Opinion
37761.
DECIDED SEPTEMBER 11, 1959.
Action for damages. DeKalb Superior Court. Before Judge Hubert. April 13, 1959.
Stephens D. Habel, for plaintiff in error.
James W. Dorsey, Nall, Miller, Cadenhead Dennis, contra.
The petition, as amended, shows that the injuries sued for were not caused by the failure of the plaintiff to use ordinary care and caution for her own safety. The court erred in sustaining the general demurrers and in dismissing the case.
DECIDED SEPTEMBER 11, 1959.
Mildred Holloway filed suit for damages in the Superior Court of DeKalb County against Mollie Clein Feinberg, as executrix of the estate of Benjamin Clein, deceased, and alleged that as such she is landlord to the tenants occupying 328 Fort Street, N.E., in Atlanta, the plaintiff being a tenant and occupying apartment No. 2 in the house at the said address on September 10, 1958. The plaintiff alleged that she was injured and suffered pain and medical expenses and the defendant was liable to her in the sum of $10,000 damages; that on said date and for several months preceding, Allan-Grayson Realty Company, with offices at No. 40 Pryor Street, S.W., in Atlanta, was rental agent for said 328 Fort Street, N.E., of which defendant executrix was landlord, including apartment No. 2 thereof; that approximately one month before September 10, 1958, the plaintiff had notified said rental agent that the front porch to the apartment "was in need of repairs"; that on September 10, 1958, about 3 in the afternoon, she was sitting in a chair on the front porch of the apartment and that "suddenly and without warning, the large timber upright which supported the porch overhead" in front of such apartment fell against petitioner, striking her on the neck and right shoulder and injuring her, and also causing the plaintiff to have to undergo medical expenses; that the defendant had reasonable notice of the defective porch and she was grossly negligent in not repairing it; that the sole cause of the damages now sued for was the negligence of the defendant executrix in failing to keep said premises in proper repair; that such executrix, as the landlord, had the duty of keeping same in repair and suitable for use as a place of residence, for which purpose the plaintiff did rent and was so occupying said apartment.
The defendant demurred to the petition generally on the ground that no cause of action was therein set out against her, and demurred to and moved to strike paragraph 15 of the petition wherein the plaintiff alleged "that defendant made no attempt to secure medical treatment for petitioner and displayed a callous disregard for her pain, suffering and general welfare," upon the ground that same is irrelevant, immaterial and calculated to be prejudicial to the defendant.
Thereupon, on March 12, 1959, the trial court sustained the demurrer of the defendant and directed that said paragraph 15 be stricken, and in this order gave to the plaintiff 20 days within which to amend.
On March 13, 1959, the plaintiff amended her original petition by adding to the sixth paragraph thereof wherein she had alleged that she had notified the defendant's rental agent that the front porch to her apartment was in need of repair, the words "in that the front portion of the floor and ceiling of said porch was rotten and she feared for the safety of her small children who frequently played thereon." and by adding to paragraph 10 of the petition, wherein she alleged that she had no reason to believe that she was not safe sitting in the chair as was her custom, the words "said chair being placed near the wall where the floor, ceiling and supports appeared sound."
On March 16, 1959, the defendant renewed her demurrers to the petition as amended, and set out that said petition as amended, failed to set forth any cause of action against the defendant.
On April 13, 1959, the court sustained the demurrer as renewed and dismissed the petition as amended on the ground that it failed to set out a cause of action.
Within the time allowed by law the plaintiff sued out her writ of error to this court wherein she assigned as error as being contrary to law the final order and judgment of the judge of said superior court in dismissing her petition as amended.
Code § 61-111 provides that it is the duty of the landlord to keep the premises let by him to another in repair. The tenant must give notice to the landlord of the defects in the rented premises and the need of such repairs before there arises and is imposed upon the landlord the duty to make the needed repairs and he becomes liable for injury to the tenant caused by same. However, where a portion of the premises rented by the plaintiff from the defendant is in a state of disrepair and in a defective condition, and the plaintiff tenant knows thereof, such tenant must refrain from using any part of the rented premises, the use of which would likely be attended with danger to such tenant. This is true even though a timely and proper notice of the defective condition of the rented premises is given to the landlord. See Ball v. Walsh, 137 Ga. 350 ( 73 S.E. 585).
In the case under consideration the tenant notified the landlord that certain portions of the front porch of the premises so rented by her from the defendant were in a bad and defective condition. The petition, as amended, affirmatively sets out therein that certain portions of the front porch of the apartment rented by her from the defendant were in need of repairs in that the front portions of the floor and ceiling of the porch were rotten, and the plaintiff alleged "the large timber upright and which supported the porch overhead in front of the apartment #2 rented by her" fell against the plaintiff who was seated in a chair on the front porch. It is true that it is the duty of the tenant to notify the landlord of defective conditions prevailing in rented quarters and to refrain from using that portion thereof, the use of which is attended with danger. Gallovitch v. Ellis, 55 Ga. App. 780 ( 191 S.E. 384) and citation. However, in the instant case the petition, as amended, sets out that the plaintiff at the time she was injured was seated in a place where she would not likely be subjected to danger. The petition herein, as amended, shows that the plaintiff exercised ordinary care and prudence for her own safety under the apparent conditions, and that she had a right to assume that the portion of the front porch where she sat was in such a state that she could have used it without danger to herself.
In Shattles v. Blanchard, 87 Ga. App. 15 ( 73 S.E.2d 112) headnote 2 reads: "Questions as to negligence and contributory negligence are, except in plain and indisputable cases, for the determination of the jury, and where the allegations of the petition do not, even when construed against the pleader, demand the conclusion that the plaintiff's own negligence so preponderated as to preclude a recovery by her, this issue should be left for determination by a jury." On p. 18 of that opinion the court said: "Ordinarily, whether or not the plaintiff was in the exercise of ordinary care for her own safety is a question for the jury, and when she has no reasonable ground for suspecting that the part of the stairway which she uses in dangerous, and it does not appear from the petition that persons of ordinary prudence would, under the circumstances, have been put on notice of their obvious danger, this question should be submitted to the jury. See in this connection Johnson v. Collins, 98 Ga. 271, 273 ( 26 S.E. 744) . . . Except in clear and palpable cases, it is a jury question as to whether the plaintiff was in the exercise of ordinary care for her own safety. See Miller v. Jones, 31 Ga. App. 318 ( 120 S.E. 672); Alexander v. Owen, 18 Ga. App. 326 ( 89 S.E. 437); Dessau v. Achord, 50 Ga. App. 426 ( 178 S.E. 396)."
The petition before us shows that the plaintiff was using a part of the porch which she had no reason to believe was unsafe, and was thus not exposing herself to known dangers.
It follows that the court erred in sustaining the general demurrers to the petition as amended.
Judgment reversed. Townsend and Carlisle, JJ., concur.