Lawson v. Citizens and Southern Nat. Bank of S. C.

• Decision Date: 23 March 1971
• Docket Number: No. 19189,19189
• Parties: A. Elliott LAWSON and Norma Caldwell Lawson, Appellants, v. The CITIZENS AND SOUTHERN NATIONAL BANK OF SOUTH CAROLINA, as Trustee Under theWill of R. B. Cleveland, Respondent.
• Court: South Carolina Supreme Court

Page 206

180 S.E.2d 206

255 S.C. 517

A. Elliott LAWSON and Norma Caldwell Lawson, Appellants, v. The CITIZENS AND SOUTHERN NATIONAL BANK OF SOUTH CAROLINA as Trustee Under theWill of R. B. Cleveland, Respondent.

No. 19189.

Supreme Court of South Carolina.

March 23, 1971.

E. W. Johnson, of Johnson & Smith, Spartanburg, for appellants.

Roy McBee Smith, Spartanburg, for respondent.

BRAILSFORD, Justice.

The plaintiff A. Elliott Lawson purchased a lot in a residential subdivision from the defendant, The Citizens and Southern National Bank of South Carolina, as Trustee, the developer of the property. He and Mrs. Lawson, his co-plaintiff, built a residence on the lot, which they occupied for a time as a home. Shortly thereafter, the husband and wife were divorced, and the residence was conveyed to her in partial discharge of his obligation to support her and the minor children of the marriage. Upon discovering that the dwelling had been built over a ravine, which had been filled with unsuitable material by the defendant and capped with clay, and upon the occurrence of consequent damage to the building, Mr. and Mrs. Lawson joined in bringing this action for actual and punitive damages against the developer.

The defendant demurred to the complaint on five stated grounds which, according to the agreed case, challenge the pleading for insufficiency of facts to state a cause of action and for improper joinder of several causes of action. The circuit court sustained the demurrer, and plaintiffs have appealed to this court.

The statement of plaintiffs' cause of action has suffered from failure of the draftsman to settle upon a remedy to be invoked for the wrong of which plaintiffs complain. The complaint carefully avoids making a choice. Instead, it jumbles allegations appropriate to an action for deceit with allegations appropriate to an action for negligence. However, it is well settled that a plaintiff need not label his cause of action, and these deficiencies do not make the complaint vulnerable to demurrer. When attacked by demurrer for insufficiency of facts, a complaint must be liberally construed in favor of pleader and sustained if facts alleged, and inferences reasonably deducible therefrom, entitle plaintiff to any relief on any theory of the case, even though different from that on which he may have supposed himself entitled to recover. Everett v. White, 245 S.C. 331, 140 S.E.2d 582 (1965); Turbeville v. Gordan, 233 S.C. 75, 103 S.E.2d 521 (1958); 15 West's South Carolina Digest, Pleading, k204 (1952).

Here the complaint charges, by specific allegation or reasonable inference, that the defendant in developing and subdividing its land into lots to be sold for residential use only, filled an enormous gulley with stumps and other rubble to a depth of twenty to twenty-five feet and concealed this fill by covering it with soil. A large part of the lot sold to Mr. Lawson was comprised of this filed area, which the defendant knew was unstable and unsuited for the intended purpose. Knowing that the purchaser was ignorant of the condition, which was not apparent upon inspection, and knowing its materiality, the defendant failed to disclose the truth.

'Unquestionably, the concealment of material facts that one is, under the circumstances, bound to disclose may constitute actionable fraud. Indeed, one of the fundamental tenets of the Anglo-American law of fraud is that fraud may be committed by a suppression of the truth (suppressio veri) as well as by the suggestion of falsehood (suggestio falsi). It is, therefore, equally competent for a court to relieve against fraud whether it is committed by suppression of the truth--that is, by concealment--or by suppression of falsehood.' 37 Am.Jur. (2d), Fraud and Deceit, Sec. 144, p. 196 (1968).

We have no precedent in our decisions involving nondisclosure of an artificially created, and concealed, unstable condition of land sold. However, courts elsewhere, applying settled principles, have consistently found a duty to disclose in landfill cases on analogous facts. 37 Am.Jur. (2d), Fraud and Deceit, Sec. 160 (1968); Annot., 80 A.L.R. (2d) 1453 (1961), and supplementary material.

We are...