1. By reason of the provisions of Code (Ann. Supp.) 81-1001, the exceptions to the sustaining of the special demurrers to the petition are not subject to review by this court, as the trial court, by the terms of the order sustaining the demurrers, allowed time within which to amend. Sellers v. City of Summerville, 88 Ga. App. 109
(76 S. E. 2d 99), and citation.
2. The petition failed to show any duty owed the plaintiff by East Atlanta Realty Company, and the trial court did not err in sustaining the general demurrer and dismissing the petition as to that party defendant.
3. The petition stated a cause of action against the defendant Pritchett individually, and the trial court erred in sustaining the general demurrer and dismissing the petition as to him.
The plaintiff brought an action for damages for injuries sustained when one of the steps of the house in which she lived collapsed under her weight and caused her enumerated personal injuries. Her action was lodged originally against the owner of the premises, the owner's alleged general agent, and the contractor who had constructed the house and steps. By amendment, the plaintiff struck the name of the contractor as a party defendant. The owner of the premises, who was out of the State at the time the action was brought, was served through his alleged general agent, but he made no appearance, and no defense of any description was filed in his behalf by his alleged general agent. The alleged general agent demurred to the petition generally and specially. Certain of the special demurrers were sustained with leave granted by the court to the plaintiff to amend. A composite of the material allegations of the petition before and after the ruling on the special demurrers follows. . Those portions of the allegations which are enclosed in parentheses were struck on demurrer; those portions which are italicized were added by amendment following the ruling on the special demurrers. (1) The defendants herein are E. S. Pritchett, individually, and East Atlanta Realty Company, a partnership composed of E. S. Pritchett and J. H. Pritchett, residents of Fulton County, and William L. Jenkins, a resident of DeKalb County, and said William L. Jenkins is temporarily residing without the State of Georgia, is in Germany, and may be served by service (upon his general agent, E. S. Pritchett,) and this court has jurisdiction of said parties. (2) The defendants have individually and jointly damaged the plaintiff in the sum of $10,000. (3) On March 30, 1953, A. L. Hearing, a son of the plaintiff, rented from the defendant E. S. Pritchett, individually, and East Atlanta Realty Company, a partnership composed of E. S. Pritchett and J. H. Pritchett, a dwelling house located in Atlanta for a home and he was occupying the premises with his wife, the plaintiff, and other members of his family at all times herein mentioned. (4) There is connected to the rear of the house a small porch and a set of stairs, containing eleven steps leading from the porch to the ground, a vertical distance of approximately ten feet. The stairs and the step treads thereof are of wood. The step treads are 9 1/2 inches wide, and only 9/16 of an inch thick, and they are made of No. 2 yellow pine lumber. These stairs were constructed by L. A. Evans as part of the construction of the house. (5) (When constructing the steps, Evans knew, or in the exercise of ordinary care ought to have known, since he is a builder of houses and has built many homes, that the step treads were substandard and dangerous to the plaintiff and anyone else who might use them for the reason that in order to be safe stair treads should be constructed of two-inch thick material of No. 1 grade, and this is always done by builders in the exercise of ordinary care and this is universally recognized by builders as a minimum standard of safety, and it was the duty of Evans to use wood two inches thick for the step treads, which duty he wilfully violated by knowingly using substandard wood, which was in wilful and utter disregard of the safety of the plaintiff and others who might use the stairs.) (6) At all times herein mentioned the defendant, William L. Jenkins, was the owner of the house, and that sometime prior to March 30, 1953, on an exact date unknown to the plaintiff, but well known to the defendant, Jenkins, who was about to leave the United States for Germany, requested the defendant,
