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Lawskills.com Georgia Caselaw
NATIONAL DISTRIBUTING COMPANY v. GEORGIA INDUSTRIAL REALTY COMPANY;
39467.
39468.
Action for damages. Fulton Civil Court. Before Judge Parker.
JORDAN, Judge.
For the reasons stated in the opinion, the trial court did not err in granting the defendant's motion for summary judgment.
This was a suit to recover damages in the. amount of $4,661.65 sustained by the plaintiff when the reservoir tank of a commode in a State liquor warehouse, leased from the defendant by the State of Georgia, broke and flooded the premises, causing damages to the plaintiff's goods stored therein. After certain of its demurrers were sustained and others overruled, the defendant filed a motion for summary judgment with supporting affidavits, and the plaintiff filed its response together with the affidavit of one W. M. Fife in opposition to said motion. The defendant filed a motion to strike the affidavit of Fife which was sustained in part and thereafter the trial court granted the defendant's motion for summary judgment. The main bill of exceptions assigns error on this judgment and on the antecedent rulings adverse to the plaintiff, and the cross-bill of exceptions assigns error on the order overruling certain of the defendant's demurrers to the amended petition.
The State of Georgia, Dixon Oxford, State Revenue Commissioner, was also a defendant to the suit as originally filed, its general demurrer having been sustained by the trial court and that judgment affirmed by this court in National Distributing Co. v. Oxford, 103 Ga. App. 72 (118 SE2d 274).
2. A landlord (in the absence of express contractual provisions) is not an insurer of the leased premises, and while under Code 61-112 the landlord may be liable for injuries arising from defective construction, or from failure to keep the premises in repair (where he is under a duty to repair), said liability is predicated upon actual or constructive knowledge of the defective condition. Ross v. Jackson, 123 Ga. 657 (51 SE 578); Ocean Steamship Co. v. Hamilton, 112 Ga. 901 (38 SE 204). It has been held, however, that where a structure is built by the landlord or under his supervision or direction his knowledge of any and all defects in the original construction thereof will be conclusively presumed. Monahan v. National Realty Co., 4 Ga. App. 680, 686 (62 SE 127); Fuller v. Louis Steyerman & Sons, Inc., 40 Ga. App. 830 (169 SE 508). But if the structure has been built by a predecessor in title of the landlord or some other person not acting under his supervision or direction, before the landlord can be held responsible, it must appear that he knew or by the exercise of ordinary care could and should have known of the improper construction before the tenancy was created. Dobbs v. Noble, 55 Ga. App. 201, supra. In like manner before the landlord can be held responsible for damages occasioned by faulty fixtures or the installation thereof (where the same were not manufactured under the supervision or direction of the landlord) it must appear that he knew or by the exercise of ordinary care could and should have known of the defective condition therein before the tenancy was created. See Sinclair Refining Co. v. Reid, 60 Ga. App. 119, 123 (3 SE2d 121).
The record before the court on motion for summary judgment disclosed that the building in question was constructed for the defendant by an independent contractor, and that the plumbing, including the installation of the fixture in question, was installed by a subcontractor, the reservoir tank having been purchased from the American Standard Plumbing Corporation which according to the record is a manufacturer of high quality plumbing fixtures. Under these circumstances the defendant, not being an insurer of the leased premises, would only be liable if it knew or in the exercise of ordinary care could and should have known of any defect in the plumbing fixture in question or in the installation of the same, at the time it accepted the building and turned over possession to the lessee.
In this connection three of the supporting affidavits accompanying the defendant's motion for summary judgment disclosed that the plumbing fixture in question was personally inspected by the superintendent of the Art Plumbing Company which installed the plumbing and fixtures in the building, by a vice-president of Wesley Associates, the general contractor, and by the architect who accepted the building on behalf of the defendant, and in each of said affidavits the affiants stated that at the time of their personal inspection the plumbing fixture in question was in excellent condition and that there were no defects therein. These affidavits, in the absence of any rebuttal evidence on behalf of the plaintiff, conclusively shown that the defendant could not have observed any defects in the fixture in question, if in fact any existed therein, in the exercise of ordinary care. While the plaintiff filed a response to the motion for summary judgment which was accompanied by the affidavit of one W. M. Fife, said affidavit did not in any way rebut the evidence adduced in behalf of the defendant and did not therefore serve to show the existence of a genuine issue of a material fact. At most, the affidavit of Fife would serve only to indicate the possibility of a latent defect in the fixture which could not have been discovered by the defendant in the exercise of ordinary care.
Fife's affidavit, which was based upon his investigation of an insurance claim arising as a result of the flooding of the premises, consisted largely of hearsay, and did not meet the requirements of Code 110-1205. This Code section provides that supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The trial court did not err, therefore, in sustaining in part the defendant's motion to dismiss said affidavit.
Accordingly, since the affidavits furnished in support of the defendant's motion for summary judgment pierced the allegations of the plaintiff's petition and, being undisputed evidence of the facts contained therein, conclusively showed the absence of liability on the part of the defendant for the damages sustained by the plaintiff under the only possible theory of liability by which the plaintiff could recover against the defendant, the trial court did not err in granting the defendant's motion for summary judgment.
3. The remaining assignments of error in the main bill of exceptions, which contend that the trial court erred in sustaining certain of the special demurrers to the petition, are without merit. Since the judgment on the main bill of exceptions finally disposes of the case, the cross-bill of exceptions is dismissed.
Judgment affirmed on main bill of exceptions; cross-bill dismissed. Nichols, P. J., and Frankum, J., concur.
Greene, Neely, Buckley & DeRieux, Ferdinand Buckley, contra.
DECIDED SEPTEMBER 5, 1962.
Friday May 22 23:00 EDT


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