Summary
In Nunnally v. Shockley, 97 Ga. App. 300 (5) (103 S.E.2d 74) it was stated generally that "services of the wife constitute a part of consortium."
Summary of this case from Pinkerton c. Agency v. StevensOpinion
36944.
DECIDED FEBRUARY 21, 1958. REHEARING DENIED MARCH 11, 1958.
Action for damages. Walton Superior Court. Before Judge Cobb. September 7, 1957.
Orrin Roberts, William P. Whelchel, for plaintiffs in error.
D. M. Pollock, A. M. Kelly, Stephens, Fortson, Bentley Griffin, Edwin Fortson, contra.
1. When a tenant assumes exclusive possession of the premises the landlord is responsible only for such defects of which he has notice, but if the landlord either retains or assumes a right of entry he is then liable for such defects as should be discovered by the exercise of ordinary diligence.
2. A special ground of a motion for new trial which does not state how a charge excepted to is harmful, is too incomplete to be considered by this court.
3. A special ground of a motion for new trial which excepts to several excerpts from the charge, some of which are correct and applicable to the facts of the case, is without merit.
4. Where exception is taken to the failure of the judge to charge a principle of law which was fully covered in the charge the ground is without merit.
5. Services of the wife constitute a part of consortium.
6, 7. Special grounds 5 and 6 of the amended motion for new trial are without merit.
DECIDED FEBRUARY 21, 1958 — REHEARING DENIED MARCH 11, 1958.
A. G. Shockley filed a suit against Harry B. Nunnally, Mrs. Frances N. Napier and Mrs. Clara Knox N. Roberts, for expenses, loss of services, and consortium of his wife.
The petition alleged in part that: on November 15, 1952, and previous thereto, the defendants were owners, as tenants in common, of a two-story brick building on the west side of North Broad Street in the City of Monroe, Georgia, Walton County, the building being known as the Eulalia Building and containing stores and an office on the first floor and offices and shops on the second floor; the building also contained a lobby on the first floor for the accommodation of patrons using the building; the stairway extended from the lobby to the second floor; the building also contained an entrance from the lobby to a store on the northerly side and an entrance to a store on the southerly side and an entrance to offices in the rear of the lobby; the building also provided entrances to the stores from North Broad Street; that M. G. Crossley operated a store at the time and place, November 15, 1952, on the first floor of the building, being a southerly store room, the store being a part of the Eulalia Building; there was an entrance to the store room from North Broad Street and also an entrance from the lobby of the building; on said date petitioner's wife, Mrs. A. G. Shockley, was leaving her beauty shop on the second floor of the building to go home to lunch, and in leaving the building walked out of the lobby and into the Crossley store through the doorway connecting the lobby with the store; his wife was leaving the lobby by that route to leave the building and to purchase ice cream from Crossley's store enroute home; the doorway was through a partition wall of the building separating the Crossley store from the lobby; the lobby floor and the floor of the Crossley store were the same level; a glass and wood door was hung in the doorway, hinged to swing into the Crossley store; two narrow screen doors were hung on the lobby side of the doorway casing, one on each side of the doorway, swinging out into the lobby, and closing together in the center of the doorway; the lobby floor and the store floor both extended into the doorway and to within about one inch of each other, leaving a crack about one inch wide and one inch deep between the two floors; a wooden threshold strip was fitted in the doorway, covering the crack; the threshold lay under the wood and glass door, projecting from under the door when closed, an inch or two onto the store side of the floor and a like distance onto the lobby floor; the glass and wood door was a standard size interior door, and the screen doors were each about half the width of a standard interior door; the threshold strip was not securely fastened in place; it was held only by one roofing nail driven into it near the easterly end of the threshold, the nail being a short nail with a large, broad metal head, being a nail designed and used in building construction and maintenance for the special purpose of fastening thin roofing material in place; such a nail was too short for use in fastening threshold and did not prevent this threshold from moving out of place when petitioner's wife stepped upon it as hereinafter set forth; threshold strips of this type in the doorway are commonly fastened down by use of several long slender nails with small heads, which nails go through the strip and into the floor beneath, and which heads sink into the threshold strip; no such nails were in this threshold, and it was not fastened down securely, and had no nail at all in the westerly portion of the threshold, thus leaving that end loose and movable on the floor; the large round head of the roofing nail showed it, to one familiar with the uses of common nails in building maintenance and repair, to be the wrong nail for use on the threshold strip, and its presence there was notice to the defendants that the threshold was not properly nailed; petitioner's wife did not know of the loose and improperly fastened condition of the threshold strip nor was there anything in its apparent condition to cause her, in approaching the doorway and walking through it in the exercise of