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WEEN v. SAUL et al. (two cases).
34521.
34522.
Action for damages. Before Judge Hendrix. Fulton Superior Court. January 2, 1953.
WORRILL, J.
The petitions in these cases, being actions for damages resulting to a tenant from a defect in the premises, of which the landlord had actual or constructive notice, stated causes of action, and the trial court erred in sustaining the general demurrers and in dismissing the actions.
Morris M. Ween and Mrs. Frieda Ween in separate actions sued J. L. Saul and Joseph A. Freeman for damages alleged to have resulted when Mrs. Ween was struck and injured by plaster falling from the ceiling of the bedroom of an apartment owned by the defendants and occupied by the plaintiffs. The defend ants demurred generally and specially, the trial court sustained the general demurrer in each case and dismissed the actions, and the exception here in each case is to that judgment. Insofar as the question presented by the general demurrers and the argument of counsel before this court, the allegations of the two petitions are the same, and the cases will be treated together.
The petitions alleged: that the defendants are owners of a certain apartment house in the city of Atlanta, one unit of the same being occupied by the plaintiffs under a verbal lease entered into between the parties in June, 1950; that, approximately two weeks after the plaintiffs took possession of the said apartment, they observed that a portion of the plaster ceiling measuring approximately three feet in area in the bedroom was sagging about two or three inches; that the plaintiffs immediately notified the defendants' rental agents of the said defect, and said agents advised plaintiffs that the ceiling would be repaired immediately; "that when plaintiff observed and noticed that the three-foot area of the ceiling was sagging, plaintiff moved the bed that was under that portion of the ceiling that was sagging, and placed the bed on the other side of the bedroom away from and clear of the sagging portion of the ceiling"; that on two subsequent occasions between June, 1950, and January, 1951, defendants having failed to repair the said ceiling, the plaintiffs notified the rental agent of the condition of the ceiling, and on each occasion plaintiffs were advised that said ceiling would immediately be repaired; that during that period defendants made periodic inspections of the premises and the bedroom occupied by the plaintiffs and noticed the condition of the ceiling therein and promised to repair the same immediately; that, on or about January 1, 1951, defendants employed new rental agents, and on January 4, 1951, plaintiffs again notified defendants' agents and were advised that the ceiling would be repaired; "that, although the rental agents as herein set forth, had actual knowledge of the condition of the ceiling and had promised to repair the same and although the defendants had actual knowledge of the condition of the ceiling, neither the rental agents nor the defendants made any repairs whatever to said ceiling"; that, on January 20, 1951, at about 11:15 p. m., Mrs. Ween was lying in bed in the bedroom of the said apartment and suddenly and without any warning whatsoever the plaster ceiling covering an area of approximately six feet square directly over the bed in which she was lying gave way and crashed to the floor, several pieces of the same weighing at least 25 pounds striking her and inflicting the injuries sued for. Mr. Ween's petition (case No. 34522) further alleged: "That, when plaintiff noticed the condition of the ceiling, he moved the bed from the area where the ceiling sagged, and plaintiff and his wife abstained from using that area and placed the bed as far as possible across the room . . . That at no time prior to being injured, as described herein, did the plaintiff or his wife have any knowledge of the danger of the said ceiling and did not have a full appreciation of the risk involved in remaining in said bedroom . . . That the defendants had actual knowledge of the defective and dangerous condition of the ceiling in the bedroom by reason of the notice given by plaintiff to the rental agents of the defendants, and by reason of the personal inspection of the premises by the defendants, and even though the defendants had this actual knowledge, they failed to repair the premises in a reasonable time . . . That all of plaintiff's injuries and damages as set forth herein are the direct and proximate result of the negligence of the defendants . . . That the defendants were negligent as follows: 1. In failing to keep the premises in repair. 2. In failing to repair the premises within a reasonable time after the defendants had notice of the defective condition of the ceiling. 3. In causing, allowing and permitting the plaster ceiling to become defective and to sag as hereinbefore described. 4. In failing to replace the said ceiling with new plaster after having actual knowledge of the condition of the ceiling. 5. In causing, allowing and permitting the plaster ceiling to remain in a defective condition." The allegations of Mrs. Ween's petition (Case No. 34521) as regards this phase of the case were substantially the same, differing only as the difference in the parties plaintiff required different wording.
While the landlord is not an insurer of the safety of persons lawfully on the premises, he is nevertheless responsible for injuries resulting from his negligent failure to repair a defect after he has notice of the same, and he is likewise liable for injuries resulting from latent defects in the premises which might reasonably have been discovered upon the repair of the defects of which he had notice. The only duty of care resting on the tenant is to refrain from using those portions of the premises which are patently defective or dangerous; but when the landlord is notified that the premises are out of repair, it becomes his duty to inspect the premises and to make such repairs as the safety of his tenants requires. Gledhill v. Harvey, 55 Ga. App. 322 (190 S. E. 61). These propositions are so well settled that the only difficulty about them lies in their application to particular facts.
In the instant case, the allegations of the petition show that the plaintiff tenants first noticed a defective condition in the plaster on the ceiling of the bedroom of their apartment rented from the defendants about two weeks after they first occupied the same, that they immediately notified the defendants' agent of the condition, and that the agent promised them that repairs would be made promptly. Thereafter, during the course of some seven months, according to the allegations, the agent of the defendants was repeatedly advised of the condition and requested to make repairs, and also during that time the premises were inspected by the defendants personally. These latter allegations go merely to show actual knowledge off the defect on the part of the defendants. During that seven-month period, the defendants failed to make the requested repairs to the ceiling, and in January, 1951, seven months after the plaintiffs first noticed the three-foot area of sagging ceiling, another portion of the plaster, across the room from that which was patently defective, fell and inflicted the injuries sued for. In our view the allegations of the petition bring the case squarely within the rules set forth above. Applying the general rule that questions of negligence, diligence, and contributory negligence are jury questions, it is a question for the jury in this case whether the defect which injured Mrs. Ween was a latent or patent one such as would have charged the plaintiffs with knowledge of the danger attendant in using the portion of the bedroom that they were using at the time Mrs. Ween was injured; and it was likewise a jury question as to whether a reasonable inspection of the premises in connection with the repair of the patent defect of which the defendants had notice would have revealed to the defendants the defective condition which resulted in the injuries to Mrs. Ween. Harris v. Riser, 30 Ga. App. 765, 769 (119 S. E. 432). See also Mathis v. Gazan, 51 Ga. App. 805 (181 S. E. 503).
It follows that the trial court erred in each case in sustaining the general demurrers and in dismissing the action.
Judgment reversed. Sutton, C. J., and Felton, J., concur.
Mortimer Freeman, J. Ralph McClelland, Jr., John L. Westmoreland, John L. Westmoreland, Jr., for plaintiffs in error.
DECIDED MAY 27, 1953.
Saturday May 23 04:29 EDT


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