Nunnally Et Al. v. Shockley., 91 Ga. App. 767, 87 S.E.2d 115 (1955)
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Judgment affirmed in part and reversed in part.
Summary
Judgment affirmed in part and reversed in part.
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A. M. Kelly, D. M. Pollock, contra.Roberts & Roberts, William P. Whelchel, for plaintiff in error.
Where the evidence shows that the plaintiff was an invitee of a tenant and sustained an injury by reason of the defendant landlords' failure to repair a defect in the premises occupied by the tenant, and where the evidence also fails to show that landlords retained any right to possession of the premises rented to the tenant, and shows that the tenant had not given, nor had the landlords received, notice of the defect causing the plaintiff's injury, the verdict for the plaintiff was unauthorized by the evidence, and the court erred in denying the defendants' motion for a new trial.
Mrs. A. G. Shockley brought suit against Harry B. Nunnally, Frances N. Napier, and Clara Knox Nunnally Roberts, on the following alleged facts: The defendants are the owners, as tenants in common, of a two-story brick building, known as the Eulalia Building, in Monroe. There are stores and an office on the first floor and offices and shops on the second floor. There is a lobby at the foot of stairs leading up to the second floor, and entrances are provided from the lobby to the stores and office on the first floor. The lobby was for the use of the general public in patronizing the stores and offices of the building.
The defendants were the devisees of a remainder interest in the building, subject to a life estate in Mary Eulalia Nunnally, under the will of W. J. Nunnally, and then came into possession of the property on April 27, 1952, when Mary Eulalia Nunnally died. On May 9, 1952, the defendants employed Trust Company of Georgia as their agent to maintain and supervise the building, to keep it insured, and to collect the rents, and the bank was acting as the defendants' agent at the time of the plaintiff's injuries.
M. G. Crossley operated a store on the first floor of the building, and on November 15, 1952, the plaintiff entered the Crossley store from the lobby to purchase some ice cream. At the entrance, two screen doors, each one-half the width of the doorway, opened outward into the lobby. The plaintiff pulled back the door on her right to enter. A threshold (sill or saddle?) had been placed on the floor beneath the double doors and was held in place only by a roofing nail, which was not of the type used for this purpose. The threshold was loose; under it was a space about one inch wide and one inch deep between the floor of the store and the floor of the lobby. The plaintiff's shoe moved the loose threshold, exposing the crack between the two floors. With her shoe in contact with the crack and the loose threshold, the plaintiff was tripped and thrown to the floor of the store, fracturing her left femur. The single nail on the left end of the threshold was obscured by the left screen door, and the crack between the floors was also obscured by the doors. The plaintiff was injured at about 1 p. m., when the building and the stores were open for public patronage, and the plaintiff was an invitee of the defendants. The plaintiff did not know of the loose threshold and the crack beneath it, and these defects were not obvious to the plaintiff in the exercise of ordinary care. The defendants knew, or in the exercise of ordinary care should have known, of the dangerous condition of the entrance to Crossley's store from the lobby of their building.
The defendants' general demurrer to the foregoing allegations of the petition was overruled, and they except.
The defendants also except to the denial of their motion for a new trial, after the jury returned a verdict for the plaintiff on the trial of the case.
The petition does not show that the defendants had parted with possession of any part of their building. Hence, the defendants' alleged liability is simply that of owners or occupiers of land to an invitee for "failure to exercise ordinary care in keeping the premises and approaches safe." Code 105-401. The petition alleges facts sufficient to raise a jury question as to whether the defendants breached their duty, to the plaintiff's injury, and the court did not err in overruling the demurrer to the petition.
2. The evidence presents a case differing from that alleged. It appears that Crossley and the plaintiff were tenants of the defendants, occupying different parts of the building; that the plaintiff entered Crossley's store as a customer intending to buy ice cream; that Crossley had never noticed anything wrong with the threshold until five or six hours after the plaintiff was injured; and that neither Crossley nor his employee, Ridder, had ever reported any defects in it to anyone. The threshold board, or door sill, or saddle, was under the "permanent door," and the screen doors were beyond it, towards the lobby of the building. The janitor of the building, who swept the lobby, halls, and steps, did not have anything to do with cleaning the store; Crossley cleaned it. The defendants, two officers of the Trust Company of Georgia who were in charge of renting and maintaining the property, and an officer of Nunnally Lumber Company, authorized to make emergency repairs, all testified that they had been given no notice of the defective threshold, and did not know about it.
The invitee of a tenant is controlled by the rules governing the tenant as to the right of recovery for injuries arising from failure to keep the premises in repair. Crossgrove v. Atlantic Coast Line R. Co.,
The evidence does disclose that the landlords entered into an agreement with Trust Company of Georgia, by the terms of which they agreed for the trust company to take over the control of the entire building, to collect the rents from the same, and keep it in repair. The parts of the contract material to consideration of this case read: "Principals are the owners of a certain properties fully identified in "Exhibit A" hereto attached. Principals desire to place said properties in agent's custody for management and servicing. Agent is willing to undertake said service and duties imposed hereby, upon the terms set forth herein.
"Now, therefore, it is mutually agreed by and between principals and agent as follows:
"1. Principals hereby employ agent, who accepts said employment, to render the following services in connection with said properties:
"(a) To hold said properties in its custody and control and others that may be added.
(b) Generally to represent principals in the management thereof.
(c) To determine the tenants and rates of rents they pay but agent shall make no rental or lease contract for longer than one (1) year without first obtaining written approval of principals.
(d) To collect the rents and other income, if any, from the properties placed in this agency and quarterly to distribute equally to the principals the net income, after reserving such amounts thereof as agent estimates to be proper for repairs, ad valorem taxes and other expenses.
"(f) From funds in the agency account, the agent is authorized to pay the ad valorem taxes, insurance premiums and other similar fixed charges as they become due.
"(g) To keep accurate books of account on all transactions in respect to said properties and funds received and to render semi-annually detailed statements to principals.
"(h) To supply from time to time such information as agent may possess for the purpose of having income and intangible tax returns prepared for principals.
"(i) To prepare ad valorem tax returns for the real estate managed hereunder by agent."
The contract constituted an admission in writing that the defendants had the right to inspect the building, including the Crossley store, and the corresponding liability for failure to exercise ordinary care in discovering defects and making necessary repairs.
It is not necessary for the parties in the case to have been originally concerned in the transaction between the defendants and the Trust Company to avail themselves of the defendants' written admission that they had retained the right incident to a qualified possession of the entire Eulalia Building. Nor was it essential that the contract state in express terms that the defendants retained such right. The language of the contract is a clear assertion on the part of the defendants both that they had and were exercising that right to inspect the store space occupied by Crossley.
In my opinion there was ample evidence for the jury to have predicated the verdict returned by them in the plaintiff's favor.
1955
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