reasonable care for her own safety, to suspect the loose condition of the strip or to believe the doorway was not a safe place for her to use in leaving the lobby and entering the store; petitioner's wife did not know of the use of the roofing nail in the threshold, did not see it there, its location near the easterly end of the strip and behind the closed screen door making it not apparent to her nor discoverable by her in the exercise of ordinary care in using the doorway; had she known of the roofing nail it would not have given her any reason to suspect the dangerous condition of the threshold, as she was not familiar with, and had no reason to be familiar with, the types and uses of nails in building maintenance, construction or repair; as petitioner's wife reached the doorway out of the lobby she opened the westerly screen door and started out through the doorway; her foot came in contact with the westerly half of the threshold strip, which in its loose condition moved forward, exposing and uncovering the crack between the two floors, and the moving threshold and exposed crack tripped petitioner's wife and caused her to fall forward through the doorway and into the Crossley store with great force and to fall violently onto the floor in the Crossley store; the occurrence took place about one o'clock, p. m., on said date; the building at the time and place, as well as the stores and offices therein, being open for the patronage of the public and the public being invited to use same by the defendants and to enter the stores and offices from the lobby for the patronage of those occupying the building; on said occasion petitioner's wife was an invitee of defendants; petitioner's wife, Mrs. A. G. Shockley, had no knowledge that the threshold was loose or that there was a crack between the floors, and she had no reason to believe that she could not safely pass through the door into the store room, and she was in the exercise of ordinary care for her own safety; that said defective condition of the threshold and exit from the lobby and entrance to the store room was not obviously dangerous to petitioner's wife, she having no knowledge that the threshold was not nailed down as it should have been and having no knowledge that a crack existed between said floors; that said defects at said exit and entrance were hidden and were not obvious to the plaintiff's wife in the exercise of ordinary care; petitioner's wife did not know that the threshold was not nailed down and did not know that it would move and expose the crack, and she had no occasion to make a close and minute examination of the same, and the threshold and crack were obscured by the screen door, and she was not warned or notified of any of the defects, which were not discernible to petitioner's wife who was in the exercise of ordinary care; that defendants owned and maintained the Eulalia Building at the time of the injury to petitioner's wife; defendants herein were legatees under the will of W. H. Nunnally; defendants employed the Trust Company of Georgia as agent for the defendants, to maintain and supervise the building, including keeping the building insured, collecting the rent, and maintaining the building, and Trust Company of Georgia was such agent for the defendants at the time of the injury to petitioner's wife, Mrs. A. G. Shockley; through such agents the defendants retained and exercised the right to enter the Crossley store premises for the purpose of inspecting and repairing the same, and prior to November 15, 1952, did inspect the premises when the defective threshold was there and the nail visible, and in the exercise of ordinary care defendants should have discovered the defective condition of the threshold and should have repaired it; that the defendants knew, or in the exercise of reasonable care should have known, of the dangerous and unsafe condition as to the exit from the lobby of defendant's building into the store room of M. G. Crossley; that defendants were negligent, proximately causing the injury to petitioner's wife and damage to petitioner as follows: (a) in keeping a doorway in the building, being the entrance to a store from the lobby of the building, in an unsafe condition for Mrs. Shockley, an invitee of defendants; (b) in not providing safe ingress and egress from its lobby to the storeroom entrance of the store occupied by M. G. Crossley; (c) in not nailing down the threshold under the screen door in the lobby of the building; (d) in maintaining the threshold without having it securely nailed to the floor; (e) in not inspecting the threshold and discovering such defect in it; (f) in not warning petitioner's wife of the danger and defects of the threshold and exit from the lobby and entrance into the store, which the owner knew of or in the exercise of ordinary care should have known of; (g) in not keeping the premises and approaches safe by securely nailing the threshold to the floor, thereby preventing it from moving and exposing the crack; that as a result of Mrs. Shockley being so thrown to the floor, she suffered serious, painful and permanent injury by a severe fracture of the left hip, the bone which joins the hip at the hip joint having been broken so that the joint would not function in the socket of the hip joint by a metal pin which petitioner now has inserted and which will remain for the balance of her life; petitioner shows that by reason of the disability sustained by his wife she has been unable to perform her duties as a housewife, and petitioner shows that he has lost the services of his wife and will continue to lose her services; petitioner shows that he has lost the consortium of his wife, which will continue.