E. S. Pritchett, to take over the management of the property, and to handle all matters in regard to the property, and Pritchett agreed orally to do so and agreed to acquire tenants for the property, using his own discretion as to the tenant, to rent the property at a rental determined by himself, to collect rents from the tenant, to give receipts in his own name, to use the proceeds from the rental to repair the property and to make repairs to the property and to make monthly payments on the notes which Jenkins owed to the Atlanta Federal Savings and Loan Association, and to share the excess of rentals as profits with Jenkins, and to all other things in the management of the property which Jenkins could do by himself, and act as the alter ego of Jenkins all of which was agreed to by Jenkins and [Pritchett] took immediate charge and control, direction and management of said property by proceeding to acquire tenants for the property, using his own discretion as to the tenant to whom to rent the property at a rental determined by himself, to collect rents from the tenant, to give receipts in his own name, to use the proceeds of said rentals to repair the property and to make repairs to the property and to make the monthly payments on the notes owed by, Jenkins to the Atlanta Federal Savings and Loan Association, said notes being secured by a, loan deed on said property, and the excess of the rentals after payment of expenses was shared as profits by Jenkins and Pritchett, or was kept by Pritchett, it not being known exactly which by the plaintiff, but it is well known to the defendants, and management and control of the property was jointly shared by the defendants Jenkins and Pritchett. (7) (Evans in the exercise of ordinary care should have known in providing substandard stair treads, that such treads would not withstand the rain and elements, as if he had used safe materials, as set forth above, and should have known, as he did build the stairs for the purpose of being walked on by tenants and invitees of tenants, that the stairs were dangerous, and a mantrap.) (8) Prior to renting to Hearing, defendant Jenkins lived in the house, and had knowledge that the wood used to make the step treads was substandard and dangerous to the plaintiff and anyone else who might use the stairs, for the reason that stair treads, in order to be safe, should be constructed of two-inch material, No. 1 grade, and the defendant knew that the stair treads would not meet this minimum standard of safety and knew that they had left the step treads unpainted and exposed to the weather, and knew that if they were exposed to the weather without being painted that it would contribute immensely to weakening the steps so that they would be unable to hold up a grown person in a much shorter time, and the defendant Pritchett also had knowledge of the substandard wood used to make the step treads, and both the defendants in the exercise of ordinary care should have painted the stair treads to keep the wood from being exposed to the weather, but the defendants completely failed to paint the steps, but left them exposed to the weather, contributing immensely to weakening the steps so that they were unable to hold up a grown person in a much shorter time. (9) On May 7, 1953, at about 5:50 p.m. the plaintiff started down the stairs and when she reached the-sixth step from the bottom a piece of the step tread of that sixth step approximately four inches by sixteen inches on the front left-hand side of the step tread broke away from the remainder of the step tread when the weight of the plaintiff's foot was placed thereon. She fell the remaining five steps with great force and violence and was caused to suffer injuries which will be more fully described hereinafter. (10) The defect herein complained of was latent in character and existed at the time the tenancy was created, but could have been discovered by the defendant in the exercise of ordinary care for the reason that at the time the tenancy was created, the defendants were well acquainted with the type of material necessary for a safe construction of said step and knew that the step which was only 9/16 of an inch thick and made of No. 2 grade yellow pine lumber instead of two inch thick material, No. 1 grade lumber, and the defendants were well acquainted with the size and type of material used in the step and knew that if the steps were left unpainted and exposed to the weather, the rain and elements would immensely weaken the steps so that they would be unable to hold up a grown person in a much shorter time and notwithstanding such knowledge the defendants failed to remove the defective step, failed to paint it or keep it in repair. (11) The plaintiff knows nothing of building material or construction of houses and did not know that the steps were constructed of
