Opinion
35308.
DECIDED OCTOBER 1, 1954.
Damages. Before Judge Hendrix. Fulton Superior Court. May 11, 1954.
Robert L. Mitchell, for plaintiff in error.
In passing upon the question of whether or not the court rightly awarded a nonsuit, the evidence must be construed most strongly in favor of the plaintiff's right to recover. National Land Coal Co. v. Zugar, 171 Ga. 228 (2) ( 155 S.E. 7). "A motion for nonsuit presents only the question of whether the plaintiff has proved his case substantially as laid, and where, under the most favorable construction, a prima facie case has been made out, the grant of a nonsuit is error. Henry v. Roberts, 140 Ga. 477 ( 79 S.E. 115); Box v. Atlantic B. R. Co., 120 Ga. 1050 ( 48 S.E. 427)." Reese v. Bice, 87 Ga. App. 519, 521 ( 74 S.E.2d 476). "Regardless of whether a petition sets out a cause of action, if the plaintiff proves every fact charged, without at the same time disproving his right to recover by establishing the existence of other undisputed facts which show that he is not entitled to a verdict, it is not proper to award a nonsuit." Clark v. Bandy, 196 Ga. 546 ( 27 S.E.2d 17).
Under the foregoing authorities, the question of whether or not the petition in this case set out a cause of action against the defendants is not before this court. The petition alleged, and the plaintiff proved. that she was a tenant of the defendants; that she gave him notice as to defective flooring in one part of the apartment through his acknowledged agent; and that defective flooring in another part of the apartment caused her to fall and suffer the injuries alleged. She established by proof some of the acts alleged in the petition to be negligence on the part of the defendant, and thus proved her case substantially as laid. Accordingly, the grant of the nonsuit was error.
Judgment reversed. Gardner. P. J., and Carlisle, J., concur.
DECIDED OCTOBER 1, 1954.
Mrs. William Hardin filed an action for damages in the Superior Court of Fulton County, alleging in substance that the defendants. Mark and Pauline Nicholas, owned a certain apartment house in Atlanta, Georgia; that plaintiff was their tenant between September 1 and October 15, 1951; that plaintiff rented three rooms from defendants, consisting of two bedrooms and a kitchen, the flooring of all three rooms being wood; that, in the outer bedroom closest to the hall, there was a cloth rug covering a section of floor approximately six by four feet, the same being a permanent part of the flooring and attached thereto by means of small nails, and having been placed there prior to plaintiff's tenancy by a defendant or his agent; that defendants had an agent, Claude W. Latham, who collected the rent and managed the property for defendants' benefit; that on September 10 plaintiff informed Latham that the flooring in the kitchen was shaky and rotten and needed repairs, to which the agent replied that "an inspection was unnecessary, as all of the flooring had been inspected by officials of the U.S. Government and it was perfectly safe for use"; that defendants also had notice of the defective condition of the flooring in the kitchen by a letter from the Building Inspector of the City of Atlanta on January 1, 1949, and had failed to make the necessary repairs to said flooring; that on September 25 plaintiff was walking across the floor of the outer bedroom toward a cabinet, and as she put her weight on the cloth rug the flooring underneath collapsed, inflicting certain stated injuries upon her. Negligence was alleged against the defendants, in their (a) failure to keep the premises in repair after knowledge of the defective condition of the flooring in plaintiff's apartment; (b) failure and refusal to inspect, discover, and repair the flooring in the outer bedroom after notice of the rotten flooring in the kitchen; (c) failure to inspect, discover, and repair rotten and defective flooring in the bedrooms after notice that said flooring was rotten; (d) concealing the defective and dangerous condition of the flooring in the outer bedroom with a cloth rug and so preventing plaintiff from seeing its unsafe condition; (e) refusal to repair the flooring in the outer bedroom after notice that it was rotten, or to warn plaintiff of such defect; (f) failure to repair the flooring in the kitchen after notice from plaintiff, when, if they had repaired said flooring, they would in the exercise of ordinary care have discovered the defective and rotten flooring in the outer bedroom.
A general demurrer to the petition was overruled, and no exception to that judgment is before this court. The defendants denied the material allegations of the petition relating to negligence, but admitted the tenancy and the agency of Latham.
The defendant Mark Nicholas, on cross-examination, admitted that Latham was his rental agent and rented the rooms in question to the plaintiff and her family. He admitted receiving a letter from the building inspector dated January 1, 1949, which contained a list of defects on the property in question to be repaired, including the following: "replace all decayed framing under house with new; remove all decayed wood flooring on ground and replace with concrete or get 18 inch clearance under all new wood flooring, this being the basement or ground floor." The rooms in question were on this floor. The plaintiff testified in part as follows: "The flooring in the apartment consisted of wood. The kitchen was closest to the hall. The flooring in the outermost bedroom was wood also. There was part of a carpet rug on the floor in this outermost bedroom, the one next to the hall on the right. You ask me if I ever had any conversation with Claude Latham regarding the flooring in the apartment. I complained to Mr. Latham and told him the kitchen floor seemed shaky and all, and he said the whole apartment had been inspected by the U.S. Government and it was substantial for renting, said it was okay. This conversation took place a week or ten days before the fall. I did not know the condition of the flooring in the outermost bedroom. It seemed to be all right. It had a rug over it and I don't know much about it, but it seemed sound and suitable. I used the flooring in the outermost bedroom after my conversation with Claude Latham. On the 25th of September I went to the clothes closet in the right hand corner of the bedroom to get some clothes and as I stepped on — it was about two foot of the flooring — it broke through and I fell through that flooring up to my knee." The plaintiff and her physician testified as to her injuries. The letter from the building inspector was admitted in evidence, and also certain photographs of the bedroom floor. The plaintiff then rested. The defendants made a motion for a nonsuit, which was granted, and that judgment is the subject matter of the exception here.