Nunnally v. Shockley , 91 Ga. App. 767 ( 1955 )

Nichols, J.

1. 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., 30 Ga. App. 462, 464 (2) (118 S. E. 694). “When the tenant is in the exclusive possession and control of the rented premises, the landlord is under no duty of examining the same with a view to ascertaining whether or not repairs are needed, unless requested so to do.” Ocean Steampship Co. v. Hamilton, 112 Ga. 901 (2) (38 S. E. 204); Stack v. Harris, 111 Ga. 149 (36 S. E. 615). And where the landlord has neither possession nor right to possession, he must have reasonable notice of the defective condition of the premises before he can be held liable for injuries resulting to his tenants or their invitee from such defects. Shattles v. Blanchard, 87 Ga. App. 15, 16 (73 S. E. 2d 112); Echols v. Patterson, 60 Ga. App. 372 (4 S. E. 2d 81).

While the defendants may have retained a qualified possession of the steps, halls, and lobby of their building, the defective threshold was located beneath the door to premises which were rented to Crossley and to which he had the right of possession. Code § 61-101. It was not shown that the defendants had any notice of the defect, and hence they were not liable for the plaintiff’s injury caused by their failure to repair the defect.

The fact that the defendants had authorized Trust Company of Georgia and Nunnally Lumber Company to make repairs is immaterial, since the 'duty of the defendants’ agents was no greater than that of their principals: to repair defects on reasonable notice. The defective threshold, being on premises to which the defendant landlords had no right of entry, was not a defect which should have been discovered by them in the exercise of ordinary care.

The verdict for the plaintiff was unauthorized by the evidence, and for this reason the court erred in overruling the motion for a new trial. The rulings complained of in the special grounds of the motion are not likely to recur, and so these grounds of the motion are not passed upon.

Judgment affirmed in part and reversed, in part.

On motion for rehearing the original judgment of affirmance in part and reversal in part is adhered to.

Felton, C. J., Gardner, P. J., Townsend, J., and Carlisle, J., concur. Quillian, J., dissents.