Townsend and Ghegan Enterprises v. W. R. Bean & Son, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: JORDAN
• Citation: Townsend and Ghegan Enterprises v. W. R. Bean & Son, Inc., 159 S.E.2d 776, 117 Ga.App. 109 (Ga. App. 1968)
• Decision Date: 03 January 1968
• Docket Number: No. 3,Nos. 43215-432118,s. 43215-432118,3
• Parties: TOWNSEND & GHEGAN ENTERPRISES et al. v. W. R. BEAN & SON, INC., et al. W. R. BEAN & SON, INC., et al. v. TOWNSEND & GHEGAN ENTERPRISES et al. LAW ENGINEERING TESTING COMPANY v. W. R. BEAN & SON, INC., et al. W. R. BEAN & SON, INC., et al. v. LAW ENGINEERING TESTING COMPANY

Page 776

159 S.E.2d 776

117 Ga.App. 109

TOWNSEND & GHEGAN ENTERPRISES et al. v. W. R. BEAN & SON, INC., et al.

W. R. BEAN & SON, INC., et al. v. TOWNSEND & GHEGAN ENTERPRISES et al.

LAW ENGINEERING TESTING COMPANY v. W. R. BEAN & SON, INC., et al.

W. R. BEAN & SON, INC., et al. v. LAW ENGINEERING TESTING COMPANY.

Nos. 43215-432118.

Court of Appeals of Georgia, Division No. 3.

Jan. 3, 1968.

Rehearing Denied Jan. 19, 1968.

Syllabus by the Court

1. In Cases No. 43215 and 43216 the trial judge did not err in overruling and sustaining various general and special demurrers of Townsend & Ghegan Enterprises and W. L. Townsend to the petition of W. R. Bean & Son, Incorporated, except to the extent that his rulings eliminated any claim for expenses of the present litigation.

2. In Cases No. 43217 and 43218 the trial judge erred in overruling the general demurrers of Law Engineering Testing Company to the petition of W. R. Bean & Son, Incorporated, and reversal of his ruling in this respect renders all other issues moot.

These two appeals and two cross appeals arose out of a single action in the Civil Court of Fulton County. The plaintiff, W. R. Bean & Son, Incorporated, filed suit against Townsend & Ghegan Enterprises, a partnership d/b/a Fulco Warehouse; W. L. Townsend, who is one of the partners; Law Engineering Testing Company, a corporation; and L. E. Carr, seeking to recover for water damage to its paper stored in a warehouse and consequential damages, in two counts, one based on negligence and the other on trespass. The petition shows that the plaintiff was the lessee of space in Fulco Warehouse, that holes were cut in the roof of the warehouse to remove parts of the roof for testing purposes by Law Engineering Testing Company, that Carr attempted to patch the roof, and that shortly thereafter a heavy rain fell and water came through the roof where it had been patched directly over the plaintiff's storage area, causing extensive damage to the paper. In Case No. 43215 Townsend & Ghegan Enterprises and W. L. Townsend appeal from the overruling of their demurrers to the petition, and in Case No. 43216 the plaintiff cross appeals from the sustaining of demurrers of these defendants. In Case No. 43217 Law Engineering Testing Company appeals from the overruling of its demurrers to the petition, and in Case No. 43218 the plaintiff cross appeals from the sustaining of demurrers of this defendant. There is no appeal by the defendant Carr.

Wiggins & Smith, Walter A. Smith, Atlanta, for Townsend & Ghegan.

Gambrell & Mobley, David H. Gambrell, Robert D. Feagin, III, Atlanta, for W. R. Bean.

Lokey & Bowden, Glenn Frick, Atlanta, for Law Engineering.

JORDAN, Presiding Judge.

1. The provisions of the new Civil Practice Act are inapplicable in considering these appeals, which are based on rulings in the lower court prior to the effective date of the Act. See the ruling on motion for rehearing in Abercrombie v. Ledbetter-Johnson Company, 116 Ga.App. 376, 378, 157 S.E.2d 493. As to any rulings by the trial court hereafter made, § 86 of the Georgia Civil Practice Act, as amended (Ga.L.1967, p. 8) controls and vests in that court a discretion to determine whether application of the new procedure 'would not be feasible or would work injustice, in which event the former procedure applies.'

2. The first four enumerated errors in Case No. 43215 are directed to the overruling of the general demurrers of Fulco and Townsend to the petition as finally amended. The petition clearly purports to show an interference with the right of occupancy and use of the premises by the plaintiff as tenant, resulting in damage to the tenant, the tenant being entitled to a roof maintained in good order by the landlord, by reason of the concurring negligence of the landlord, a partnership of two individuals, and one of its members, under the first count, or by reason of their concurring acts in causing a trespass, under the second count. In this respect the case is controlled by Kulman v. Sulcer, 99 Ga.App. 28, 107 S.E.2d 674, involving a substantially analogous factual situation, and pertinent rulings are collected and discussed therein. Code § 105-501 must be construed in pari materia with the stated exceptions in Code § 105-502, and there is no merit in the contention that the petition should be construed on demurrer to afford the partnership or the partner Townsend immunity from liability for the conduct of either Law or Carr even if they were independent contractors.

