, in the advertisement, sponsored the operation of the amusements. If the owner of the land was the owner, proprietor, or manager, operating the place of amusement thereon, he certainly could not be said to have fully parted with his possession. And while it is true that the plaintiff testified: "Mr. Carlyle owns the whole amusements out there, the defendant sitting there. I have seen him out there," in the light of the copy of the written lease that was subsequently introduced in evidence, the testimony of Carlyle that he fully parted with the possession of the property upon which the scooter track was built when he leased it to Elsner and Netzlee, that he had nothing to do with the building of the scooter track, and no notice that it was in disrepair up to the time of the occurrence in question, and that subsequently to the occurrence the lessee left the premises and the lessor repossessed the property (the testimony does not show at what time the plaintiff referred to, whether before or after the injury, when he testified that Carlyle operated the amusement park), and the testimony of Auld to the effect that he and his father built the scooter track for the lessee and not the lessor, and was paid by the lessee, we think the evidence shows that the plaintiff had no personal knowledge of the fact that Carlyle was the operator of the amusement park at the time of the injury, and that no inference that Carlyle had invited the public to ride the scooters, or that Carlyle as the owner or operator of the scooter track at the time of the injury, was authorized by the evidence. If it is said that the plaintiff intended to testify that Carlyle was the owner, not only of the land, but also of the amusement park thereon at the time of the injury, such a conclusion of the plaintiff was not warranted by the facts upon which he based it. Evans Pennington v. Scofield's Sons Co., 120 Ga. 961, 962 ( 48 S.E. 358). As to the statement of the plaintiff that one Sunday morning while the plaintiff was out at the Gold Star place, at the part known as the "Hay Loft," Carlyle asked him and others to ride the scooters, we think, in the light of the lease and the testimony of Carlyle, that he had fully parted with possession, that this was not an invitation in the legal sense, especially so in view of the testimony of Auld that the lessee had built and paid for the structure. It was merely advice or suggestion. There was no holding out that Carlyle was operating or controlling the motor scooter track at this time, or at any time before the injury. Frear v. Manchester c. Co., 83 N.H. 64 ( 139 A. 86, 61 A.L.R. 1280).
When the owner leases his land and fully parts with possession and the tenant erects a structure thereon, the owner is transformed into what the law denominates a landlord, a particular kind of owner whose rights as they relate to such leased premises are restricted, and whose liabilities are correspondingly limited. Thus, the liabilities of the owner who has been transformed into such a landlord is no longer fixed by Code, § 105-401, which provides: "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe," but are limited and determined by Code, § 61-112, which is as follows: "The landlord, having fully parted with possession and right of possession, is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; but he is responsible to others for damages arising from defective construction or for damages from failure to keep the premises in repair." The testimony shows that before the injury an amusement park was operated on certain land which Carlyle had leased to Gold Star Ranch Park Inc., and that the park was owned and operated by Gold Star Ranch Park Inc., and it not appearing that the injury occurred before the time Carlyle repossessed the property there was no error in directing a verdict in favor of Carlyle. The principles above announced are not changed by the fact that Carlyle owned most of the stock in Gold Star Ranch Park Inc. As to Mrs. Carlyle, the testimony showed that she owned a part of the leased land and was a small stockholder in Gold Star Ranch Park Inc. There was no evidence to show that she operated, managed, or sponsored the amusement structure. There was no error in directing a verdict in her favor.
The first advertisement which listed the scooter ride among the amusements of the park was published on April 1, 1939, whereas the injury occurred on March 19, 1939; and there is nothing in the record to show that at the time of the injury the amusement corporation had ever sponsored, owned, operated, or controlled the scooter track in question, which had been erected on land adjoining its park and held under a separate lease and by a separate party; nor had it held itself out as so doing by advertisement or otherwise before April 1, 1939. Hence we think the court did not err in directing a verdict in favor of Gold Star Ranch Park Inc.
2. Relatively to the copy of the lease introduced as secondary evidence over the objection of the plaintiff Carlyle testified: "I did have at one time a contract of lease with one Gus Elsner and Philip Netzlee. This is a copy of the original lease. That lease was never recorded in the court house. The original of that lease was in the possession of my stenographer and secretary. I never had possession of it myself, other than when we signed it. We turned it over to them, one copy, and kept the other copy. I have control over the records now in my office. I have made diligent search to try to find the original lease. I have looked through everything I had, but the stenographer did all of the searching of the files, because I did not have anything to do with the putting of it away, and naturally would not know how to find anything in the files. I have searched all of my personal files, and was not able to find the original. I asked others to search for the lease, and everybody in the office searched for it. What happened when we got the contract out to make this copy for you, we don't know, and then we never saw it since." Miss Georgia May Wiggins testified for the defendant: "I work for Mr. Carlyle, I was working for him in December 1938, and January and February of 1939. In fact, I have been working for him since October 1934. I am able to take stenographic notes. On January 4th, 1939, I took some stenographic notes which, when transcribed, produced this instrument. I have the original stenographic book with me. When this case came up I made a diligent search to try to find the original of this paper in Mr. Carlyle's records. I searched everywhere possible. I transcribed this paper from the original dictated notes. I took the original dictation, and I wrote this, and this is the instrument. My notes are correct, as far as I can read. The parties to this contract signed it, and they signed it in my presence. I was the witness to it. This writing is the same language that was in the original lease; absolutely. There are no changes." Carlyle testified: "Since this case started I have tried to get hold of Mr. Netzlee and Mr. Elsner. I have seen two or three people who saw them, or say they have seen them, and I wrote them at this address, and the letter came back. I have not been able to locate them. I do not know whether or not they have now got in existence at this time a copy of this lease. I made a diligent effort to try to locate them. You told me to get their copy if I could get it, and I tried for about six months to get them located, and I have been unable to do so. I can't locate them."
It is insisted that no sufficient foundation was laid for the introduction of the secondary evidence, a copy of the lease. The question of diligence in such a case is addressed to the sound discretion of the judge. This discretion will not be interfered with unless manifestly abused. Cowart v. Fender, 137 Ga. 586 (4) ( 73 S.E. 822, Ann. Cas. 1913A, 932). Under the showing made there appears no abuse of discretion in admitting the secondary evidence. Metropolitan Life Insurance Co. v. Vickery, 49 Ga. App. 727, 729 ( 176 S.E. 815); Code, §§ 38-203, 38-212, 38-701, 38-702.
3. It is contended that the lease was defective and inadmissible because it did not express the time of its termination. This exception is not meritorious for, under the law of this State, it ran by operation of law until the last of the calendar year, no time being specified for the duration of the tenancy. Willis v. Harrell, 118 Ga. 906 (2) ( 45 S.E. 794).
4. Even if the lease were so defective as to the description of the property as to make it unenforceable between the parties as a written lease, it had some value as evidence, for the occurrence happened within two or three months after the property was rented, and if it happened during the term of the lease, within a year after the renting of the property, the verbal contract of rental, if for one year, was binding. Ridgway v. Bryant, 8 Ga. App. 564 ( 70 S.E. 28).
The judge did not err in directing a verdict in favor of all three defendants.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.