Opinion
35213.
DECIDED JULY 9, 1954.
Action for damages. Before Judge Manning. Cobb Superior Court. March 26, 1954.
Samuel L. Eplan, Frank D. Holcomb, for plaintiff in error.
C. Eugene Gilbert, Wendell J. Helton, contra.
1. The contentions of the defendant in the trial court on overruling the demurrers are not sustainable under the allegations of this petition and under the law.
2. The petition sets forth facts essential to carry the case to trial on determination of the facts alleged.
DECIDED JULY 9, 1954.
Mrs. Clarence E. Palmer (defendant in error here), whom we shall call the plaintiff, brought an action in the Superior Court of Cobb County against Mrs. Lula Worsham (plaintiff in error here), whom we shall call the defendant.
The original petition alleges substantially: (1) jurisdiction of the court; (2) the amount of damages; (3) the ownership of the described property involved, which the defendant rented to the plaintiff on August 11, 1951, under a tenant-at-will agreement; (4) (there is no paragraph 4); (5) that, at the time the defendant rented the premises to the plaintiff and her husband, the defendant stated that there were repairs to the back porch which the defendant would have made after the plaintiff and her husband moved into the house; that, on one or two other occasions, the defendant repeated that she would have the repairs made immediately; that up to August 3, 1952, the repairs had not been made; (6) that on the date of the lease the defendant knew that the premises needed repairs and knew that part of the porch needed repairs; that the plaintiff did not know whether the repairs were needed, and that the defendant negligently failed to have the repairs made after promising the plaintiff and her husband that the defendant would make the repairs immediately after the plaintiff moved in; and that the defendant knew in fact that the repairs were needed at the time she made promises to repair.
Paragraphs 7, 8, 9, 10, and 11 read:
"7. Petitioner shows that under date of Aug. 3rd, 1952, she went out on the back porch for the purpose of putting some garbage in the garbage can, which was placed at the edge of said porch. That as she got almost to the garbage can a plank in the porch broke through under her foot and therefore Mrs. Clarence Palmer's foot went in the hole which had broken, causing her to fall off of the edge of the porch to the ground, approximately six (6) feet from the top of the porch where she was before the fall.
"8. Petitioner shows that at the time she went on the porch to put the said garbage in the can that the floor on the top did appear to be sound and that the particular board that broke looked like the other parts of the porch, and she did not have any notice or thing which would indicate to her that it was not safe for her to walk out to the garbage can on the said back porch.
"9. Petitioner says that the floor at the place where the plank broke was in a decayed condition underneath and that the said landlord (owner) knew of this condition yet she allowed the same to go for over 12 months in a state of disrepair. That had the defendant used ordinary care the said petitioner would not have been injured.
"10. Petitioner says that had the said landlord (owner) sent the carpenter or repairman out as she had stated on several occasions she would do; the said repairman would have repaired the floor and the said breaking in of the porch under the weight of petitioner walking thereon would not have occurred and she would not have been injured. Petitioner further says that it was a duty of the said (owner) landlord to have turned the premises over to petitioner and her husband in a reasonably safe condition and suited for the purpose for which she rented same.
"11. Petitioner shows that it was the legal duty of the defendant to have made or had made the repairs of which she had knowledge and of which she stated needed repairs."
Paragraph 12 reads in part as follows: "Petitioner shows that as a result of the floor breaking through and the throwing of Mrs. Clarence off the back porch, she was severely, painfully and permanently injured and that she will suffer for the balance of her life and will not recover from the injury sustained by the negligence of defendant." The remainder of paragraph 12 and all of paragraph 13 enumerate in detail the treatment which the plaintiff underwent at the hospital as a result of the injuries which she received when she was thrown from the porch in the manner above alleged.
Paragraph 14 alleges that the defendant was negligent, and therefore the direct cause of the plaintiff being injured. The acts of negligence set forth in paragraph 14 are:
"a. Defendant was negligent in failing to surrender the premises to petitioner in safe condition and for the purpose of use free from the dangerous latent defects.
