Gledhill v. Harvey, 25853

• Decision Date: 22 January 1937
• Docket Number: No. 25853,25853
• Citation: 55 Ga.App. 322,190 S.E. 61
• Parties: GLEDHILL . v. HARVEY.
• Court: Georgia Court of Appeals

55 Ga.App. 322

190 S.E. 61

GLEDHILL .

v.HARVEY.

No. 25853

Court of Appeals of Georgia, Division No. 1.

Jan. 22, 1937

.

.

Rehearing Denied March 3, 1937.

Syllabus by the Court.

1. A landlord is not an insurer of the safety of persons lawfully on the premises, but is responsible for injuries to such a person who receives injury thereon and who is in the exercise of due care, if the injury arises because of his failure to repair defects of which he knows or in the exercise of due care ought to know. Where a landlord receives notice from a tenant of a defect in the premises, it becomes his duty to exercise ordinary care to inspect and repair the defect within a reasonable time. "Notice of a defect, given by the tenant to the landlord, charges the landlord with notice of any and all other defects such as might reasonably have been discovered by a compliance with such a request for repairs." Notice of a separate and independent patent defect, in no way connected with the latent defect, which is alleged to have caused the injury, cannot be taken as constructive notice of the latter as devolving on the landlord any duty of inspection. If both defects be in and about the same part of the premises, such as the flooring of the back porch, and are not entirely disconnected, and it may reasonably be said that the latent defect might reasonably have been discovered by the use of ordinary care in complying with such request for repair of the patent defect, the landlord will be held to have notice of such latent defect. The evidence supports the verdict.

2. In the present case a charge to the jury in the language of Code, §§ 61-111, 61-112, that "the 'landlord must keep the premises in repair' [Code, § 61-111], and 'is responsible to others for damages arising from defective construction or for damages from failure to keep the premises in repair [Code, § 61-112], ' " when taken in connection with other parts of the charge to the effect that the landlord is chargeable only with the exercise of ordinary care after notice of a defect in the premises, was not erroneous as placing on the landlord a higher duty than required by law.

(a) That part of the above charge as to the responsibility of the landlord for damages "arising from defective construction" of the premises was not adjusted to the pleadings and evidence, but was harmless, for the reason that (1) there was no evidence or any contention made by plaintiff, by pleadings or otherwise, that she had sustained injury because of the defective construction of the premises, and under the pleadings, the evidence, the issues on the trial, and the charge of the judge as a whole, there can be no doubt that the jury did not consider it in making a verdict; (2) the judge instructed the jury that plaintiff could recover only on the grounds of negligence set out in her petition, which related solely to the defective condition of the premises and not to any faulty construction of the premises.

(b) A statement to the judge by counsel for defendant, at the close of the charge, of the inapplicability of this part of the charge to the facts of the case, and a further charge by the court, "of course, you understand the question of construction of the house originally has nothing to do with this case, " must have been construed by the jury as eliminating that question from the case.

3. "When the landlord is notified that the premises are out of repair, it becomes his duty to inspect and investigate in order that he make such repairs as the safety of the tenant requires. When, if, and after, such notice has been given, the landlord fails within a reasonable time to make the repairs, he is chargeable with notice of all defects that a proper inspection would have discovered." This charge was not erroneous when taken in connection with other portions of the charge as placing a higher burden on the landlord than required by law. Nor was it erroneous because there was no evidence that the landlord "failed at any time to make any repairs of the necessity for which he had been notified."

4. A narrative reading to the jury of the contentions of the plaintiff as set out in the petition is not error, although some of the contentions be unsupported by evidence.

5. The remaining special assignments of error are without merit. The court did not err in overruling the motion for new trial.

Error from City Court of Macon; Earl W. Butler, Judge.

Suit by Mrs. E. D. Harvey against A. C. Gledhill. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed.

J. E. Feagin, of Atlanta, for plaintiff in error.

Edward F. Taylor, of Macon, for defendant in error.

GUERRY, Judge.

1. "A landlord is not an insurer, but he is under a legal duty to keep the rented premises in repair, and is liable in damages to a person who receives injury while lawfully upon the premises and who is in the exercise of due care, if the injury arises * * * because of his failure to repair defects of which he knows, or in the exercise of reasonable diligence ought to know." Ross v. Jackson, 123 Ga. 657, 51 S.E. 578. It is true that he is not liable to a tenant for injuries "arising from a patent defect in the premises, existing at the time of the lease, and of which the tenant knew, or had means of knowing equal to those of the landlord, unless the rent contract stipulates to the contrary." McGee v. Hardacre, 27 Ga.App. 106, 107 S.E. 563, 564, and cit. Nor is he liable for injuries to a tenant arising from "latent defects unknown to the tenant, existing at the time of the lease, unless the landlord actually knew, or by the exercise of ordinary care on his part might have known, of their previous existence." McGee v. Hardacre, supra. It is further true that no duty of inspection rests on the landlord to discover defects arising subsequent to the time of the lease. Godard v. Peavy, 32 Ga.App. 121, 122 S.E. 634. However, it is equally true that when he receives notice from a tenant of a defect in the premises, it becomes his duty to exercise ordinary care to inspect and repair the defect within a reasonable time, and on a failure so to do he is liable in damages to his tenant injured because of such defect, if the injured party was in the exercise of ordinary care. With regard to notice of defects, two distinct rules have been laid down: (1) "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 such a request for repairs." Godard v. Peavy, 32 Ga.App. 121, 122 S.E. 634, supra; Stack v. Harris, 111 Ga. 149, 36 S.E. 615. (2) Notice of a separate and independent patent defect, in no way connected with the latent defect, which is alleged to have occasioned the injury, cannot be taken as constructive notice of the latter as devolving on the landlord any duty of inspection. Godard v. Peavy, supra.

While counsel for plaintiff in error (defendant in the court below) contends earnestly in this court that the present case is an example of the latter, in that the tenant (plaintiff) gave notice to the landlord (defendant) of a patent defect, to...