Ocean S.S. Co. of Savannah v. Hamilton

• Decision Date: 01 March 1901
• Citation: 38 S.E. 204,112 Ga. 901
• Parties: OCEAN STEAMSHIP CO. OF SAVANNAH v. HAMILTON.
• Court: Georgia Supreme Court

38 S.E. 204

112 Ga. 901

OCEAN STEAMSHIP CO. OF SAVANNAH v. HAMILTON.

Supreme Court of Georgia

March 1, 1901

Syllabus by the Court.

1. A landlord is not liable for personal injuries to a servant of his tenant arising from a defect in the rented premises, of which the landlord had no knowledge, and which he had not been notified to repair. It was, in the present case erroneous not to grant a nonsuit.

2. When the tenant is in the exclusive possession and control of the rented premises, the landlord is under no duty of examining the same with a view to ascertaining whether or not repairs are needed, unless requested so to do.

3. A party dissatisfied with a verdict cannot, without filing a motion for a new trial, properly bring to this court for review any "ruling, order, decision, or charge" of the court below which did not, either singly or in connection with another or others, necessarily control the finding against the plaintiff in error; nor, in the absence of such a motion, is an attack upon a verdict by direct exception thereto, save as herein indicated, of any avail.

Error from city court of Savannah; T. M. Norwood, Judge.

Action by Ephriam Hamilton against the Central of Georgia Railway Company and the Ocean Steamship Company of Savannah. Complaint dismissed as to the railway company, and judgment rendered against the steamship company, and it brings error. Reversed.

Lawton & Cunningham, for plaintiff in error.

Osborne & Lawrence, for defendant in error.

LUMPKIN P.J.

The bill of exceptions now before us among other things assigns error upon the refusal of the trial court to grant a nonsuit. The action was brought by Hamilton against the Central of Georgia Railway Company and the Ocean Steamship Company of Savannah for personal injuries. Before any evidence was introduced "the plaintiff dismissed his suit as to the defendant Central of Georgia Railway Company, and the cause proceeded against the Ocean Steamship Company of Savannah as sole defendant." The word "defendant" will therefore, hereinafter be used to designate the steamship company. The petition alleged, and the answer of the defendant admitted, that the plaintiff was an employé of T. S. Wylly & Co.; that, as such, he was working upon a wharf belonging to the defendant; that "Wylly & Co. were then and there using the said wharf by and with the consent of the said defendant"; and that the particular business in which the plaintiff was employed as a servant of Wylly & Co. was that of "moving lumber and loading the same on vessels moored at said wharf." The tenth paragraph of the petition was as follows: "Petitioner alleges negligence upon the part of defendants in having and keeping in a dangerous condition the said wharf, and letting the same to petitioner's employer for the business petitioner was employed in while it was in such a dangerous condition, and in failing to repair the same and to keep the same in repair while it was so let to petitioner's employer for the business petitioner was employed in." To this paragraph of the plaintiff's petition the steamship company answered: "This defendant admits, as stated in the tenth paragraph of said petition, that said wharf was let to said T. S. Wylly & Co. for the business petitioner's employer was engaged in, but denies any negligence upon its part in having and keeping the same in a dangerous condition, or that the same was in a dangerous condition when let; and denies any negligence in failing to repair the same and in keeping the same in repair while it was so let." At the hearing the plaintiff was sworn as a witness in his own behalf. His testimony, upon which alone he relied to establish diligence on his part and the alleged negligence of the defendant, is set forth in full in the statement preceding this opinion.

1. The court erred in not granting a nonsuit. It is apparent that the plaintiff signally failed to establish his allegation that the wharf in question was in a dangerous condition at the time it was rented to his employers, Wylly & Co. There is no evidence as to the time when they took possession of the wharf, or as to its condition at that time. For aught that appears, the wharf, when rented to them, may have been in all respects safe and sound. The plaintiff did prove that at the time of his injury a portion of the wharf was in a defective condition; but if ever evidence established the fact that a defect was latent, it certainly did so in the present instance. This being so, it was not shown that the landlord actually knew of its existence. While, under section 3118 of the Civil Code, a landlord is responsible to a servant of his tenant "for damages arising from defective construction or for damages from failure to keep the premises in repair," he is not liable because of a failure to repair a defect of...