"b. Defendant was negligent in failing to make repairs to porch which she herself knew to need repair.
"c. That the defendant was negligent in putting off repairing the porch for a period of more than one year.
"d. Petitioner says that the defendant was negligent in failing to put petitioner on notice of the latent and decayed condition of the porch from the knowledge of which she had.
"e. That the defendant was negligent in failing to tell petitioner and her husband of the bad condition of the porch and negligent in failing to allow petitioner and her husband the right to have the porch repaired and to deduct same from the monthly rent.
"f. That the defendant was negligent in failing to repair the premises within a reasonable time after she had knowledge of the defective porch.
"g. That the defendant was negligent in renting premises which were not safe for purpose of which they were rented."
Paragraph 15 alleges that the above acts of negligence were the sole and proximate cause of the plaintiff's injuries, and were the direct cause of the floor breaking through as set out above and the direct cause of the injuries sustained by the plaintiff, and the direct cause of the pain and suffering she received.
Paragraph 16 alleges that the plaintiff was free from negligence and could not have avoided the injuries by ordinary care; that she was free from fault; that, had she known that the porch was in an unsafe condition, she would not have used the porch; that, had the defendant told the plaintiff or put her on notice that the porch was unsafe to use, she would not have used the porch; that she would have had the same repaired; and that, because such damage was not noticeable on the surface, she relied on the discretion of the defendant, and that the negligence of the defendant is and was negligence per se; that, as a result of the gross negligence of the defendant and from the injuries the plaintiff had sustained, the plaintiff would be incapacitated for the balance of her life and would suffer pain for the balance of her days.
The defendant filed general and special demurrers to the petition, as follows: (1) The plaintiff demurs generally to the petition, in that it does not set out a cause of action.
The plaintiff demurs specially to the petition, as follows: "2. Defendant demurs specially to Paragraph 5 on the grounds that said paragraph stated that `the said defendant did state that there were certain repairs to the back porch, which the (owner) would have done after petitioner and her husband had moved into the said house,' upon the grounds that said allegation does not state to whom said statement was made and does not state what repairs the defendant allegedly had agreed to make to said back porch.
"3. Defendant demurs to Paragraph 6 of plaintiff's petition on the grounds that said paragraph states that the owner `knew that the said premises needed repair and knew what part of the porch needed repair,' upon the grounds that said allegation is a conclusion of the pleader and neither in said paragraph or in any other paragraph of said petition is there any allegation that shows that the defendant had any information as to the alleged decayed board through which the plaintiff alleges to have fallen, nor are there any allegations in said paragraph or in any other paragraph of said petition showing how and in what manner the defendant knew of said alleged decayed board.
"4. Defendant further demurs to Paragraph 6 of plaintiff's petition on the grounds that said petition sets out that `petitioner did not know where the repairs were needed and further says that said defendant negligently failed to have the repairs made' on the grounds that same is contradictory in that plaintiff states in said allegation that she did not know where the repairs were needed but said plaintiff has alleged in the previous paragraph that the defendant told her (plaintiff) that certain repairs were to be made. For these reasons your defendant moves that all of said allegations in said paragraph as quoted above be stricken from plaintiff's petition.
"5. Defendant demurs specially to the allegation in Paragraph 9 of plaintiff's petition which states `that the said landlord (owner) knew of this condition' on the grounds that same is a conclusion of the pleader and there are no allegations which set out in what manner and through what means defendant knew of the alleged decayed condition of the plank.
"6. Your defendant demurs specially to Paragraph 10 of plaintiff's petition on the grounds that the allegations therein are contradictory in that said paragraph states that had the owner sent a carpenter or repairman out to repair said porch that the repairman would have repaired the alleged decayed planks, whereas in Paragraph 5 of plaintiff's petition the plaintiff alleges that the defendant stated to her that she would have certain repairs to the back porch. Your defendant demurs to the allegations in Paragraph 10 on the grounds that the allegations in Paragraph 10 are in conflict with the allegations in Paragraph 5 for the reason that under said allegations the plaintiff knew before the accident, if the defendant knew of the decayed plank, that the plaintiff also knew of same and for these reasons and because of the knowledge conveyed to the plaintiff, plaintiff's allegations would preclude her from recovery and therefore the allegations as pleaded in Paragraph 10 are subject to demurrer.