faulty material and were dangerous, and the steps appeared safe to her, and she was in the exercise of ordinary care for her own safety at the time, and could not by the exercise of ordinary care have discovered the defects herein complained of, while all of the defendants were thoroughly familiar with houses and their construction, knew, or, by the exercise of ordinary care, could have known that the steps were dangerous and unsafe for use by the plaintiff or others, said steps being latently weak, and unable to support the plaintiff, and said steps being made of substandard and dangerous material in that they were only 9/16 of an inch thick and made of No. 2 yellow pine lumber when minimum safety required that the steps should be constructed of two-inch thick lumber, No. 1 grade, and for the further reason that the steps were left unpainted for a long period of time prior to renting the premises as set forth above and were exposed to the rain and weather so that they had become weak and unable to hold plaintiff's weight, all of which the defendants knew. (12, 13, 14, 15) The plaintiff suffered enumerated injuries as a result of her fall, suffered and will continue to suffer certain pain from those injuries, incurred certain expenses as a result of her injuries, and she has a life expectancy of 23.17 years and although she was capable of earning $30 per week prior to her injuries she is now unable to perform any work at all. (16) The injuries and damage to the plaintiff were caused solely, proximately, and directly by the concurrent negligence of the defendants. (17) (Evans was negligent in constructing the step, which broke under the plaintiff, in an unsafe and dangerous manner, by his use of material which was substandard, being wood of No. 2 yellow pine lumber 9/16 of an inch thick, 9 1/2 inches wide, when the minimum standard of safety of such construction required wood two inches thick of No. 1 grade.) (18) The defendant Jenkins and Pritchett were negligent as follows:
(1) In failing to paint said step, and keep said step painted to protect the wood from the weather, in order to keep it from weakening faster. (2) (In maintaining a mantrap.) (3) In not warning the plaintiff that the step was of unsound construction. (4) In not warning the plaintiff that the steps were dangerous and not safe to be used by the plaintiff. (5) (In maintaining the step in a dangerous and unsafe condition.) (6) In failing to repair and replace the step with a safe and sound step. (7) (In failing to exercise ordinary care to discover the latent defect in the step.) (8) In failing to inspect the steps, discover the defects therein, and make them safe for use before renting the property for the use herein alleged. (9) (In renting the property with the step in the aforesaid condition.)
Following the plaintiff's amendment to the petition, the Pritchetts renewed their demurrers, both general and special. The trial court sustained their general demurrer and dismissed the petition as to the defendant Pritchett, individually, and East Atlanta Realty Company, a partnership composed of E. S. Pritchett and J. H. Pritchett.
In the present writ of error, the plaintiff assigns error on the sustaining of certain of the Pritchetts' special demurrers prior to her amendment, and upon the sustaining of the Pritchetts' general demurrer following her amendment, and the dismissing of her petition.
1. Headnote 1 is self-explanatory.
2. The parties defendant designated in the original petition were L. A. Evans, a building contractor who had constructed the steps on which the plaintiff is alleged to have been injured, William L. Jenkins, the owner of the premises, and E. S. Pritchett, doing business as East Atlanta Realty Company. Early in the proceedings Evans was eliminated by the plaintiff as a party defendant. By amendment, E. S. Pritchett, doing business as East Atlanta Realty Company, was eliminated and, instead of being sued in that capacity or under that designation, he was sued as E. S. Pritchett, individually, and East Atlanta Realty Company, a partnership, composed of E. S. Pritchett and J. H. Pritchett, was added as a party defendant. The trial court on general demurrer dismissed the action against E. S. Pritchett individually, and East Atlanta Realty Company. The bill of exceptions presents the questions of the propriety of dismissing the action as to Pritchett, individually, and as to East Atlanta Realty Company, the partnership.
