Esther L. Martin sued Mrs. C. P. Medlin in the Superior Court of Fulton County for damage to her property. She alleged that she is the owner of a certain house and garage in Atlanta, Georgia, which was residential property registered with the Office of Price Administration as a one-family domicile for a rental of $37.50 per month; that at the time the defendant rented said property it was in excellent condition; that under the agreement as it existed on August 29, 1942, the defendant was a tenant at will of the petitioner and was obligated under the terms of the rental contract to make necessary repairs at her own expense and deduct the sums so paid from her monthly rental; that she did deduct sums from her monthly rentals, representing that they were used for repairs, but in fact did not so use the money, but converted it to her own use and allowed the property to waste away. The defendant admitted that she was a tenant at will, but denied the remaining allegations of the paragraph alleging she was a tenant at will of the petitioner. She also denied the allegations to the effect that she had illegally subrented parts of the premises, illegally turned it into business uses, illegally installed defective and dangerous wiring, illegally converted the premises into a so-called rooming house and allowed it to become known as a house of assignation, or that she had allowed the premises to become so run-down and filthy that they were unfit for human habitation, or that she had left water bills outstanding at the termination of her tenancy which the plaintiff had been forced to pay in order to prevent the services from being discontinued.
Upon the trial of the case, the evidence of the plaintiff showed substantially: that the house in question had been the property of Mrs. Lyons, the plaintiff's mother, until her death in July of either 1946 or 1947 (the plaintiff giving both dates at different times during her testimony); that previous to that time it had been owned jointly by Mr. and Mrs. Lyons, and at the death of Mr. Lyons in either 1935 or 1945 (both dates being stated) it went to Mrs. Lyons; that at Mrs. Lyons' death it went jointly to the plaintiff and her sister, and that the plaintiff subsequently purchased her sister's interest. In reply to a question as to when she purchased this interest, she replied, "My mother died in July of 1947, it was around in August of 1948 I think at a time that I had to make a loan on the property." It therefore appears from one phase of this testimony that the plaintiff owned only a half interest in the property at the time this suit was filed on June 23, 1948. The plaintiff further testified that the defendant rented the premises in 1938 under an oral agreement between herself and Mrs. Lyons, the plaintiff's mother, for $40 a month; that Mrs. Lyons registered the property with the Office of Price Administration in 1942; that the defendant told Mrs. Lyons at that time she could not afford to pay $40 and they entered into a new agreement by which the defendant paid Mrs. Lyons $37.50; that Mrs. Lyons received the benefits of the rents until her death in July, 1946; that she paid all the taxes and received all the benefits of the property until the time of her death; that she collected the rents herself for some time but that for a year or two immediately preceding her death the plaintiff collected the rents and looked after the property for her, and that Mrs. Lyons wrote the defendant a letter in March, 1946 concerning the payment of the rent. The defendant, under cross-examination as opposite party, testified that, after Mrs. Lyons' death in 1946, she looked to the plaintiff as her landlord.
The elements of damage were substantially proved, as to the physical condition of the house, by an attorney, a building contractor, an electrical contractor, and a pest eradicator, all of whom testified as to the condition of the property on or about August, 1947, immediately after the plaintiff moved in. The plaintiff testified to the excellent condition of the premises in 1938 when the defendant moved in. There was no testimony as to any change in the condition of the property between the time the plaintiff acquired title and the time of the suit, nor was any testimony introduced as to the water bill alleged to have been paid by the plaintiff.
At the conclusion of the plaintiff's evidence the court granted a nonsuit, and this judgment is assigned as error.
(After stating the foregoing facts.) Construing the evidence most favorably to the plaintiff, as must be done on a motion for a nonsuit, it appears that the defendant rented the premises in 1938 from the plaintiff's mother; that the plaintiff was neither the landlord nor the owner of the property until the death of her mother in July, 1946; that after the death of the plaintiff's mother the defendant recognized the plaintiff as her landlord, and that she was at that time, and until she bought her sister's interest, a half owner of the premises. There is no evidence whatever from which it might be inferred whether the damage complained of occurred before or after the death of the former owner, Mrs. Lyons, and, if any of the damage occurred after her death, what part occurred during the time the plaintiff and her sister were tenants in common and what part occurred after the plaintiff bought out her sister's interest (there being some ambiguity in the record as to this date also, from which it might be inferred that the plaintiff bought her sister's interest in 1947 and executed the loan at that time, when the repairs were made, rather than in August, 1948, as she testified.) This being the case, the testimony is perfectly consistent with the fact that the damage was done by the tenant between the years 1938 and 1946, or 1947, when Mrs. Lyons was the owner and landlord, or between the time of her death and the time in 1947 when the tenant vacated the premises, or that it occurred partly during the first period and partly during the second. Facts which are consistent with either of two contradictory theories prove neither. Woodruff v. American Mutual Liability Ins. Co., 67 Ga. App. 554 (21 S. E. 2d, 298); Weathers Bros. Transfer Co. v. Jarrell, 72 Ga. App. 317 (33 S. E. 805). In consequence, unless the plaintiff had a right of action for damage occurring during the lifetime of her mother she has not established any right to sue for damage inflicted at that time. Code 3-109 states as follows: "An action for a tort shall in general be brought in the name of the person whose legal right has been affected, and who was legally interested in the property at the time the injury thereto was committed and against the party committing the injury, either by himself, his servant or agent in his employment." In Smith v. Central of Ga. Ry. Co., 22 Ga. App. 572 (96 S. E. 570) at page 576 the rule is set out as follows: "It appearing that the last of the alleged acts of
trespass was before the petitioner became the owner of the land, the right of action therefore, if any, was in her predecessor in title. 'A vendee of land upon which a trespass had been committed while it was the property of his vendor has no right of action against the trespasser for damages thus occasioned, which were recoverable by the vendor; aliter, as to new and additional damages growing out of a continuation of the original trespass after the vendee acquired title.' Allen v. Macon, Dublin & Savannah R. Co., [107 Ga. 838 (4)]; Green v. South Bound R. Co., 112 Ga. 849 (38 S. E. 81); Civil Code (1910) 4458. The original petition showed no 'new and additional damages growing out of a continuation of the original trespass after the vendee acquired title.' " See also Wrightsville & Tennille R. Co. v. Holmes, 85 Ga. 668, 671 (11 S. E. 658); Southern Ry. Co. v. Leonard, 58 Ga. App. 574 (199 S. E. 433) at page 584; Beasley v. Central of Ga. Ry. Co., 17 Ga. App. 615 (87 S. E. 907). The plaintiff inherited an interest in the property at the time of her mother's death, and took it subject to its condition at that time. Further, she failed to prove her case as laid, for she alleged that under an agreement entered into August 29, 1942, the defendant became a tenant at will of the plaintiff, whereas her testimony was that on that date the defendant became a tenant at will of Mrs. Lyons.
The trial court did not err in granting the motion for a nonsuit.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.