"7. Defendant demurs specially to Paragraph 11 of plaintiff's petition on the grounds that the allegations that it was the `legal duty of the defendant' to repair is a conclusion of the pleader and for these reasons should be stricken."
On December 3, 1953, the demurrer of the plaintiff came on for hearing, and the court sustained the general demurrer and dismissed the petition. The plaintiff filed an application asking for the court to vacate the order on the general demurrer dismissing the petition and permit the plaintiff to be heard. This application alleged that neither the plaintiff nor her attorney had any notice of the hearing on the general demurrer. The court set January 9, 1954, as the date for hearing on the application. After notice to all parties and after hearing from all parties, the court on February 9, 1954, sustained the general demurrer subject to ten days' leave to amend. On February 18, 1954, the plaintiff added, following paragraph 5 of her original petition, amendments to be known as 5-a and 5-b, as follows:
"5-a. The defendant, landlord, knew that the premises, and in particular the porch of the premises, was not in a state of repair, and retained a qualified possession of the rented premises by promising to supervise and have made said necessary repairs on the porch and premises.
"5-b. The defendant had actual knowledge of the defective condition of the premises, and in particular the porch, and had the premises been repaired plaintiff alleges that the defendant could have and would have by the exercise of ordinary care discovered the dangerous condition of the planks in porch of premises, which broke as alleged."
She added, following paragraph 6 of her original petition, an amendment to be known as 6-a, as follows:
"6-a. The porch and house did not appear to the plaintiff to be dangerous or in a dangerous condition and the condition of the porch constituted a latent defect unknown to petitioner."
The amendments were allowed. The defendant renewed her general and special demurrers to the petition as amended, alleging that the amendments filed by the plaintiff on February 18, 1954, added nothing new to the petition as filed by the plaintiff; that no new facts were pleaded in the amendment; and that the plaintiff had not amended her petition in such a manner as to add sufficient new facts to withstand the demurrers as originally filed by the defendant, or to meet the order sustaining the said general demurrer. After hearing, the court on March 26, 1954, overruled the demurrer to the petition as amended. On this judgment, overruling the renewed general demurrer to the amended petition, the defendant assigns error here.
1. The defendant contends that the court erred in not sustaining the general demurrer to the original petition as amended, because the amendment filed did not add any new facts or any sufficient facts, construed with the original petition, to set out a cause of action. As to this phase of the defendant's contention, counsel calls attention to the following decisions: Jones v. Butler, 191 Ga. 126 ( 12 S.E.2d 326); Wood v. Southern Trust Co., 12 Ga. App. 155 ( 76 S.E. 991); Baker v. City of Atlanta, 22 Ga. App. 483 ( 96 S.E. 332); Pasco Flour Mills Co. v. City Supply Co., 23 Ga. App. 95 ( 97 S.E. 558); Garmany v. Henson, 30 Ga. App. 100 ( 117 S.E. 107); Jenkins v. Atlanta Police Relief Assn., 54 Ga. App. 209 ( 187 S.E. 597); Lavenden v. Haseman, 157 Ga. 275 ( 121 S.E. 646).