In order for one to be liable for the injuries to another, it must appear that the one owed a public or private duty to the other and, as a result of the breach of that duty or duties, the one was injured. Reid v. Humber, 49 Ga. 207; Southern Ry. Co. v. Grizzle, 124 Ga. 735 (53 S. E. 244, 110 Am. St. R. 191). The petition contains no averments of fact giving rise to any duty owned by East Atlanta Realty Company to the plaintiff with reference to the condition of the premises. When the petition is construed most strongly against the pleader, as it must be on demurrer, it appears that the only connection East Atlanta Realty Company had with the premises was that the plaintiff's son rented the premises from E. S. Pritchett, individually, and East Atlanta Realty Company. It nowhere appears that East Atlanta Realty Company assumed any other responsibility toward the premises. The contract of principal and agent wherein the agent is alleged to have assumed the management, maintenance, and control of the premises for designated purposes, is alleged to have been made between Jenkins, the owner, and E. S. Pritchett; and, since it is not alleged that the contract was made with Pritchett as a member of the partnership, it must be assumed that the contract was made with him individually--one of the capacities in which he was sued. It follows that there was no error in dismissing the case as to East Atlanta Realty Company. See, in this connection, Risby v. Sharp-Boylston Co., 62 Ga. App. 101 (7 S. E. 2d 917).
3. "An agent who undertakes the sole and complete control and management of the principal's premises is liable to third persons, to whom a duty is owing on the part of the owner, for injuries resulting from his negligence in failing to make or keep the premises in a safe condition." 2 Am. Jur. 263, 334; Sharp-Boylston v. Bostick, 90 Ga. App. 46
(81 S. E. 2d 853).
It is averred in the petition as amended that, by agreement between the owner Jenkins and the defendant Pritchett, Pritchett agreed to take over the management of the property in question, and to handle all matters in regard to the property, that is, he agreed to acquire tenants for the property, to rent the property at a rental determined by himself, to collect the rents, to give receipts therefor in his own name, to use the proceeds from the rental to make repairs to the property, and to do all other things in the management of the property which Jenkins himself could do. It is further alleged that Pritchett took immediate charge and control, management and direction of the property by proceeding to acquire tenants, to rent the property at a rental determined by himself, to collect the rents, to give receipts in his own name, to use the proceeds from the rentals to repair the property, and to make repairs to the property. Under these allegations and the rule stated in Sharp-Boylston v. Bostick, supra, the defendant Pritchett's liability is to be determined by the same rules as would obtain if the suit had been solely against the owner of the premises and there had been no question of agency involved. (The question of the defendant Jenkins' liability as owner of the premises is, of course, not before this court at this time, as he is not a party to this appeal.)
By the averments of the petition the defendant Pritchett is charged with knowledge that the steps in question were constructed of substandard lumber and would not meet the minimum requirements of safety, in that he knew that the step treads were constructed of No. 2 yellow pine lumber, 9/16 of an inch thick and that he knew that safe construction required that the step treads be constructed of No. 1 yellow pine lumber, 2 inches thick. He is also charged with knowledge that the steps were left unpainted and exposed to the rain and elements and with knowledge that to leave the step treads in that condition would contribute immensely to the weakening of the steps. The plaintiff further charged that the defendant Pritchett knew, or in the exercise of ordinary care should have known, that the steps, at the time the tenancy was created, were weakened and unable to hold up the weight of a grown person, and that the defendant Pritchett was negligent in failing to warn the plaintiff that the steps were of unsound construction, dangerous and unsafe for her to use, was negligent in failing to repair and to replace the step with a sound and safe step, and was negligent in failing to inspect the step, in failing to discover the defects therein, and in failing to make them safe for use before renting the property.
The plaintiff alleged that she knew nothing of the construction of the house, that she did not know that the steps were constructed of faulty material and were dangerous, that the steps appeared safe to her, and she was in the exercise of ordinary care for her own safety at the time she was injured, and could not by the exercise of ordinary care have discovered the defects complained of.
The allegations of the petition show actual knowledge on the part of the defendant Pritchett that the step was constructed of faulty material, and constructive knowledge on his part that the step had become weakened by being left unpainted and exposed to the elements, and constructive knowledge on his part that, at the time the premises were rented to the plaintiff's son, the steps were dangerous and unsafe for use. The defect is alleged to have been latent, and there is no allegation in the petition from which it can be inferred as a matter of law that the step was so obviously dangerous as to put a prudent person on notice of the danger. The petition, therefore, stated a cause of action against the defendant Pritchett, and the trial court erred in sustaining the general demurrer thereto. The defendant knew, or in the exercise of ordinary care should have known, of the previous existence of the alleged defects at the time the property was leased to the plaintiff's son; and this being so, his failure to remedy the defects or warn of their existence constituted a breach of duty owned by the defendant to invitees on the premises. Ross v. Jackson, 123 Ga. 657 (51 S. E. 578); McGee v. Hardacre, 27 Ga. App. 106 (107 S. E. 563).
In order that what has been ruled with reference to the defendant Pritchett's liability shall be absolutely clear on the trial of the case, we recapitulate somewhat on that point. In view of the decision in Risby v. Sharp-Boylston Co., supra, it appears that, where a landowner gives an agent sole authority to manage the property, including renting and repairing, and where it is specifically alleged that the agent agreed to and did in fact assume such authority for the landowner, the agent may be held individually liable for a violation of this duty, not as an agent, but as an independent tortfeasor whose breach of duty owed to a third person is the actionable negligence, and agency enters into the question only to the extent that the contract of agency, rather than some other legal or statutory obligation, gives rise to the duty which the agent owes to such third person. A. C. L. R. Co. v. Knight, 48 Ga. App. 53 (171 S. E. 919). When this duty arises (by virtue of the contract), then the agent may be liable for either misfeasance or nonfeasance, although he could not, as an agent, be held liable for mere acts of nonfeasance. Owens v. Nichols, 139 Ga. 475 (1) (77 S. E. 635); Kimbrough v. Boswell, 119 Ga. 201 (45 S. E. 977).
It should be emphasized that, although this ruling puts the agent in the owner's shoes, it does not mean that their liability would be identical, for this must depend upon the proof elicited on the trial of the case. The agent, when he rented the premises to the plaintiff, had the landowner's duty to keep the premises in repair, and liability against the landowner is predicated on his knowledge that the premises were not reasonably safe when he rented them. In Elijah A. Brown Co. v. Wilson, 191 Ga. 750, 751 (13 S. E. 2d 779) the Supreme Court, in reversing the Court of Appeals, held: "Ordinary care in the fulfillment of the landlord's duty to keep the premises in repair does not, however, embrace an affirmative duty to make such an inspection of the premises as will disclose the existence of any and all latent defects which may actually exist therein. This would be but to place upon the landlord an absolute duty, not implicit in the statute, to rent premises free from latent defects. It follows that a proper application of the landlord's duty to keep the premises in repair does not, under any theory, result in making the landlord liable for a latent defect in the premises simply because it existed at the time of the lease." In that case an allegation that "the flooring was rotten and decayed, and the sills supporting the flooring because of long use had become decayed," was held to be insufficient to put the landlord on notice of the latent defect.
In the present case, the allegation that the owner had lived in the house and knew of the construction and condition of the steps cannot be charged against the agent, as the agent was not so informed by the landowner and instructed to repair them. As to notice alleged against the agent, the constructive knowledge alleged against him that the step had become weakened by being left unpainted and exposed, and his constructive knowledge that the steps were dangerous and unsafe to use, would not be sufficient to support a recovery against him, under the authority of the Brown case, unless the allegation that in the exercise of ordinary care he should have known these things is sustained by proof of the further allegation that he had actual knowledge of the defect because he had knowledge that the steps were constructed of faulty material, which would be likely, over the length of time it was in use, to become dangerous and unsafe. Proof that the owner had such knowledge would not be sufficient to cause liability to attach to the agent. If, on the other hand, as alleged, the agent was in sole control, both in renting, managing, and repairing the premises, and he did have actual knowledge that the steps, by reason of their faulty construction, were likely to collapse, then a duty to inspect them to ascertain their condition would devolve upon him and, on failure to perform this duty, he would be liable to an invitee on the premises who was injured by the step collapsing.
Judgment affirmed in part and reversed in part. Gardner, P. J., and Townsend, J., concur.