
    CLEMENTS v. BLANCHARD.
    Where a dwelling-house containing a cellar was rented on monthly payments, and because of a leakage through the wall a pond of filthy water accumulated in the cellar, rendering the house unfit for a home, and the landlord refused to repair the house, he will not be liable in damages to the tenant on account of the tenant’s sickness sustained three or four months after the refusal to repair, which sickness is attributed to the unsanitary condition of the house. The tenant by remaining in the untenantable premises was guilty of such negligence as barred á recovery.
    February 18, 1914.
    Action for damages. Before Judge Bell. Eulton superior court. October 24, 1912.
    
      G. G. Battle and Hewlett & Dennis, for plaintiff.
    
      Slaton & Phillips, for defendant.
   Evans, P. J.

Mrs. J. D. Clements brought an action against W. H. Blanchard, claiming $5,000 damages for personal injuries. She alleged: that about twelve months prior to the filing of her suit she rented from the defendant a dwelling-house having a cellar, and has since occupied it as á home; that at the time the house was rented the cellar was dry; that about seven or eight months after she moved into the house the surface-water washed out the dirt along and outside of the west wall of the cellar, causing the wall to leak and allowing the water to flow into the cellar and pond therein, creating a filthy, muddy, and unhealthy basin of water from which arose noxious odors and gases, rendering the house unfit to live in as a home, that she promptly complained to the landlord of the .defective 'condition, requesting him to repair and restore the premises to a condition suitable for occupancy, but he failed and refused to do so; that about three months thereafter she was stricken with malarial fever and confined to her bed as a result of the defendant’s failure to repair the premises; that she paid a certain sum monthly as rent of the premises for each anct every month she had lived in the house; and that it was negligence on the part of the defendant to'fail and refuse to repair the premises, after having notice of the dangerous and unhealthy condition of the same. Her petition was dismissed on general demurrer, and she excepted.

The statute (Civil Code of 1910, § 3699) requires a landlord to keep the rented premises in repair, and makes him liable for all substantial improvements placed upon them by his consent. Where the premises at the time of the rental contract are in a suitable condition for the purposes for which they were rented,- and after-wards become unsuitable and 'damages result to the tenant in consequence of the untenantable condition of the rented premises, the landlord is liable therefor, provided he had notice of the defective condition of the premises and failed after a reasonable time to make the necessary repairs, and provided also that the tenant has not been guilty of such negligence as to bar a recovery. Whittle v. Webster, 55 Ga. 180. As was said in Stack v. Harris, 111 Ga. 149, 151 (36 S. E. 615), "When rented premises become out of repair, it is the duty of the tenant to notify the landlord of this fact, and also to abstain from using any part of the premises, the use of which would be attended with danger.” The plaintiffs petition shows that three months prior to her illness the water accumulated in the cellar because of the failure to repair the wall, and that the effect of the ponding of the water therein was to create such a condition as to render the house unfit to live in as a home. With knowledge that the house had been rendered unfit because of the water standing in the cellar, and after the landlord’s positive refusal to repair, nevertheless the tenant continued to remain in the house. She could either have moved out and sued the landlord for damages for failure .to keep the premises in repair, or, if the repairs were necessary to render the house tenantable, she could have caused the necessary repairs to have been made, and set them off against the landlord’s claim for rent. Her continuance in the house for so long a time after the house was rendered.untenantable and the landlord had refused to repair constitutes-such negligence as bars her of recovery. Donehoe v. Crane, ante, 224 (80 S. E. 712). There was no error in dismissing the petition on demurrer.

Judgment affirmed.

All the Justices concur, except Lumpkin, J., dissenting, and Hill, J., disqualified.  