Barnes v. Thomas

• Decision Date: 20 September 1945
• Docket Number: 30867,30868.
• Citation: 35 S.E.2d 364,72 Ga.App. 827
• Parties: BARNES v. THOMAS. THOMAS v. BARNES.
• Court: Georgia Court of Appeals

35 S.E.2d 364

72 Ga.App. 827

BARNES v. THOMAS.

THOMAS v. BARNES.

Nos. 30867, 30868.

Court of Appeals of Georgia, Division No. 1.

September 20, 1945

Syllabus by the Court.

1. Where paragraph 13(b) of the petition alleged that the landlord 'knew, or by the exercise of ordinary care would have known that, regardless of every care exercised by the occupant and tenant of said store, minute slippery substances would find their way onto said glazed-tile entrance and increase its hazard to life and limb of the invitees of said store,' it was not erroneous, on demurrer, to strike this paragraph on the ground that 'the allegation therein is wholly irrelevant and immaterial, and fails to allege any act of negligence on the part of defendant, because nowhere in said petition is it alleged that there were minute slippery substances on said tile entrance, and nowhere is it alleged that plaintiff's injury resulted from the increased hazard of minute slippery substances on said tile entrance.'

2. It was not reversible error to strike the allegations in the petition that were superfluous and immaterial, and that might tend to prejudice the minds of the jury.

3. 'Unless the landlord retains some control, or right of control, or assumes control, over the premises, he is ordinarily under no duty to inspect their condition while the tenant remains in possession, and is not chargeable with liability for a defective construction not made by him or under his direction, or for a failure to make repairs, unless and until he is given notice or obtains actual knowledge of the condition, or on his own initiative assumes to remedy or repair the defect.' Dobbs v. Noble, 55 Ga.App 201, 203, 189 S.E. 694.

4. Under the pleading and the evidence, it was not reversible error, as being harmful to the plaintiff, to charge the Code, § 61-112, and, immediately following, to charge section 105-401.

5. The excerpts from the charge complained of in special ground 2 were correct trinciples of law, and it can not be reasonably presumed, from a consideration of the charge as a whole, that the excerpts were misleading to the jury to the prejudice of the plaintiff.

6. 'The general rule is that in the trial of issues witnesses must testify as to facts only, and not as to their opinion deduced from facts, the latter being left as a proper function for the jury.' Metropolitan Life Ins. Co. v Saul, 189 Ga. 1, 4, 5 S.E.2d 214.

7. The exceptions as well as the general rule are stated in the Code, § 38-1708, as follows: 'Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief giving his reasons therefor; but if the issue shall be as to the existence of a fact, the opinions of witnesses, generally, shall be inadmissible.'

8. 'Opinions, even expert opinions, are allowed by way of exception to the general rule that a witness is to give facts observed, but not his conclusions from them, and they are to be allowed only when there is real helpfulness or a necessity to resort to them.'

9. Where, as here, the subject under investigation is whether the entrance to a store building was dangerous, and it is possible for the jury to take the same elements and constituent factors which guide the witnesses to their conclusion, and from them alone make an equally intelligent judgment of their own, independently of the opinion of others as to whether the entrance was dangerous, it is not error for the judge to rule out the testimony of the witnesses that the entrance was dangerous.

10. The verdict for the defendant being affirmed, it is not necessary to pass upon the questions raised by his cross-bill.

