Jon's et al., executors, vs. Freidenburg & Co.

First, that where a tenant on a lower floor is injured by the flowing of water from the bath-tubs and water-fixtures situated above, he has a right of action against the landlord, if the overflow results from their improper construction, and this liability exists without reference to the occupation of the upper apartment by another tenant. Second. If the construction be skilfully planned and safely executed against overflow, and the upper apartments are rented to, and in the exclusive control and possession of, a tenant, then the landlord is not liable, and the person damaged must look to his co-tenant for his losses, if he can fix negligence upon him.

Third. Where the upper rooms are not rented to, nor in the exclusive control of, a tenant, but both landlord and tenant have the right of possession, and neither the exclusive right, then the landlord is liable to the tenant below.

The law having been thus settled by this court in this case, it is only necessary to inquire whether the landlord had parted with his right of possession and control over the bath-room, fixtures and apartments from whence the damage flowed, as upon this turns the error assigned.

It appears from the testimony that there were in the fifth story two rooms in that end of the building, a north room and a south room, separated from each other "by a partition with windows, a glass partition." At the front side, and southwest corner of the north room is cut off a little vestibule, and bath-room with water-closet, which belonged and were appurtenant to each room, and were put in for the common benefit of both. When the south room was rented to Brown, nothing was said about the water-fixtures, as he had the right to use them by reason of his occupancy of the room. He only wanted one of the rooms, preferred that and rented it, which gave him its exclusive use, with a right simply to use the closet, but not exclusively.

If, then, he had no exclusive right to the closet, there

Jones et al., executors, vs. Freidenburg & Co.

must have been another who shared it with him, and if unrented it could have been none other than the landlord. Unless, therefore, we are to reverse the judgment pronounced in this case, or there be some fact to take it out of the ruling heretofore made, he would be liable to answer in damages.

But it is said that the tenant had the only key to the folding doors opening into a common hall. If that fact were true, it did not give him the right of possession to both rooms and the closet, to the exclusion of the landlord or any tenant to whom he might rent. By the ruling in this case, until the landlord had put the rooms in the exclusive possession and control of a tenant, he could not discharge himself from liability as the landlord, whose duty it was to protect his tenants below from damage from that portion of the building over which he had not parted with control.

Brown rented only one room; from that he could exIclude the landlord but from none other. If the landlord allowed him the use of a key which also led into the other, his use of the key and the room was the landlord's, and not of right his own The liability arises from negligence, and that there was negligence there is no question. It is immaterial whether the landlord did the damage by his own act or that of another. As to the bath-room and closet, the agent of the defendants, in the court below, testifies that Brown was not the tenant of that room only by reason of its being appurtenent to both north and south rooms, that there was nothing said about it on the rental. If not the tenant, and he had the access to it, then he was quoad hoc the agent of the landlord and he must answer for his acts.

The landlord must see to it that he does not imperil the safety of the property of his tenants, by entrusting to another the control and management of business that requires diligence; if he does, and damage ensues, he will

v 60-32

66 508

85 102

66 508

Eetts vs. The State.

not be permitted to reply that because it was not his own personal act, he is not to be held responsible.

We think, therefore, that the decision of the court below, whatsoever may have been the reasons that prompted it, was correct under the ruling in 63 Ga., 612, and must be affirmed.

Judgment affirmed.

90 372

66 508

102 508 66 508 e123 156

BETTS vs. THE STATE OF Georgia.

1. That the court refused to continue a criminal case on account of
the absence of witnesses, but sent for such witnesses and had them
brought into court early in the trial, and they were all sworn and
testified, is no ground for a new trial.

(a.) Where, before the witnesses arrived, the solicitor general agreed
what facts they would testify to, and that he would not controvert
them, upon their coming into court shortly after the trial began,
there was no error in allowing the agreement to be withdrawn.
2. In a trial for murder depending on circumstantial evidence, it hav-
ing been shown that deceased was killed and robbed, and that
shortly before the killing he had bills of certain denominations in
his possession, there was no error in allowing testimony that on
the same day the prisoner had like bills about his person, that he
endeavored to conceal them by throwing them behind him, and
when asked about them denied all knowledge of them.

