Williams v. Jones

• Decision Date: 26 March 1921
• Docket Number: 11804.
• Citation: 106 S.E. 616,26 Ga.App. 558
• Parties: WILLIAMS v. JONES.
• Court: Georgia Court of Appeals

106 S.E. 616

26 Ga.App. 558

WILLIAMS v. JONES.

No. 11804.

Court of Appeals of Georgia, Second Division

March 26, 1921

Error from Superior Court, Bibb County; J. L. Kent, Judge.

Action by Joseph Jones, by next friend, against F. W. Williams. Judgment for plaintiff, and defendant brings error. Affirmed.

L. D Moore, of Macon, for plaintiff in error.

Robt. G. Plunkett, of Macon, for defendant in error.

JENKINS P.J.

1. While it is the general rule that, in the absence of an agreement so to do, a landlord is not bound to repair a patent defect in a building, the existence of which was known to the tenant at the time the rent contract was entered into (Aikin v. Perry, 119 Ga. 263 [3], 46 S.E. 93; Driver v. Maxwell, 56 Ga. 11 [2], White v Montgomery, 58 Ga. 204 [1]), this principle of waiver did not have application where the defect arose during the term of the tenancy, which, according to the contention of the landlord, expired and was renewed at the end of each week, where it also appeared that the landlord had been notified by the tenant of such defect, and, without refusing to repair it prior to any such weekly renewal, had failed so to do within a reasonable time after such notice had been given. In such a case the renewal will not be taken as a waiver of the defect, but will be construed in connection with the notice given and the resultant obligation devolving upon the landlord.

2. Notwithstanding that the tenant may not have waived the landlord's duty to repair, or any right of action growing out of an injury caused by such a failure, and even though ample notice of such defect may have been given by the tenant to the landlord, it is nevertheless the rule that neither the tenant nor any person lawfully upon the premises by his express or implied invitation can recover for injuries caused by such a defect, where the tenant or such other person could have avoided the consequences of the landlord's negligence in failing to repair, by the exercise of ordinary care on his own part. Ball v. Walsh, 137 Ga. 350, 73 S.E. 585; Ross v. Jackson, 123 Ga. 657, 51 S.E. 578; Ledbetter v. Gibbs, 19 Ga.App. 485 (2), 91 S.E. 875.

The care which is here required of a child of tender years is however, only such as its mental and physical capacity fits it for exercising under the circumstances (Civil Code [1910] § 3474), and a child of four years is conclusively presumed to be incapable of contributory negligence. Crawford v Southern Ry. Co., 106 Ga. 870, 877, 33 S.E. 826.

Any negligence of the tenant in failing to prevent his child from using the defective portion of the premises would not be imputable to the child, in an action maintained in its own behalf. Civil Code (1910) § 3475; ...