Opinion
36744.
DECIDED JUNE 18, 1957.
Tort; tenant injured by defective stairs. Before Judge Hicks. Floyd Superior Court. April 1, 1957.
Graham Glover, for plaintiff in error.
Fullbright Duffey, Harl C. Duffey, contra.
1. The petition stated a cause of action for injuries caused by the defendant landlord's negligence in failing to discover and repair a latent defect which in the exercise of ordinary care he might have discovered in repairing a patent defect of which he had notice and which was in the same portion of the premises as the latent defect.
2. Special demurrers 1 and 2 are without merit.
3. The court did not err in sustaining special demurrer 3 on the grounds that it was not shown when notice of the patent defect was given to the defendant's agent and, since such agent was a corporation, to which agent of such corporation notice was given.
DECIDED JUNE 18, 1957.
Viola Aycock sued Dr. John Houser for damages allegedly caused by the defendant's negligence. The plaintiff alleged in substance the following: that the petitioner in March, 1955, rented from the defendant, through his agent, Harvey Given Company, a house located at No. 12 Ross Street, Rome, Georgia, said house belonging to the defendant; that after the petitioner and her family moved into said rented premises, she noticed when descending the back steps to said house that they would shake when used. After having noticed this, she went under the steps to ascertain whether or not they were in a defective condition, and after having made said investigation and having seen no indication that the steps or step runner or stringers were rotten, based on said inspection, she determined that their shaking must be due to the fact that they were not properly attached to the house; that she observed the top or upper side of the steps and to all appearances they were sound; that after having made the inspections, she notified Dr. Houser, the defendant, and the owner and landlord of said premises, that said back steps leading from said house "shook" when walked upon and that he should have something done about it, to which Dr. Houser replied that he intended to put up some concrete block steps; that the steps attached to the back of the house appeared, from the upper and under sides, to be safe and usable, without danger to the plaintiff and other users, when in reality the stringers supporting the wooden steps were in a rotten and decayed condition, and the defendant, after notice, knew or by the exercise of ordinary care could and should have known of their defective condition; that the defective and dangerous condition of the steps was latent and the plaintiff did not know that said stringers were rotten and had deteriorated on the inside, nor by the exercise of ordinary care could she have known of the existence of said condition; that she notified Dr. Houser's agent, Harvey Given Company, once of the condition of said steps, and she notified Dr. Houser on numerous occasions of said condition and requested him to have someone come to the premises and repair the same so as to make them steady when they were used and all of said requests were ignored; that on October 22, 1955, she was descending said steps, and when she reached either the third or fourth step from the bottom said stringers and step gave away causing her to fall to the ground, sustaining the following injuries: striking the ground on her right knee breaking the same in the knee cap, from which she has suffered severe and excruciating pain, which she still suffers and will continue to suffer in the future; that because of the heretofore set out facts, she sustained said injuries due to the following acts of negligence on the part of the defendant: (a) in not having said steps inspected by a competent person, after notice, to ascertain their true condition; (b) in not having the steps repaired so that they could be used with safety; (c) in keeping and maintaining the steps in an unsafe condition for use by the plaintiff; (d) in failing to inspect the same and replacing the decayed stringers; (e) in failing to exercise ordinary care by inspecting or having said steps and stringers inspected and having the same replaced, after having been put on notice.
A general and several special demurrers to the petition were sustained and the action was dismissed and the plaintiff excepts.
1. The petition stated a cause of action as against a general demurrer. The plaintiff was injured by a latent defect which she alleges should have been discovered by the defendant in a reasonable inspection after notice of a patent defect. A landlord has constructive notice of a latent defect if the latent defect is in the same portion of the premises as the patent defect and he has notice of the patent defect and if in the exercise of ordinary care the latent defect would or should have been discovered in repairing the patent defect of which he had notice. Gledhill v. Harvey, 55 Ga. App. 322 (1) ( 190 S.E. 61); Shaddix v. Eberhart, 55 Ga. App. 498, 499 (2) ( 190 S.E. 408); Wall Realty Co. v. Leslie, 54 Ga. App. 560, 562 (2) ( 188 S.E. 600).
It is contended by the defendant that the plaintiff was barred from recovery by her own negligence in using the defective portion of the premises after she had knowledge of its dangerous condition. The contention is without merit. The plaintiff alleged that after she discovered the patent defect, that is, the shaking of the stairs, she inspected the stairs and did not and could not discover the latent, rotten condition of the stairs and determined that the shakiness must be due to the fact that they were not properly attached to the building. Before a plaintiff is barred from recovery by her use of defective premises, she must have knowledge of the dangerous and unsafe condition there existing. Shaddix v. Eberhart, supra, (1). When the landlord is notified that the premises are out of repair, it becomes his duty to inspect and investigate in order that he may make such repairs as the safety of the tenant requires. It follows, therefore, that when after such notice the landlord fails within a reasonable time to make the repairs, he is chargeable with notice of all the defects that a proper inspection would have disclosed. To this extent he might be charged with liability for injury arising from a defect which was hidden so far as the tenant was concerned. Stack v. Harris, 111 Ga. 149, 151 ( 36 S.E. 615). A patent defect might not reveal a dangerous condition created by an existing latent defect. Garner v. LaMarr, 88 Ga. App. 364 (1) ( 76 S.E.2d 721). The mere fact that the steps were shaky in and of itself would not put the plaintiff on notice of the dangerous condition created by the latent defect. Krapf v. Sternberg, 48 Ga. App. 130, 131 ( 172 S.E. 69).
2. Special demurrer 1 attacks paragraph 2 of the petition on the ground that it was not alleged or shown on what date the alleged inspection was made. Special demurrer 2 attacks paragraph 3 on the grounds that the date and manner of the alleged notice to the defendant is not alleged. Both special demurrers are without merit. The plaintiff does not allege in paragraph 2 or 3 of her petition notice to the defendant and consequently these paragraphs were not subject to the criticism contained in the special demurrers directed against them; therefore, the court erred in sustaining these special demurrers.
3. Special demurrer 3 demurs to paragraph 8 of the petition on the ground that that paragraph did not allege the date on which the plaintiff gave notice of the patent defect to the defendant's agent and did not allege to whom such notice was given. This demurrer is meritorious. The defendant is entitled to know the date or approximate date such notice was given to his agent and since his agent was a corporation he is also entitled to know to which agent of the corporation such notice was given. The court did not err in sustaining this special demurrer.
The court erred in sustaining the general demurrer and special demurrers 1 and 2 to the petition and in dismissing the action.
The court did not err in sustaining special demurrer 3 directed toward paragraph 8 of the petition.
Judgments affirmed in part and reversed in part. Quillian and Nichols, JJ., concur.