3. Although at the request of defendant's counsel in a criminal case
the witnesses had been sworn and put under the rule, yet it was no
ground for a new trial that a witness who had remained in the court
room was allowed to testify merely to the correctness of a diagram
he had made of the scene of the homicide, over defendant's ob-
jections.

(a.) Where the son-in-law of deceased was, on application of the so-
licitor general, allowed to remain in court to assist in the prosecu-
tion, the other witnesses having been sworn and put under the
rule, it was not a good ground for new trial that he was permitted
to testify over objections of defendant's counsel.
4. The deceased having been found dead, apparently killed by blows
from a blunt instrument, a maul found near him, which did not
usually remain in that place, his hat found a short distance from
him, and his shirt with blood upon it, were admissible in evi-
dence.

Betts vs. The State.

5. Where counsel for one party elicits from a witness part of a conversation in which he engaged, the opposing party is entitled to have the balance of the conversation related.

6. It is not a good plea in abatement to an indictment that one of the grand jurors who found it had previously been a member of the coroner's jury who sat upon the corpse, and who found that the deceased had come to his death at the hands of the present defendant, and that the killing was murder.

7. The verdict was in accordance with the evidence.

Criminal law.

Continuance.

Practice in the Superior Court.

Evidence. Witness.
Indictment. Jurors.

Before Judge HILLYER. Clayton Superior Court. September Adjourned Term, 1880.

The plea was overruled
The evidence for the
On October 28th, 1880,

Betts was indicted for the murder of H. J. Moore. Upon the call of the case he moved for a continuance, which was refused. He then pleaded in abatement that the foreman of the grand jury who found the true bill had been a member of the coroner's jury who found that Moore came to his death at the hands of this defendant, and that the killing was murder. and the case proceeded to trial. state was to the following effect: Moore, who lived in the country, went to town and sold some cotton, receiving four twenty dollar bills and one. ten, including some silver certificates. On his way home Betts was seen following his wagon and a short distance behind it. Moore drove into his lot and began unhitching his horses. Betts was seen to go toward the lot, then go to the wood-pile and return to the lot with a maul on his shoulder, and shortly after to leave the lot. Within a few minutes Mrs. Moore, seeing the horses standing partly unhitched, went to the lot and found Moore lying on his back, with his skull crushed, his shirt bloody and his hat knocked between the feet of the horses. His head had evidently been crushed with a blunt instrument, and near his head lay a maul. He died in a few minutes after

Betts vs. The State.

being found. A short time afterward, on the same day, the sheriff followed defendant, and on coming up with him called to him. Defendant started toward the sheriff and threw behind him some money, which proved to be $131.00, including four twenty dollar bills and some silver certificates. Upon being questioned about it, he denied all knowledge of it. After being arrested, he told the sheriff that he would tell him all about it when he felt better, but never did so. While in jail, a fellow prisoner heard him pray, and in the course of his prayer he said that he was sorry that he had hurt the old man, as he had gotten into trouble about it.

The evidence for the defense was mainly to show that the prisoner had money amounting to over $100.00 be fore the homicide, and did not obtain that found on him from the deceased; also to show that the prayer of the defendant, testified to by a witness for the state, was not heard by other prisoners near by in the jail.

The jury found the defendant guilty. He moved for a new trial, which was refused, and he excepted.

For the other facts see the decision.

W. W. BLACK; J. S. BOYNTON; W. W. GAY, for plaintiff in error.

CLIFFORD ANDERSON, attorney general; B. H. HILL, Jr., solicitor general for the state.

SPEER, Justice.

Thomas Betts was, at the September adjourned term, 1880, of Clayton superior court, indicted for the offense of murder.

The indictment charged him with having, on the first of November, 1880, with a large maul and other instruments likely to produce death, killed and murdered one Hilliard J. Moore, in said county.

When the case was called for trial the prisoner made a motion to continue his case for the absence of Leonard