The defendants filed an answer in which they denied the material allegations of the petition.
On the trial the jury returned a verdict for the plaintiff. The defendants filed a motion for new trial which was denied. It is to this ruling exception is taken.
1. The defendants insist that Nunnally v. Shockley, 91 Ga. App. 767 ( 87 S.E.2d 115) and Shockley v. Nunnally, 93 Ga. App. 437 ( 91 S.E.2d 793), appeals from jury trials in which Mrs. Shockley sought damages arising out of the same fall alleged in the present petition, established the law of the case adversely to the claim of the plaintiff. With this contention we cannot agree. In those cases it was held that, no notice of the defective threshold having been received by the landlords, the verdict was unauthorized by the evidence because the threshold, where the injury occurred, was on premises to which the defendants had no right of entry. It will be noted that in those cases a right of entry by the landlords was neither pleaded nor proved. In the present case the petition alleged that the landlords, through their agent, retained and exercised the right to enter the Crossley store for the purpose of inspecting and repairing it. This allegation placed an entirely different burden of care upon the defendants from that alleged in Mrs. Shockley's petition ( Dobbs v. Noble, 55 Ga. App. 201, 203, 189 S.E. 694), and the decision in her case did not establish the law of the case as to the defendants' duty to discover and repair the defective threshold.
Mrs. Shockley testified in part that: she was entering the Crossley store to purchase some ice cream; as she opened the screen door the toe of her shoe hung on the threshold and it moved and she fell; there was nothing on the threshold to indicate that it would move; she had received no warning as to the fact that the threshold would move.
J. B. Hammond testified in part that: he went back and looked at the threshold strip after Mrs. Shockley had been carried out of the store; he could tell that the strip had been knocked loose because of the fresh dirt under it; the threshold strip had been knocked to one side at approximately a 50 degree angle.
Paul Cleaton testified in part that: he examined the threshold and there was a big-headed roofing nail in the east side of the threshold, but the west side was loose; he carefully examined the threshold and found no evidence of any nail ever having been put in it to hold it to the floor.
Mell Conner testified in part that: he inspected the threshold and it was loose on the west side; there was a roofing nail in one end and there was no nail in the other end of the threshold strip; the threshold could be moved back and forth with your toe; there was no evidence that a nail had ever been put in the loose end of the threshold; in his opinion the roofing nail was not the type that you normally see fastening a door sill.
The above evidence was sufficient to present a question for the jury as to whether the threshold strip was maintained in a negligent manner and whether this negligence was the proximate cause of Mrs. Shockley's injuries.
Whether or not the proof submitted by the plaintiff was sufficient to show actionable negligence on the defendant's part, and whether the defendant's negligence, or Mrs. Shockley's negligence was the proximate cause of her injuries, were question for the jury.
When a tenant assumes exclusive possession of the premises the landlord is responsible only for such defects of which he has notice, but if the landlord either retains or assumes a right of entry he is then liable for such defects as should be discovered by the exercise of ordinary diligence. Davis v. City of Atlanta, 84 Ga. App. 572, 576 ( 66 S.E.2d 188); Dobbs v. Noble, 55 Ga. App. 201, 203, supra.
In regard to whether the Trust Company of Georgia, an agent of the defendants, inspected the premises, M. G. Crossley, owner of the store in which Mrs. Shockley fell, testified in part that: "When the Trust Company of Georgia took over the property, I think Mr. Adams let us know they had taken over in a personal letter. But he did come in periodically every 4 to 6 weeks, and he would come in my place and look over my place and talk to me about it. He would look around and see what condition it was in. I didn't call on him to come and make those visits, he just appeared and looked around."
As to this same issue, C. W. Shurlock, another tenant in the building testified in part that: "While I was in the building Mr. Deadwyler, representative of the Trust Company of Georgia, came down a few times and made a few suggested changes and repairs in the office. When the Trust Company of Georgia took over the operation and management of the property they made some changes and adjustments that they thought were necessary. They examined the building, I think all the property, and made some minor repairs to put the property in first class condition; they painted the inside of the building and they moved the partition that divided our office from the main lobby forward and increased the size of the office. This was as the result after their general inspection of all the property."
The above testimony was sufficient to present an issue for the jury's determination as to whether the defendants through their agent, the Trust Company of Georgia, assumed the right to enter and inspect the premises, and if the jury decided the above question in the affirmative, as to whether the defendants' agent was negligent in failing to ascertain that the threshold strip was defective and repair the same. The general grounds are without merit.
2. Special ground 1 of the amended motion for new trial excepted to the trial judge's failure to charge the jury that "the husband would have no right of recovery against these defendants unless the wife, for whose services he was suing, had a right to recover of these defendants." The ground failed to state how this omission was harmful to the defendants and was too incomplete to be considered by this court. Jones v. State, 50 Ga. App. 14 (1) ( 176 S.E. 824); Morris v. State, 185 Ga. 67 (2) ( 194 S.E. 214); Smallwood v. Pollard, 54 Ga. App. 617, 618 ( 188 S.E. 594).
3. Special ground 2 made a general exception to 5 excerpts of the charge. This ground is without merit, because some, if not all, of the principles charged were correct and applicable to the facts of the case. Louisville Nashville R. Co. v. Bean, 49 Ga. App. 4 ( 174 S.E. 209).
4. Special ground 3 assigns as error the judge's failure to charge the following: "to the effect that where the landlord has neither possession nor right of possession, he must have reasonable notice of the defective condition of the premises before he can be held liable for injuries resulting to his tenants or their invitees from such defects." This ground is without merit because this principle was fully covered by the following charge which was given the jury: "The landlord is under no duty to inspect the rented premises in order to keep informed as to their condition; he cannot be held liable for damages caused from defects in the rented premises occurring after he has parted with the possession, unless he has been notified thereof, and has had a reasonable time in which to make repairs, and that would apply where there is an agent to supervise the building."
5. Special ground 4 complains of the following charge: "I charge you further that consortium, that is the right of a husband or wife to the conjugal fellowship, cooperation and aid of the other in every conjugal way, may be considered in the loss of services of the wife by a husband." The defendants insist that there was no evidence that the plaintiff had lost the consortium or conjugal relations of his wife. Mrs. Shockley testified that she was not able to do her housework for some time after the accident. The plaintiff testified that Mrs. Shockley was not able to do her housework for a year or a year and a half as a result of her injuries; he often had to defer going to work in order to help her with things around the house that she was not able to do. Services constituting a part of consortium, the charge was supported by evidence and the ground is without merit. Hobbs v. Holliman, 74 Ga. App. 735, 739 ( 41 S.E.2d 332); 26 Am. Jur. 637, § 9.
6. In special ground 5 error is assigned on the following charge: "When thus impeached he may be sustained by proof of general good character, the effect of the evidence to be determined by the jury." The defendants contend that the charge was harmful because Mrs. Shockley was impeached as to a portion of her testimony and nowhere in the evidence was an effort made to prove her good character. While it is true there was no evidence as to her good character, Mrs. Shockley being a witness for the plaintiff, the charge, while erroneous, was not harmful to the defendants. McCommons-Thompson-Boswell Co. v. White, 33 Ga. App. 20 (4) ( 125 S.E. 76); Geer v. State, 184 Ga. 805 ( 193 S.E. 776); Bart v. Scheider, 39 Ga. App. 467, 470 ( 147 S.E. 430); Weatherby v. State, 213 Ga. 188, 192 ( 97 S.E.2d 698).
7. Special ground 6 insists that the verdict was excessive. In Atlantic Greyhound Corp. v. Austin, 72 Ga. App. 289, 292 ( 33 S.E.2d 718) it is said: "This court does not have as broad discretionary powers as are conferred on trial judges in setting aside verdicts as excessive. When a case comes before this court, after the refusal of a new trial by the presiding judge, it comes not only with the presumption in favor of the verdict, but also stamped with the approval of the judge who tried the case, and where no prejudice, or bias, or corrupt means in reaching the verdict appear, we are not authorized to set it aside as being excessive." We do not feel that there was evidence of any mistake or undue bias by the jury in arriving at the damages in this case, and this ground is without merit.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.