Leonard v. Fulton National Bank of Atlanta, Trustee., 86 Ga. App. 635, 72 S.E.2d 93 (1952)

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John M. Slaton, J. Hugh Rogers, contra.N. T. Anderson Jr., for plaintiff in error.

Where, as here, the landlord has by lease parted fully with possession and right of possession of the leased premises, although he retains therein the right to enter, examine, and repair the premises, he is not liable to third persons for injuries received as a result of the tenants' negligent or illegal use thereof.

The lease attached to the petition and made a part thereof contained a provision as follows: "Lessor or his agents shall have the right to enter said premises at reasonable hours, to examine the same, make such repairs, additions or alterations as may be deemed necessary for the safety, comfort, and preservation of said building, and to enter upon said premises at any time to repair or improve lessor's adjoining property, if any." Typed into said lease as a part thereof was also the following provision: "It is especially agreed that the lessor will not be responsible for repairs of any character on the property."

The trial court sustained a general demurrer to the petition as amended and dismissed it as to this defendant, which judgment is assigned as error.

Code 61-112 provides: "The landlord, having fully parted with possession and right of possession, is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; but he is responsible to others for damages arising from defective construction or for damages from failure to keep the premises in repair." The general rule is that the landlord, having parted with possession, is not liable to third persons for a defect in the rented premises not constructed by him of which he had no knowledge and which he had not been notified to repair. Ocean Steamship Co. v. Hamilton, 84 Ga. App. 572 (66 S. E. 2d, 188), and like cases, in which the lessor retained a right of possession and measure of actual control over the premises leased. In the former case, the landlord, by reserving the use of a bathroom equally between the occupants of a room rented to the tenant and a room which be did not rent to anyone, had an equal right with the tenant to the occupancy of the bathroom and was in consequence liable for the tenant's negligence in causing an overflow of water to the premises below. In the latter case, the Southeastern Fair Association by its lease reserved to itself in several particulars the right to control the operations of the concessionaire tenant, and the premises and devices operated thereon. No such retention or control is shown here, and the mere right to inspect and repair does not give the landlord such control over the use of the premises as to make him liable for the tenant's negligence in relation thereto. The landlord had both actual and constructive knowledge of the construction of the washrack, but he did not have knowledge of the amount of water used by the tenants in washing cars at any one time. It might become apparent to him from an inspection of the premises that the washrack could be used in a negligent manner which would cause it to overflow. At the same time, it would be equally apparent to him that it could be used in a diligent manner under such circumstances that it would not overflow. Since he was not liable for the negligent use of this construction by the tenant, and since such negligent use was necessary in order to bring about an overflow of water which might freeze on the sidewalk below, the petition fails to set forth the breach of any legal duty on the part of the landlord. Accordingly, the trial court did not err in dismissing it as a party defendant.

Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.

1952

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