The defendant further calls our attention to Weyman v. Maynard, 24 Ga. App. 94 ( 100 S.E. 25), in which this court held that, if prior to the tenant's injuries, dangerous defects in the premises were actually known to the tenant or were so plainly observable that the tenant must necessarily have had equal opportunity with the landlord to discover and understand the defects, the landlord would not be liable for injuries sustained as a result of such defects. Kleinberg v. Lyons, 39 Ga. App. 774 ( 148 S.E. 535) and Mendel v. Lyons, 39 Ga. App. 783 ( 148 S.E. 540), held that, if the tenant knows of dangerous conditions of the premises, and continues to use same, recovery for injuries will not lie. See Finley v. Williams, 45 Ga. App. 863 ( 166 S.E. 265), to the same effect. In King v. Investors Mortgage c. Co., 51 Ga. App. 235 (1) ( 179 S.E. 910), this court held that the landlord is not liable if the tenant knows as much about the premises as the landlord. Our attention is called also to Cone v. Lawhon, 61 Ga. App. 797 (3) ( 7 S.E.2d 597), in which this court held simply that notice or knowledge by a landlord of separate and independent patent defects in no way connected with latent defects, which latent defects allegedly caused injuries to the tenant, could not be taken as conclusive notice to the landlord of latent defects or as devolving upon the landlord any duty of inspection. Those are not the facts as alleged in the amended petition. Under the allegations of the instant petition, the patent defects were connected with the latent defects which allegedly occasioned injuries to the plaintiff. The defendant calls our attention to Waddell v. Wofford Oil Co., 84 Ga. App. 617 ( 66 S.E.2d 806). In that case the court held that the landlord is not liable for patent defects which are known also or which the tenant had means of knowing equal to the landlord, at the time the premises were rented to the tenant. The allegations of fact in that case are not of sufficient similarity to the allegations of fact in the instant case to render the landlord in the instant case not liable. The defendant calls our attention to Ween v. Saul, 88 Ga. App. 299 ( 76 S.E.2d 525). It will be noticed that in that case the court held that the plaintiff was entitled to proceed under her petition where she knew that a certain portion of the plaster was loose and she moved her bed to another portion of the same room where the plaster appeared to be sound. The trial court sustained a demurrer to her petition, and this court reversed the trial court. We do not think that the allegations of fact in that case support the contentions of the defendant in the instant case.
2. Again referring to Ween v. Saul, supra, this court held as follows: "The petitions in these cases being actions for damages resulting to a tenant from a defect in the premises of which the landlord had actual or constructive notice, stated causes of action and the trial court erred in sustaining the general demurrers and in dismissing the actions."
In Shattles v. Blanchard, 87 Ga. App. 15 (1) ( 73 S.E.2d 112), it was held: "The question of what is reasonable time for the performance of an act required to be performed upon `reasonable notice,' is usually, if not always to be determined by the character of the act contemplated, considered with its purposes and the attendant facts and circumstances. Accordingly, where, as here, the only means of ingress and egress from an apartment rented by the landlord is a set of outside steps, whether two days' notice of a defect in the steps is such reasonable notice as would raise a duty on the part of the landlord to repair same within such period of time is a jury question."
Headnote 2 of that same opinion held: "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 page 18 of that same opinion this court held: "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."
On page 16 of that same opinion this court held: "Notice of a defect given by the tenant to the landlord, charges the latter with notice of any and all other defects such as might reasonably have been discovered by a compliance with a request for repairs."
In Stack v. Harris, 111 Ga. 149 ( 36 S.E. 615), the Supreme Court held: "Though a landlord will not be liable in damages for injuries to a tenant resulting from the defective condition of a plank in the floor of the rented building, of which the landlord had no notice, a petition which alleges that the plaintiff, a tenant, was injured by reason of such a defect and that the landlord, the defendant, had notice of the `defective condition of the floor,' sufficiently alleges as against a general demurrer, that the defendant had notice of the defective condition of the plank."
See, in this connection, Shaddix v. Eberhart, 55 Ga. App. 498 ( 190 S.E. 408); Kimpson v. Wingo, 84 Ga. App. 189 ( 65 S.E.2d 837); Seal v. Stodghill, 44 Ga. App. 643 ( 162 S.E. 638); Marr v. Dieter, 27 Ga. App. 711 (2) ( 109 S.E. 532); MeYere v. Withers, 15 Ga. App. 688 ( 84 S.E. 163).
Under the allegations of this petition, the court did not err in overruling the general demurrer to the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur.