Kimball v. Morcock

196 S.E. 125, 57 Ga. App. 750, 1938 Ga. App. LEXIS 379

• Court: Court of Appeals of Georgia
• Decided: February 17, 1938
• Docket: 26671
• Status: Published

Opinion

Felton, J.

A suit against a landlord for injuries to an invitee resulting from a fall through a rotten floor, was fatally defective in that it did not allege that the landlord constructed the floor (Dobbs v. Noble, 55 Ga. App. 201 (3), 189 S. E. 694), or that the defective condition, of that part of the floor through which the plaintiff fell could have been discovered by the exercise of ordinary care in the repairing, within a reasonable time, of the defective floor, of which notice had been given to the landlord. Gledhill v. Harvey, 55 Ga. App. 322 (190 S. E. 61); Godard v. Peavy, 32 Ga. App. 121 (122 S. E. 634). So much of the petition as sought recovery because of an injury due to the use of that part of the floor which the plaintiff knew was rotten, was defective', for the reason that a tenant or his invitee can not recover for such injuries, because it is his duty to refrain from using parts of the premises which he knows are defective and dangerous. Jackson v. Davis, 39 Ga. App. 621 (147 S. E. 913); Yancey v. Peters, 49 Ga. App. 128 (174 S. E. 182); Ball v. Walsh, 137 Ga. 350 (73 S. E. 585); Donehoe v. Crane, 141 Ga. 224 (80 S. E. 712); Gallovitch v. Ellis, 55 Ga. App. 780 (191 S. E. 384). The court properly sustained the general demurrer to the petition.

Decided February 17, 1938. Rehearing denied April 4, 1938. William A. Thomas, for plaintiff. J ames B. Davis, for defendant.

Judgment affirmed.

Stephens, P. J., .and Sutton, J., concur.