Garner v. LaMarr

88 Ga. App. 364 (1953)

76 S.E.2d 721

GARNER v. LAMARR.

34648.

Court of Appeals of Georgia.

Decided June 11, 1953.

Robert B. Pullen, for plaintiff in error.

Frank A. Bowers, contra.

*368 CARLISLE, J.

1. Where the plastering of a bedroom ceiling in rented premises is filled with numerous small, lengthy cracks and because of this condition, when taken in connection with the fact that the plastering is of inferior quality, being too brittle and lacking the proper tensile strength so that the keys between the laths of the ceiling will hold the weight of the plastering and there is nothing under the plastering to support it, the ceiling is dangerous, and, while the cracks are patent and obvious, the dangerous condition of the ceiling is not perfectly patent and obvious it cannot be said as a matter of law that tenants who continue to use the bedroom with knowledge of the cracks but without knowledge of the dangerous condition of the ceiling, and who are injured by the falling of the plastering, are guilty of negligence proximately causing the injuries. Wolbe v. Jossey, 42 Ga. App. 612 (157 *365 S. E. 233); Crook v. Foster, 142 Ga. 715 (83 S. E. 670); Miller v. Jones, 31 Ga. App. 318 (120 S. E. 672); Johnson v. Collins, 98 Ga. 271 (26 S. E. 744); Dessau v. Achord, 50 Ga. App. 426 (178 S. E. 396), and cit.

2. "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." Stack v. Harris, 111 Ga. 149, 151 (36 S. E. 615); McGee v. Hardacre, 27 Ga. App. 106 (3, 4) (107 S. E. 563); Turner v. Dempsey, 36 Ga. App. 44 (135 S. E. 220); Cassidy v. Cullens, 36 Ga. App. 469 (137 S. E. 130). And this must be done within a reasonable time. Wolbe v. Jossey, supra.

3. And where facts such as those indicated in division 1 of this opinion are alleged to exist, in an action by the tenant against the landlord for personal injuries, and it is further alleged that the plaintiff tenant rented the premises on January 19, 1952, and beginning in February, 1952, the plaintiff's wife directly notified the defendant landlord that the ceiling was in need of repair, and on each occasion the defendant promised to make the necessary repairs, and these notices were repeated up to and including a notice on March 11, 1952, and still the defendant failed to make any repairs, and, on March 25, 1952, at about 6:30 a. m., while the plaintiff and his wife were still asleep, the ceiling fell causing enumerated injuries to them, and it is alleged that the landlord could, in the exercise of ordinary care, have discovered the dangerous condition of the ceiling by inspection after notice, and that he had had a reasonable time within which to inspect and repair the ceiling a petition containing these allegations is not subject to general demurrer, and the trial court did not err in so ruling.

4. The petition alleges that the relationship of landlord and tenant existed between the plaintiff and the defendant, and the fact that bedroom and bath were rented furnished in a building containing other rooms and the term was on a week-to-week basis does not affirmatively show that such relationship did not exist, so as to change the duty owed by the defendant to the plaintiff from that of landlord to tenant to that of innkeeper keeper to guest. The relationship of landlord and tenant may be for any length of time fixed by agreement. Code § 61-101.

5. None of the special demurrers is meritorious or worthy of discussion.

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