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Damages. Walton Superior Court. Before Judge Cobb. December 12, 1958.
FELTON, Chief Judge.
The court erred in denying the motion for a new trial for the reasons stated in division three of the opinion.
This is the fourth appearance of this case in this court. A brief summary of the petition is given in Nunnally v. Shockley, 91 Ga. App. 767 (87 S. E. 2d 115). The next appeal was ruled on in Shockley v. Nunnally, 93 Ga. App. 437 (91 S. E. 2d 793) which affirmed the grant of a nonsuit. The third ruling on appeal was Shockley v. Nunnally, 95 Ga. App. 342 (98 S. E. 2d 47). Before the case was tried the third time the plaintiff amended her petition by alleging: "Said building also contains on the second floor thereof a restroom, or toilet, provided and maintained by defendants for the use, comfort and convenience of the tenants of defendants in said building and the employees and invitees of such tenants.
"Said lobby and its exits therefrom, including said doorway into Crossley's store, were provided by defendants for, and used by said tenants as a means of ingress and egress to and from the offices, shops and storerooms of the building and to and from the restroom on the second floor.
"Prior to November 15, 1952, defendants did inspect said premises when said defective threshold was there and said nail visible, and in the exercise of ordinary care defendants should have inspected said threshold itself and should have discovered the defective condition thereof and should have repaired the same.
On the fourth trial the jury found for the defendants and the plaintiff excepts to the denial of her motion for a new trial on the general grounds and five special grounds.
1. As the alleged errors complained of in grounds 1 and 5 will not likely recur on another trial this court will not pass on these grounds at this time. This non-action on these grounds is without prejudice.
2. Ground 2 complains that the court erred in charging the jury as follows: "The liability of a landlord for defective construction exists only where the structure is built by him in person or under his supervision or direction." The court charged immediately after the excerpt complained of the following: "If a building were defectively constructed by a predecessor in title, and the landlord knew or by the exercise of reasonable diligence could have known of its improper construction before the tenancy was created, he would be answerable to the tenant, or to any one lawfully on the premises by invitation of the tenant, for injuries sustained by reason of his failure to put the premises in a safe condition if the person sustaining the injuries could not have avoided the same by the exercise of ordinary care." This charge was correct and necessary in fairness to the defendants in this case and eliminated an issue from the case which might otherwise have been confusing to the jury. Dobbs v. Noble, 55 Ga. App. 201 (3) (189 S. E. 694). The court did not err in giving the charge complained of.
3. Grounds 3 and 4 can be treated together. Ground 3 complains of the following charge: "A tenant is entitled to exclusive occupancy during the term of his tenancy and it is his duty, if the premises get out of repair, to notify the landlord of their defective condition." Ground 4 complains of the following charge: "The landlord is under no duty to inspect the premises while the tenant is in possession in order to keep informed as to their condition." Under the facts of this case it was error to give both of these excerpts without qualification. The court elsewhere charged the applicable law but did not call attention to these unqualified excerpts and withdraw or correct them. Executive Committee of Baptist Convention v. Ferguson, 213 Ga. 441 (1) (99 S. E. 2d 150). The plaintiff contended that the landlords had a right to enter the store rented by Crossley to inspect the defective floor leading from the lobby to the store because of the fact that the landlords maintained the lobby and the entrance into the store. The plaintiff also contended that the landlords both retained the right to enter the Crossley store to inspect and repair and, whether they retained it or not, they in fact exercised the right to inspect and repair. As to the actual exercise of the right of entry to inspect and repair, the evidence was not sufficient to establish it as to the Crossley store. The only inspection ever made there was of the basement to remove a fire hazard. As to the right to enter the Crossley store by reason of the fact that the landlords maintained the passageway from the lobby into the Crossley store for the use of the public, the evidence did not show that the landlords so maintained and furnished this passageway. The evidence on the last trial was that, when Mr. Crossley first rented the premises, the door from his store to the lobby was closed and blocked by shelving, and that Mr. Crossley removed the shelving and opened the door, obviously for his own benefit and convenience and those of his customers and prospective customers. The landlords would not be charged with the duty to keep this passageway in repair inside the Crossley store unless it maintained it and had or exercised the authority to require its being kept open for the use of the public, and there is no such evidence here--nor was there in any previous appeal considered by this court. However, there was evidence from which the jury could have found that the oral contract of rental between the parties retained for the landlords the right to enter the Crossley store for the purpose of inspection and the making of repairs. DeHowitt v. Hartford Fire Ins. Co., 99 Ga. App. 147 (108 S. E. 2d 280). There was no contention by the plaintiff that notice of defects was given by the tenant.
The court erred in overruling special grounds 3 and 4 of the amended motion for new trial and in overruling the motion as a whole for that reason.
Judgment reversed. Quillian and Nichols, JJ., concur.
Orrin Roberts, William P. Whelchel, contra.
D. M. Pollock, A. M. Kelly, Stephens, Fortson, Bentley & Griffin, for plaintiff in error.
Saturday May 23 00:54 EDT

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