Amanda Barnes brought this action against Naef Thomas for injuries sustained while she was an invitee in the store of G. E. Lott, the tenant and occupier of the building owned by Thomas, the landlord. That part of the store wherein the injury occurred is described as follows: 'The front entrance to said building rises on an incline of about five inches after leaving the concrete sidewalk level and up to attaining the level of the floor of said building at a point about two feet from the east side of the sidewalk; said front entrance being about ten feet north and south on its outer or west line abutting the east edge of the sidewalk, and about eight feet north and south on its inner or east line abutting the west edge of the floor of said building. The entire entrance is floored with small glazed tile.' The tenant, who is a kinsman of the plaintiff, and who was not being sued in the present action, was sworn as a witness for her. His testimony, as it related to the question of whether the landlord, the defendant, had fully parted with his possession and right of possession, and as to the character of the entrance, was that the original front of the store had been removed by him subsequently to the time he had rented it and built a new front; and in that connection he testified that this change was made with the consent, and under the direction of the owner of the building. However, the witness further testified as follows: 'It is a tile entrance, a sloping front. I haven't measured it and I don't know the distance of the incline, but I know it is a slope there. I paid for the entrance being remodeled and reconstructed. I paid for it wholly but I was allowed a consideration of some insurance money, fifty-five dollars, on some broken vitrolite that was around the old front; I was allowed that, or given that, by Mr. Thomas to help defray the expense. As to whether or not I explained how it was to be fixed, and discussed it with Mr. Thomas, the best I remember, I had to get his permission and tell him what was going to be done, because I had no authority to get it done without his permission, I didn't own the building. Q. 'Did you have any right to tile that front out there or is it a part of the building?' A. 'It is a part of the building.'' He further testified: 'While I was in there, since the remodeling and at the time of the remodeling, I was a tenant of Mr. Thomas. I had exclusive possession of the store and the building. He had nothing to do with the operation of my business. I was in exclusive possession. The only thing I do is pay the rent.' The testimony as to the alleged defective construction of the front entrance in question was that 'it was a tile entrance, a slippery front;' that several people had slipped on it and only one had fallen, and she fell only as far as her knees; that the plaintiff, on two other occasions, at different times and places, had slipped and fallen on the sidewalk--once on account of some foreign substance (peeling), and once because her foot had struck a root. The jury found for the defendant, the plaintiff's motion for a new trial was overruled, and she excepted.

M. D. Dickerson, D. C. Sapp, and Marshall Ewing, all of Douglas, for plaintiff in error.

Wilson, Bennett, Pedrick & Bennett, of Waycross, and Mingledorff & Roberts, of Donglas, for defendant in error.

MacINTYRE, Judge.

1. The petition alleges, in part, that the plaintiff 'has been bedridden since July 1st, 1944; that she suffers at all times from numbness of all members of the left side of her body that, on [her] trying to sit up, said numbness, after from ten to fifteen minutes in a sitting position, becomes paralytic in intensity; that as the result of said injuries sustained on July 1st, 1944, [she] has lost the use of her body and has totally and permanently lost her ability to work at any gainful occupation; that at the time of the filing of this suit [she] could walk from her bed to a chair in her home only by help and support from members of her family; that she suffers now and will continue to suffer intense paid and agony on account of the injuries sustained in said fall; that throughout the remainder of her life she will be permanently and totally unable to carry on her normal life and activities as a result of said injuries; that, on account of such continuing condition, she will be subjected to a life of embarassment, pain, and suffering; that, * * * during the remainder of her life, [she] will be subjected to embarrassment because of the inability to use her body and its members in a natural and normal manner, and suffers and will continue to suffer, mental pain and anguish as a result of such disability; that [her] earnings, prior to July 1, 1944, were twenty-two ($22.00) dollars per week, she being engaged as a saleslady at Kraft's Store in Douglas, Georgia; that her earning power, since July 1, 1944, has been, now is, and will continue to be nothing, on account of the injuries herein complained of, which are permanent, and, so far as ability to work is concerned, are totally incapacitating and disabling, and she has become, on account of said injuries, a charge on her children.' The petition also alleges, in paragraph 13(b), that 'he [Naef Thomas] knew, or by the exercise of ordinary care would have known, that, regardless of every care exercised by the occupant and tenant of said store, minute slippery substances would find their way onto said glazed tile entrance and increase its hazard to life and limb of the invitees of said store.' The defendant specially demurred to and moved to strike this paragraph, on the ground that 'the allegation therein is wholly irrelevant and immaterial, and fails to allege any act of negligence on the part of defendant, because nowhere in said petition is it alleged that there were minute slippery substances on said tile entrance, and nowhere is it alleged that plaintiff's injury resulted from the increased hazard of minute slippery substances on said tile entrance.' The court did not err in striking paragraph 13(b).

2. The defendant specially...