Opinion
19315.
ARGUED JUNE 13, 1956.
DECIDED JULY 9, 1956. REHEARING DENIED JULY 24, 1956.
Certiorari to Court of Appeals — 93 Ga. App. 422.
Wm. G. Grant, Robert W. Spears, for plaintiff in error.
T. Charles Allen, Fisher, Phillips Allen, contra.
To establish a defense of constructive eviction from rented property, the tenant must prove (1) that the landlord whose duty it was to keep it in a proper state of repair allowed it to become untenantable, and (2) that it could not be restored to a fit condition by ordinary repairs without unreasonable interruption of the tenant's business. The question of whether or not such essentials of the plea had been proven in the instant case was raised by the general grounds of the plaintiff's motion for new trial and by his motion for judgment notwithstanding the verdict.
ARGUED JUNE 13, 1956 — DECIDED JULY 9, 1956 — REHEARING DENIED JULY 24, 1956.
J. C. Overstreet sued Rhodes Bakery, a partnership composed of Mrs. G. E. Rhodes, G. E. Rhodes, Jr., and W. C. Rhodes, in the Civil Court of Fulton County, for $800 as rent due under a written contract for a certain building and also for interest on the unpaid rent and for attorney's fees. The defendant by its answer admitted a prima facie case in the plaintiff, but denied any obligation to pay rent, which denial was based on its affirmative plea of constructive eviction from the rented premises resulting from the plaintiff's failure to keep the building in a proper state of repair as it was his duty to do under the rent contract. After the defendant had gone forward and introduced its evidence, the plaintiff asked the court to direct a verdict in his favor on the ground that such a verdict was demanded by the evidence. His motion was denied. The plaintiff then introduced his evidence, and at the close of all the evidence the plaintiff renewed his motion for a directed verdict on the same ground. His motion was again denied. A verdict for the defendant was returned. The plaintiff moved for a new trial on the grounds that the verdict was contrary to the evidence and without evidence to support it and because it was contrary to law and the principles of justice and equity. In due time, he also moved for judgment notwithstanding the verdict on the ground that a verdict in his favor was demanded by the evidence, and his motion for such a judgment was denied. He sued out a writ of error to the Court of Appeals and assigned error on the judgment denying his motion for a new trial and on the judgment overruling his motion for judgment notwithstanding the verdict. The Court of Appeals held: "In an action by a landlord to recover rent wherein the tenants defended on the ground that there was a constructive eviction because of the failure of the landlord to repair structural defects in the premises which rendered them too dangerous for use and occupancy and constituted a breach of the lease, and there was no demurrer to the answer raising the question that the failure on the part of the landlord to repair would not constitute a breach of the lease unless making the repairs would unreasonably interrupt the business of the tenant, the landlord cannot for the first time raise such questions in this court in his brief." Overstreet v. Rhodes, 93 Ga. App. 422 (1) ( 91 S.E.2d 863). On application therefor and to review that ruling, this court granted the writ of certiorari.
(After stating the foregoing facts.) As shown by our statement of the case, the defendant admitted a prima facie case in the plaintiff's favor, and affirmatively pleaded constructive eviction from the rented building resulting from the landlord's failure to keep it in a proper state of repair as it was his duty to do under the rent contract. A rented building becomes untenantable and the tenant is constructively evicted therefrom and thereafter relieved of his obligation to pay rent, when the landlord whose duty it is to keep it in a proper state of repair allows it to deteriorate to such an extent that it is an unfit place for the tenant to carry on the business for which it was rented, and when it cannot be restored to a fit condition by ordinary repairs which can be made without unreasonable interruption of the tenant's business. Wolff v. Turner, 6 Ga. App. 366 ( 65 S.E. 41); Weinstein v. Schacter Brothers, 32 Ga. App. 742 ( 124 S.E. 803); Millen Hotel Co. v. Gray, 67 Ga. App. 38 ( 19 S.E.2d 428). See also Lewis Co. v. Chisolm, 68 Ga. 40. To establish its affirmative defense of constructive eviction from the rented premises, it was therefore necessary for the defendant in this case to prove (1) that the landlord in consequence of his failure to keep the rented building repaired allowed it to deteriorate to such an extent that it had become an unfit place for the defendant to carry on the business for which it was rented, and (2) that it could not be restored to a fit condition by ordinary repairs which could be made without unreasonable interruption of the tenant's business. Whether or not the defendant had carried the burden and proved these essentials of his affirmative plea, was a question raised in the trial court both by the general grounds of the plaintiff's motion for new trial and by his motion for judgment notwithstanding the verdict, and the Court of Appeals erred in holding that the evidence question as to whether or not the rented premises could be restored to a tenantable condition without unreasonable interruption to the tenant's business was one which it could not consider, since it had been raised for the first time in the brief of the plaintiff in error.
Judgment reversed. All the Justices concur.