Davis v. Hopkins

• Court: Georgia Court of Appeals
• Citation: Davis v. Hopkins, 50 Ga.App. 654, 179 S.E. 213 (Ga. App. 1935)
• Decision Date: 08 February 1935
• Docket Number: 24063.
• Parties: DAVIS v. HOPKINS.

179 S.E. 213

50 Ga.App. 654

DAVIS v. HOPKINS.

No. 24063.

Court of Appeals of Georgia, Second Division

February 8, 1935

Rehearing Denied Feb. 21, 1935.

Syllabus by Editorial Staff.

In purchaser's suit against vendor for injury sustained by collapse of sewer under improved lot, instruction that measure of damages was difference between market values of property before and after injury held proper notwithstanding purchaser had sold property to another before collapse, where purchaser's grantee had sued purchaser and purchaser had given vendor notice to appear and defend suit.

In purchaser's suit against vendor for injury sustained by collapse of sewer under improved lot, charge that vendor is bound to reveal concealed defect in lot which is known to vendor, or by exercise of ordinary prudence should have been known to vendor, or which ordinarily prudent examination would have disclosed, held correct and applicable.

Violation of city ordinance is negligence per se.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Suit by P. B. Hopkins against W. J. Davis and others. To review the judgment, after his motion for a new trial was overruled named defendant brings error.

Affirmed.

Tye Thomson & Tye, of Atlanta, for plaintiff in error.

G. S. Peck, Paul S. Etheridge & Sons, and Etheridge, Belser, Etheridge & Etheridge, all of Atlanta, for defendant in error.

Syllabus OPINION.

SUTTON Judge.

This case was originally instituted by Hopkins against Davis, Kellum, and the city of Atlanta. Plaintiff set up that their joint acts had damaged him. He sought to join therein two other defendants, Karp and the Atlanta Banking & Savings Company, and to enjoin them from proceeding with certain civil actions against him, growing out of and based on the facts set up by the plaintiff in this case as the basis for his action for damages against the three joint tort-feasors, and asking that all actions be consolidated and determined in this proceeding. He alleged that he had bought a certain lot from Davis and Kellum and erected thereon a residence, and sold the house and lot to Karp; that, after Karp had resided in the house for some time, there occurred a cave-in in the front yard, caused by a sewer under the lot, almost making a complete wreck of the house and lot; that Davis had owned the lot when it was an original ravine, and that this sewer had at that time been defectively constructed and that it had been covered with dirt about 30 feet deep; and that he had bought the lot from Davis without knowing that the sewer was under it. He alleged that the sewer was in use as a part of the sewer system of Atlanta, and that it was the duty of Davis and Kellum and the city to maintain and repair the sewer, and he made various charges of negligence against them, that upon the collapse of the sewer Davis and Kellum procured the city to make repairs, and in so doing additional damage was caused to the house and lot from failure to properly brace the cave-in and excavation, from failure to do the work properly and place adequate foundations and supports under the house, which caused the house to settle and become unsafe and dangerous for occupancy, and that Karp moved out and thereupon brought suit against the plaintiff for damages because of the above facts. Two of the defendants, Karp and the bank, were stricken on demurrer. For a complete statement of the proceedings and the facts set up in the petition, see the opinion and decision of the Supreme Court dealing with the rulings of the trial court upon the various demurrers interposed by the different defendants in Hopkins v. City of Atlanta, 172 Ga. 254, 157 S.E. 473.

Davis in his answer did not deny that...