Opinion
42749.
SUBMITTED MAY 4, 1967.
DECIDED MAY 17, 1967. REHEARING DENIED JUNE 9, 1967.
Action for damages. DeKalb Superior Court. Before Judge Hubert.
Smith, Cohen, Ringel, Kohler, Martin Lowe, Warren C. Fortson, for appellant. Nall, Miller, Cadenhead Dennis, Lynn A. Downey, Long, Weinberg Ansley, Ben L. Weinberg, for appellees.
Applying well-settled principles of law to the undisputed evidence in this case, the landlord incurred no liability to the tenant for injuries caused by the collapse of a porch, and the trial judge erred in overruling the landlord's motion for a summary judgment.
SUBMITTED MAY 4, 1967 — DECIDED MAY 17, 1967 — REHEARING DENIED JUNE 9, 1967 — CERT. APPLIED FOR.
This case originated as an action by a tenant against her landlord and the Georgia Power Company for injuries caused by the collapse of a front porch floor while agents of the power company were delivering an appliance purchased by the tenant. When the case was here previously this court affirmed the grant of a summary judgment in favor of the defendant power company. Somers v. Tribble, 115 Ga. App. 282 ( 154 S.E.2d 620).
In her petition the plaintiff Somers alleges that the defendant Tribble, her landlord, was negligent in failing to repair the front porch after receiving notice of defects, in failing to keep the premises safe, in violation of Code § 105-401, and in failing to repair the premises, in violation of Code § 61-112. The lease which the plaintiff attached to her amended petition included in its printed provisions the right of the lessee to exclusive control of the premises and relieved the lessor of any duty of inspection. The lessee was obligated to report any defective condition which the lessor was required to repair, and the failure to report such a defect made the lessee responsible to the lessor for any liability incurred by reason of such defect. The lessee also agreed to indemnify and save harmless the lessor against all claims for damages to persons or property by reason of the use or occupancy of the leased premises. In the typed provisions, which by the terms of the contract control over the printed provisions, the lessor agreed to repair the front and back porches. In her deposition the plaintiff explained that when she and the real estate agent inspected the premises before occupancy nothing appeared wrong in the area of the collapse and that heavy furniture was moved across the area when she occupied the premises a few days thereafter without any indication of a defective condition. She further explained that the repairs to the front porch, as covered by the lease, were intended for another area of the front porch and that no repairs were contemplated in the area of the collapse, because "it didn't look like it had to." The collapse occurred five days after the lease became effective, at which time no repairs had been made to the front porch. She also testified that to locate the defective condition of the porch in the area of the collapse one had to go through the house, through the basement, and crawl under the porch, and that she never made such an inspection.
The defendant landlord moved for summary judgment in his favor, and appeals from the order overruling his motion.
Code § 105-401, defining the duty of an owner or occupier of land to keep the premises safe, is not applicable to one who has parted with possession and the right of possession under a rental contract, and his liability is as prescribed by Code § 61-112. Augusta-Aiken R. c. Corp. v. Hafer, 21 Ga. App. 246 (1) ( 94 S.E. 252); Edwards v. Lassiter, 67 Ga. App. 368 (1) ( 20 S.E.2d 451). The duty of a landlord to keep the premises in repair, under Code § 61-111, and his liability arising from failure to keep the premises in repair, under Code § 61-112, may be limited as between the parties by a lease containing contrary stipulations. Lumpkin v. Provident Loan Society, 15 Ga. App. 816 (1) ( 84 S.E. 216); Valdes Hotel Co. v. Ferrell, 17 Ga. App. 93 (4) ( 86 S.E. 333); Bullard v. Asa G. Candler, Inc., 32 Ga. App. 187 ( 122 S.E. 813); Plaza Hotel Co. v. Fine Products Corp., 87 Ga. App. 460, 462 ( 74 S.E.2d 372); Desverges v. Marchant, 18 Ga. App. 248 (1) ( 89 S.E. 221). Even in the absence of the duty of inspection under the terms of a contract a landlord is ordinarily under no duty to inspect the premises while the tenant is in possession, in order to keep informed of the condition, where the tenant is entitled to and has the exclusive use and possession. Adams v. Klasing, 20 Ga. App. 203 (2) ( 92 S.E. 960); Crossgrove v. Atlantic C. L. R. Co., 30 Ga. App. 462 (2a) ( 118 S.E. 694); Sutton v. Murray, 49 Ga. App. 130 (1) ( 174 S.E. 174); Ross v. Jackson, 123 Ga. 657, 658 ( 51 S.E. 578). "Notice of a defect given by the tenant to the landlord charges the latter with notice only of such other defects as might reasonably be discovered on an inspection to repair the defect of which notice is given. Notice of separate and independent patent defects, in no way connected with a latent defect which is alleged to have occasioned the injury sued for, is not constructive notice of the latter defect. Such notice does not place on the landlord the duty of inspection to discover the latent defect. Godard v. Peavy, 32 Ga. App. 121 ( 122 S.E. 634); Hendrick v. Muse, 48 Ga. App. 295 ( 172 S.E. 661)." Cone v. Lawhon, 61 Ga. App. 797, 800 ( 7 S.E.2d 597). "Nor is the landlord liable for injuries to the tenant on account of latent defects existing at the time of the lease, which he might have discovered by an inspection not required of him by law, unless he actually knew, or by the exercise of ordinary care might otherwise have known, of their existence. McGee v. Hardacre, 27 Ga. App. 106 ( 107 S.E. 563)." Godard v. Peavy, 32 Ga. App. 121, supra.
Applying the foregoing well-settled principles of law to the facts of the present case, and considering the undisputed provisions of the lease vesting control in the tenant and relieving the defendant landlord of the duty of inspection, and the undisputed testimony of the plaintiff tenant specifying that repairs were contemplated only for known defects, not including the area of the porch which collapsed, and that the defective condition was not apparent and was discoverable only by an inspection by entry through the house and basement to the underside of the porch, the evidence demanded a judgment for the defendant landlord, and the trial judge erred in overruling his motion for summary judgment.
Judgment reversed. Deen and Quillian, JJ., concur.