Monahan v. National Realty Co.

• Decision Date: 04 August 1908
• Docket Number: 1,138.
• Citation: 62 S.E. 127,4 Ga.App. 680
• Parties: MONAHAN v. NATIONAL REALTY CO.
• Court: Georgia Court of Appeals

62 S.E. 127

4 Ga.App. 680

MONAHAN v. NATIONAL REALTY CO.

No. 1,138.

Court of Appeals of Georgia

August 4, 1908

Syllabus by the Court.

A landlord is liable for defects in the original construction of a building, whether he knows of them or not, and, where he retains a qualified possession and general supervision of his building, he may also be held liable for injuries arising from failure to maintain the building in proper repair either if he knew of the defects, or if in the exercise of ordinary care he should have known of them.

In an action brought to recover for injuries due to the defective construction of a building, evidence as to the condition of the building at the time of the casualty may be admissible for the purpose of illustrating that the construction of the building was originally defective, and to show that the immunity, which a landlord may ordinarily claim upon the ground that he exercised due care in obtaining the advice of experts, has been withdrawn by reason of the facts that he had had ample notice (from actual physical conditions brought to his attention or to that of his agents) that the construction was improper in the first instance.

The maxim "res ipsa loquitur" is simply a rule of evidence, and whether, under a given state of facts, the maxim is to be applied, is an inference to be reached by the jury, and not by the court. In a case where one, himself in the exercise of due care, sustains an injury which is primarily traceable to the operation of some portion of a building, and the casualty is of a kind which does not ordinarily occur where a building has been properly constructed, a jury may be authorized to infer that the resultant injury was due to original defective construction. The duty of proper construction, devolving upon a landlord is an absolute duty-he is especially charged with knowledge of the character of a building constructed by him-and where injury caused by an appliance of the building results to one properly invited by a tenant into the building, negligence is prima facie attributable to the landlord.

[Ed Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 271, 285.]

Where the only objection made to the introduction of evidence is that it is irrelevant to illustrate a certain issue, it is not error to overrule this objection, if the evidence is relevant to any other issue in the case, and if no objection is made to the competency of such evidence. Although testimony may be incompetent, it need not be excluded upon that ground, unless that objection be specially raised. From knowledge of the existence of a present condition, knowledge of the existence of the same condition in the past may sometimes be implied.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 194-210, 226.]

One may be liable for the result of a hidden defect as well as for injurious consequences of a patent defect unless he did not know, or, in the exercise of due care ought not to have known, of such latent defect. A landlord is liable for a defect of construction, latent or otherwise, the existence of which he knew or ought to have known.

Construction which is not strong enough to stand the strain of ordinary use is defective construction.

Where the judge, who presided at the trial of the case, did not hear the motion for a new trial, but it was heard by his successor, the rule with reference to the weight of the opinion of the trial judge upon the facts has no application; nor has a judge, who did not try the cause originally, that discretion in relation to the grant or refusal of a new trial upon the evidence, with which an appellate court is reluctant to interfere.

Error from City Court of Savannah; Davis Freeman, Judge.

Action by Annie Monahan against the National Realty Company. Judgment for defendant, and plaintiff brings error. Reversed.

Osborne & Lawrence and Oliver & Oliver, for plaintiff in error.

O'Connor, O'Byrne & Hartridge, for defendant in error.

RUSSELL J.

The plaintiff in error, Mrs. Monahan, brought an action against the National Realty Company, a corporation owning and operating an office building in the city of Savannah, to recover damages for an injury to her hand. The petition alleges: That Mrs. Monahan went to the office of a dentist in the defendant's building to be treated; that while there the annual policemen's parade passed by, and she raised one of the windows to look at the parade, and when she raised the window the chains which supported the sash broke and fell upon her hand, injuring it; that she did not know, and could not by ordinary care have known, of the size and weakness of the chains; that the defendant could, by the exercise of ordinary care, have known of the weakness of the chains and did, in fact, know of it, and further knew that the occupants and visitors to the office in the defendant's building went to the windows for the purpose of looking out, and especially when public parades were passing. The allegations of the petition which are especially material to be considered are those in paragraphs 7 and 12, which are as follows: "(7) That the window was caused to fall by reason of the fact that the chains which supported the sash in the lifts were too light to serve the purpose for which they were being used at the time and place aforesaid. Said chains, being too light and small to sustain the weight of the window, broke and caused the window to fall with full force upon petitioner's said wrist, causing the injury aforesaid." This paragraph was amended by adding the following: "The defendant knew that said chains were too light, weak, and small for the purpose intended when they were put in the windows in said building. The construction of the building was originally defective, in that the said chains were light, small, and weak. By the exercise of ordinary care at the time said chains were put in the building, defendant could have known that they were too light, small, and weak for the purpose to which they were put. The building was constructed by the National Realty Company and under its supervision." "(12) The defendant was negligent as follows: In keeping and maintaining a chain which was too light for the purposes for which it was intended to serve. Said chain was too light to sustain the weight of the window when raised. Said defendant knew that the chains were too light to bear the strain upon them when the window was open. Said defendant ought to have known, in the exercise of ordinary care, that said chains were too light to bear the strain upon them when the windows were open. All of these acts of negligence concurred in producing the injury aforesaid."

From the evidence it appears that Dr. Osborne, a dentist, rented an office from the defendant. The defendant did not part with possession of its building. It kept a superintendent who looked after the building and had charge of making repairs to the same. It also furnished the tenants with ice water and porter service, including the care and cleaning of windows. On the date in question, the plaintiff went to Dr Osborne's office to be treated. While in the office, the policemen's annual parade passed, and Mrs. Monahan went to one of the windows to look out. It appeared that it was customary for the windows to be so used when parades were passing. When raised, the chains, which supported the window, broke, and the sash fell and severely injured her hand. Dr. Osborne testified that Mr. Campos, the superintendent of the building, told him that the window chains had been breaking all over the building, and that he had been repairing them, and had used up a second roll of 500 feet of chain...