King v. Smith

• Decision Date: 18 August 1933
• Docket Number: 22871.
• Parties: KING v. SMITH.
• Court: Georgia Court of Appeals

170 S.E. 546

47 Ga.App. 360

KING v. SMITH.

No. 22871.

Court of Appeals of Georgia, Second Division

August 18, 1933

Syllabus by Editorial Staff.

Where superior court's judgment remanding case was not brought up for review, and superior court affirmed judgment rendered on retrial, Court of Appeals was required to review judgment of affirmance without regard to superior court's previous judgment, where record failed to indicate legal principles involved therein.

Except where prohibited by statute, or where public duty is owed party may by valid contract release himself from liability to other party for particular injuries or damages and for ordinary negligence, without violating public policy (Civ Code 1910, § 10; Pen. Code 1910, § 5).

Landlord is not liable for tenant's injuries from patent defect in premises, existing at time of lease, of which tenant knew, or had means of knowing equal to those of landlord, unless contract stipulates to contrary.

Lessee could not recover for damages to furniture caused by escaping steam in so far as it resulted from readily observable defect in pipe valve in lessee's apartment.

Where lease, although requiring lessor to furnish heat and giving him right to enter premises to make repairs, contained provision exempting lessor from liability for damage to lessee's personal property from leaking steam pipe landlord held relieved from liability for damages from leaking steam pipe caused by ordinary negligence (Civ Code 1910, § 4268, par. 3).

To be "willful or wanton," conduct must evince willful intention to inflict injuries, or be so reckless or so charged with indifference to consequences as to justify finding wantonness equivalent in spirit to actual intent.

In lessee's suit for damages to furniture from escaping steam, evidence held insufficient to establish willful and wanton conduct of defendant authorizing recovery despite valid lease provision exempting landlord from liability for injuries from escaping steam.

In lessee's suit for injuries to furniture from escaping steam, charge that lease provision exempting landlord from liability for injuries from escaping steam would not discharge lessor's liability if lessee's property were damaged as direct result of lessor's negligence held erroneous as telling jury that exemption would not release lessor from liability for ordinary negligence.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Suit by T. J. Smith against A. R. King. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Reversed.

Statement of facts by JENKINS, Presiding Judge:

Smith, a tenant in an apartment house, sued King, his landlord, in the municipal court of Atlanta for damages to furniture and household effects, caused by steam, heat, and moisture escaping into his rooms through a loose and defective valve in a steam pipe, during his absence from the city. The petition alleged that the defendant and his agent, the janitor, although knowing of the observable defect in the piping, negligently, carelessly, wantonly, willfully, and intentionally heated up the furnace, and although thereafter observing steam, heat, and moisture escaping from the closed windows and doors of plaintiff's apartment, they negligently, carelessly, willfully, and wantonly failed and refused to enter his rooms and cut off the heat and preserve his property, for which he claims damages from "the carelessness, gross negligence, and wilfulness and wantonness of defendant." Under the evidence, the defect in the piping was a patent defect existing when the lease began. But the jury would have been authorized to find the defendant guilty of ordinary negligence through his janitor, in not stopping the furnace until the escape of the steam from the pipe could have been remedied. There was, however, no evidence to sustain the charges of willfulness and wantonness against the defendant or his janitor. It appears that the defendant himself went out of the city without any actual knowledge of the escape of the steam; that neither he nor the janitor had a key to the apartment of the plaintiff; that its windows were locked, and entrance could have been made only by breaking a window or door or in some other way such as procuring a locksmith. The evidence was in conflict as to whether the janitor turned off the steam in the building immediately on discovering the leak, or allowed it to continue for several days. The lease contained these provisions: "All personal property placed in the premises above described shall be at the risk of the lessee or owner, and lessor shall not be liable for any damages to said personal property, or to the lessee, arising from the bursting or leaking of water or steam pipes, or from any act of negligence of any cotenant or occupants of the building, or of any other person whomsoever." "Lessor will furnish the premises hereby leased, without charge to lessee, during the proper seasons and during reasonable hours, with steam heat, as the lessor may determine, for heating said premises." "The lessor or any of his agents shall have the right to enter said premises during all reasonable hours, to examine the same, or to make such repairs, additions, or alterations as may be deemed necessary for the safety, comfort or preservation thereof, or of said building, or to exhibit the said premises." "Lessee agrees to maintain said premises in the same condition, order and repair as they are at the commencement of said term, excepting only reasonable wear and tear arising from the use thereof under this agreement."

The judge charged to the jury the law of ordinary care, and that the defendant would be responsible for ordinary negligence, notwithstanding the provision in the lease exempting him from damages to personal property, but failed to charge any law as to willfulness or wantonness with regard to the allegations of the petition. He charged that if the jury found that the defendant knew or by ordinary care should have known that steam was escaping in plaintiff's apartment, and by ordinary care could have anticipated that damage to plaintiff's property would result, then, under the clause in the lease permitting him to enter such apartment, "the defendant or his authorized agent would be authorized to enter said apartment, even if resorting to force would have been necessary in order to make any necessary repairs to the heating equipment." There was also an exception to the admission of evidence that the janitor had done work on the radiator in the plaintiff's apartment both during the time of occupancy and in the year before the time when the lease in question began.

The jury found for the plaintiff. A new trial was denied; the appellate division of the municipal court affirmed this judgment; and the superior court overruled a certiorari. The motion for new trial is based on the general grounds, on exceptions to charges, as above stated, and on refusal of a request to charge that if the jury found that the lease "contained a provision relieving the defendant landlord from liability to the plaintiff tenant while in the premises occupied under the lease, the plaintiff could not recover."

On a previous trial of the case, the municipal court granted a nonsuit, but on what theory or under what evidence the record does not show. The appellate division affirmed this former judgment; but on certiorari the superior court entered this judment: "The case should have been submitted to the jury under proper instructions. The certiorari is sustained and the case remanded for trial." That decision was not brought to this court. On appeal of the present judgement for the plaintiff, the appellate division of the municipal court. acting upon the assumption that the former judgment of the superior court required a holding that, notwithstanding the exemption provisions in the lease, the case presented a jury question as to the negligence of the defendant, held that none of the grounds of the motion for a new trial required a reversal, and affirmed the judgment. Upon what theory or for what reasons the superior court in effect affirmed these judgments does not appear. The decisions on the two certioraris were made by different judges. The present judgment is merely that "the certiorari is overruled and the judgment of the municipal court is affirmed." The former judgment only remanded the case because it "should have been submitted to the jury under proper instructions."

D. K Johnston, of Atlanta, for plaintiff...