As to the liability of the landlord for failure to keep the premises in repair, and damages resulting therefrom, see Code §§ 61-111, 61-112; Miller v. Smythe, 92 Ga. 154, 18 S.E. 46; Hill v. Liebman, Incorporated, 53 Ga.App. 462(1), 186 S.E. 431; Oglesby v. Rutledge, 67 Ga.App. 656(1), 21 S.E.2d 497.

3. By Enumerations 5, 6, and 7 in Case No. 43215 it is contended that the trial judge erred in failing to sustain grounds of special demurrer directed to allegations characterizing the defendant Carr as a servant of defendant Fulco employed to patch the holes cut by the defendant Law. Reference to Carr as a servant connotes the necessary legal relationship to invoke the doctrine of respondeat superior, and in this respect the pleadings here are clearly distinguishable from those in Chatham v. Texaco, Inc., 109 Ga.App. 419, 136 S.E.2d 489, cited by counsel. In that case the pleadings referred to a sublessee, a term which does not show as a matter of law the relationship of agent, servant, or employee for application of the doctrine of respondeat superior, and as the court pointed out (p. 422, 136 S.E.2d p. 491), if the relationship of servant, agent, or employee did exist in respect to the sublessee, 'it could have been said so in very simple language.' Also, see Conney v. Atlantic Greyhound Corporation, 81 Ga.App. 324, 58 S.E.2d 559. The allegations are sufficient to withstand the grounds of special demurrer.

4. By Enumerations 8, 9, 10, and 11 in Case No. 43215 it is contended that the trial judge erred in failing to sustain special demurrers directed to conclusions of the pleader which are negated and contradicted by other allegations. Collectively, these allegations are good against the grounds of special demurrer and show that the defendants Fulco and Townsend were negligent and aided in committing acts of trespass by authorizing and permitting the defendant Law to cut holes in the roof and in failing to take measures to protect the plaintiff and its property from damage.

5. Enumerations 12 and 13 in Case No. 43215 are directed to the overruling of demurrers to allegations to the effect that the defendants Fulco and Townsend rendered the premises unfit for tenancy and without cause or provocation evicted the plaintiff. It is contended that at the most the eviction was constructive instead of actual, and in conflict with other allegations showing that paper was moved to another part of the warehouse and that there was only a temporary interruption in business. The lease in the present case requires the lessor to keep the roof in good order, and it is clear from the allegations that in this respect the lessor failed, and irrespective of whether the lessor could not restore the premises to a fit condition, it is quite clear that the lessor did not in fact restore the premises to such condition by adequate repairs in time to avoid damage to the lessee's property and unreasonable interruption of the lessee's business.

If 'premises become untenantable for want of repairs where the landlord was under covenant to repair, then this would be in law, a constructive eviction'. Lewis & Company v. Chisolm, 68 Ga. 40, 47. The rule in Overstreet v. Rhodes, 212 Ga. 521, 93 S.E.2d 715, and cases cited therein, applies generally to situations where the lessee seeks to avoid an obligation to pay rent, an issue not present here, and pleads constructive eviction as an affirmative defense. Moreover, we consider it immaterial whether the alleged acts or omissions resulted in a constructive eviction, for it is manifestly clear that the real gist of the action is for damages resulting from and proximately caused by negligence or trespass, as shown by the alleged facts and irrespective of the legal terminology applied to the condition resulting therefrom.

6. Enumerations 14, 15, and 16 in Case No. 43215 are directed to the overruling of demurrers attacking the claim for punitive damages, the contention being that no facts are alleged to justify an award of punitive damages. 'In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.' Code § 105-2002. 'Punitive damages are only to be given if there be circumstances of aggravation. Whether there be such circumstances or not, is a question for the jury, and not the court.' Ransone v. Christian, 49 Ga. 491, 505. 'It is always exclusively a question for the jury to determine when such additional damages should be allowed, as well as the amount of such damages.' Batson v. Higginbothem, 7 Ga.App. 835, 839, 68 S.E. 455, 457. The allegations which the demurrant seeks to eliminate refer to the alleged tortious conduct under the first count as showing an 'entire want of care' creating 'a presumption of conscious indifference,' and under the second count as being 'in reckless disregard of plaintiff's rights, amounting to a wilful and intentional violation' and showing 'a total, wanton, reckless, crass and conscious disregard,' and a stated amount is sought as punitive damages. Even if these descriptions be nothing more than conclusions, they must be read in the light of the actual alleged acts and omissions of the defendant, and under the rulings set forth above, the circumstances as shown by the pleadings under both counts are sufficient to...