Bradshaw v. Crawford

• Citation: 49 S.E.2d 169,77 Ga.App. 441
• Decision Date: 16 July 1948
• Docket Number: 32084.
• Parties: BRADSHAW v. CRAWFORD.
• Court: United States Court of Appeals (Georgia)

49 S.E.2d 169

77 Ga.App. 441

BRADSHAW v. CRAWFORD.

No. 32084.

Court of Appeals of Georgia, Division No. 2.

July 16, 1948

Syllabus by the Court

1. The petition as finally amended was not subject to general demurrer.

2. While the rule is recognized that when a demurrer to a petition is sustained and the judgment thus entered is unexcepted to, the same becomes the law of the case, yet where the same order allows a specified time in which to amend the petition so as to cure the defects therein as pointed out by the demurrer or the petition shall stand dismissed, and within said period an amendment is filed which cures a part of the defects but fails to remedy others, and later, after the time for amendment has expired, another amendment is filed perfecting the petition, the case is re-opened for a fresh adjudication, and the judgment, as the law of the case, concludes only that the original petition was subject to the demurrer interposed to it.

The plaintiff in error, Gertrude Bradshow, hereinafter referred to as plaintiff, filed a petition in the Superior Court of Fulton County against the defendant in error, Sara L Crawrod, hereinafter referred to as defendant.

The trial court entered a judgment sustaining the general demurrer of the defendant to the petition of the plaintiff and allowing 15 days to amend and providing that on failure to amend the petition shall stand dismissed. Within the 15 day period the plaintiff amended but this amendment failed to meet the criticism of the first demurrer. It was also demurrable on other grounds. Thereafter the defendant interposed another demurrer to the petition and certain paragraphs and parts of paragraphs thereof, as amended. Thereafter and long after the expiration of the original 15 day period allowed the plaintiff in which to amend by the judgment of the trial court in his ruling on the first demurrer to the original petition, plaintiff had allowed and filed another amendment to her petition. A short time later the defendant filed a motion to strike this second amendment and dismiss the case. No ruling was had on this motion but the demurrer to the petition as first amended was heard, and the trial court entered judgment thereon as follows:

'The above case coming on to be heard on the demurrer filed by the defendant to plaintiff's petition as amended, and after hearing argument thereon, it is ordered that the general demurrer to plaintiff's petition as amended be and is hereby sustained and the above case is hereby dismissed.

'In making the above ruling I am constrained by the fact that the demurrer to the original petition was sustained by Judge Almond, with leave to amend. The amendment filed by plaintiff pursuant to such leave to amend failed to remedy the defects in the original petition and by reason of such failure the ruling of Judge Almond on the demurrer to the original petition became the law of the case, the plaintiff having filed no exception to such ruling.'

This judgment is assigned as error.

H Fred Gober, of Atlanta, for plaintiff in error.

W O. Wilson, of Atlanta, for defendant in error.

TOWNSEND, Judge. (after stating the foregoing facts).

It will be noted that the judgment of the trial court excepted to was the ruling on the second demurrer to the petition as first amended, and was made without consideration of the second amendment.

Counsel for plaintiff contends, first, that the petition as finally amended the second time sets out a cause of action against the defendant, and second, that plaintiff is entitled to have this amendment considered. Counsel for the defendant contends that since the trial court, in ruling on the first demurrer to the petition, allowed 15 days in which to amend or the petition would stand dismissed, and since the amendment filed within that period failed to meet the criticism of the first demurrer thus ruled upon, that this judgment became the law of the case, and that the petition stands automatically dismissed.

1. This is an action brought by a tenant against the landlord for personal injuries sustained by the plaintiff on account of a breach of the duty of the defendant to repair the rented premises.

Since the petition as finally amended alleges that the plaintiff and another tenant and the defendant entered into a contract on October, 1945, for the rental of the premises at $6 per month and that the defendant has received said sum from the plaintiff who has resided on said premises continuously since said time, the relationship of landlord and tenant is now sufficiently alleged. See Hill v. Liebman, Inc., 53 Ga.App. 462, 186 S.E. 431.

Also the petition as amended alleges that the back porch from which she fell was approximately 12 feet long from east to west and approximately 6 feet in width from north to south; that the only entrance thereto was from the kitchen through a door which opened approximately in the center of said porch; that at all times during her tenancy the northwest corner of said back porch covering an area of approximately 3 feet square was patently defective in that the flooring was visibly rotten, unsound, and unsafe; that plaintiff had given defendant notice of the patently defective condition of the porch and requested that it be repaired; that to repair the same it would be necessary to cross over the center of the porch approaching it from the doorway; that petitioner was careful not to walk on the patently defective part of the porch; that on an alleged date after notice of the patent defects she walked onto the back porch and the same gave way causing her to fall to the ground 18 feet below, injuring her in the manner alleged; that at the point where she was walking on the porch at the time she fell the same was latently defective of which she had no knowledge; that had the porch been repaired pursuant to notice at the point of its patent defects, the latent defects which caused plaintiff to fall and located within approximately 3 feet of the patent defects would in the exercise of ordinary care have been discovered. It is therefore a proper question for the determination of a jury as to whether or not the latent defects in this close proximity to the patent defects of which defendant had notice, in the exercise of ordinary care would have been discovered, had the premises been repaired by the defendant landlord. The petition as amended sets forth a cause of action (see Shaddix v. Eberhardt, 55 Ga.App. 498, 190 S.E. 408), provided the second amendment is properly to be considered a part of the petition.

2. The first demurrer to the petition was sustained on September 24 1947. In this order 15 days was allowed in which to amend or the petition would stand dismissed. On the 30th day of September an amendment, properly allowed, was filed, which however failed to cure all the defects of the original petition and was itself otherwise defective. Another demurrer was filed to the petition thus amended on October 8, 1947. No action was had thereon until April 16, 1948, on which date the judgment excepted to here sustaining this second demurrer was entered. In the meantime and on March 29, 1948, the second amendment perfecting the petition was allowed and filed. This latter amendment was not considered by the trial court for the reason set forth in his order hereinbefore quoted. The four grounds of the first demurrer, the sustaining of which the defendant contends became the law of the case, the judgment being unexcepted to, are as follows: '1--That no cause of action is set forth against this defendant is said petition. 2--The allegations of said petition do not show that the relation of landlord and tenant ever existed between the plaintiff and defendant in this case. The said petition does not show when any contract of rental was entered into, the duration of any contract of rental or the rate of rental, or any other allegations that any contract of rental was ever entered into between said plaintiff and defendant. 3--The said petition failing to set forth any contract of rental or that the relation of landlord and tenant ever existed between the parties in this case, the alleged notices of defective flooring in said premises consequently are insufficient to impose any obligation upon the defendant herein, or to show any ground of liability against said d...