Carmack v. Oglethorpe Co.

• Decision Date: 10 October 1966
• Docket Number: No. 1,No. 42273,42273,1
• Citation: 151 S.E.2d 799,114 Ga.App. 512
• Parties: Mae CARMACK v. The OGLETHORPE COMPANY
• Court: Georgia Court of Appeals

Page 799

151 S.E.2d 799

114 Ga.App. 512

Mae CARMACK v. The OGLETHORPE COMPANY.

No. 42273.

Court of Appeals of Georgia, Division No. 1.

Oct. 10, 1966.

Rehearing Denied Oct. 26, 1966.

Syllabus by the Court

1. Untimely filing of the transcript of evidence is not a ground for dismissal of the appeal under the Appellate Practice Act of 1965 (Ga.L.1965, p. 18; Code Ann., Title 6) as amended. The motion to dismiss is denied.

2. In this action by a tenant against her landlord for injuries caused by a defective stairway, the evidence raised jury questions, including contributory negligence; therefore, the grant of a nonsuit was error.

Mrs. Mae Carmack brought an action against the Olgethorpe Company for injuries alegedly sustained due to defective premises constructed and rented to the plaintiff by the defendant. The petition alleged substantially: that on June 2, 1962, plaintiff and her husband rented the two-story apartment; that defendant retained in the lease the right of inspecting the apartment and kept a maintenance crew to keep its apartments in a tenantable condition; that the stairway makes a ninety-degrees turn, at which point there is a triangular landing; that at approximately 1:30 a.m., June 16, 1962, the plaintiff was descending the stairway; that, as she stepped upon the landing, one of the planks therein, which was completely unsecured or unfastened at one end, gave way, causing her to trip and completely lose her balance, throwing her down the remaining stairs, causing her alleged injuries; that said defective condition was known to the defendant at the time it rented said premises to plaintiff or in the exercise of ordinary care it should have known thereof by making an adequate inspection, which it had a right and a duty to do. The specifications of negligence were: (a) In negligently constructing said landing or step in the beginning so as not to adequately secure said flooring; (b) In failing to repair said defective condition within a reasonable time; (c) In renting said premises to plaintiff in said latent defective condition; (d) In failing to make regular and systematic inspections of the premises in order to determine their condition and repair any defects. At the conclusion of the plaintiff's evidence, the court sustained the defendant's motion for nonsuit, from which judgment the plaintiff appeals.

E. T. Hendon, Jr., Decatur, for appellant.

Spearman, Bynum & Goodwin, W. L. Spearman, Atlanta, B. Hugh Burgess, Decatur, for appellee.

FELTON, Chief Judge.

1. The notice of appeal was filed on October 18, 1965, the transcript of evidence was filed in the trial court on July 18, 1966, and the case was docketed in this court on July 19, 1966. Appellee filed a motion to dismiss the appeal on the ground that the transcript of evidence was not filed within 30 days after the filing of the notice of appeal, as required by Code Ann., § 6-806 (Ga.L.1965, pp. 18, 26, Appellate Practice Act of 1965, § 11).

Under the provisions of Code § 6-804 (Ga.L.1965, pp. 18, 21) the time for filing the transcript of evidence may be extended by the trial judge or any justice or judge of the appellate court to which the appeal is taken (such extensions will not be granted, however by either appellate court. Rule 7 of the Supreme Court; Rule 12 of the Court of Appeals), without motion or notice to the other party. Code § 6-806 (Ga.L.1965, pp. 18, 26) goes further by providing that '* * * (i)n all cases, it shall be the duty of the trial judge to grant such extensions of time as may be necessary to enable the court reporter to complete his transcript of evidence and proceedings.' (Emphasis supplied) Code § 6-808 (Ga.L.1965, pp. 18, 28; Ga.L.1966, pp. 493, 497) provides in part as follows: 'If for any reason the clerk is unable to transmit the record and transcript within the time hereinbefore required, or when an extension of time was obtained under section 6 (Code § 6-804) hereof, he shall state in his certificate the cause of the delay, and the appeal shall not be dismissed.' (Emphasis supplied.)

The record in the present case does not contain any motion or application for an extension of time, or any court order granting such extension, or any statement in the clerk's certificate of the cause of the delay. Although the language of § 6-808 is mandatory as to such certificate, the direction that the appeal shall not be dismissed is not necessarily conditioned upon such statement being included, it being provided that the cause of the delay is to be stated and the appeal shall not be dismissed. Such errors are amendable defects. Harper v. Green, 113 Ga.App. 557(2), 149 S.E.2d 163. This is confirmed by the fact that the three specified grounds for dismissal of appeals do not include the present situation. The cases dismissing appeals for failure to timely file the enumeration of errors are not a basis for dismissal; this ground was removed by amendment, Ga.L.1966, pp. 493, 500. The second sentence of Code § 6-809(b) is sufficiently inclusive and specific to place the burden on the appellate courts to generally take whatever action is necessary to avoid dismissals on procedural grounds. Since the transcript of evidence is now before this court, making unnecessary any action by this court to perfect the appeal and record, and since the Act does not provide for dismissal for late filing of the transcript of evidence, the appeal will be decided on its merits. The motion to dismiss is denied.

2. The basis of the nonsuit was that the plaintiff had continued to use the stairway with actual knowledge of its dangerous condition. 'Where a tenant is injured as a result of defects in a part of the rented premises which he continued to use after knowledge that such part of the premises was in a defective and unsafe condition, the failure on the part of the tenant to exercise ordinary care for his own safety by refraining from the use of such portion of the premises and thus avoiding the consequences to himself caused by the landlord's negligence in failing to repair will be held to be the sole proximate cause of the injuries sustained. (citations).' (Emphasis supplied.) Taylor v. Boyce, 105 Ga.App. 434(1), 124 S.E.2d 647. 'We should not confuse 'notice of defects' with 'knowledge of danger.' Even after the tenant may have notice of defects in the premises, she may yet continue to use the premises, including the part of the premises which are defective, if she does not know they are dangerous or has no reasonable ground to suspect such to be the fact. Her use of them could not be legally considered negligent.' Mathis v. Gazan, 51 Ga.App. 805, 808, 181 S.E. 503,...