Rogers v. Scyphers

• Decision Date: 09 April 1968
• Docket Number: No. 18778,18778
• Citation: 161 S.E.2d 81,251 S.C. 128
• Court: South Carolina Supreme Court
• Parties: Doris A. ROGERS, Respondent, v. Clayton SCYPHERS, Individually, Clayton Scyphers, as agent for Industrial LifeInsurance Company, and Industrial Life Insurance Co., Appellants.

Page 81

161 S.E.2d 81

251 S.C. 128

Doris A. ROGERS, Respondent, v. Clayton SCYPHERS, Individually, Clayton Scyphers, as agent for Industrial LifeInsurance Company, and Industrial Life Insurance Co., Appellants.

No. 18778.

Supreme Court of South Carolina.

April 9, 1968.

West, Holland & Furman, Camden, Charles B. Elliott, Columbia, for appellants.

J. Clator Arrants, Donald H. Holland, Camden, for respondent.

BUSSEY, Justice.

This is an action arising out of the alleged negligence of defendants-appellants, the appeal being from an order overruling a demurrer to the complaint. The facts disclosed by the complaint are as follows. The individual defendant is the president and principal stockholder of the corporate defendant. In 1964 the corporate defendant, in addition to writing insurance, was engaged in the construction of homes for sale in Mayfield Acres Subdivision in Kershaw County, said homes being built by the corporate defendant under the supervision of the individual defendant.

One of these homes, at least inferentially just completed, was conveyed by the corporate defendant to the individual defendant Scyphers on August 29, 1964. Scyphers thereafter conveyed such to plaintiff's husband on January 7, 1965, first assuring him that the house was sound in every respect. On April 5, 1966, while the house was still relatively new, plaintiff climbed a folding stairway in the house which had been installed therein by the corporate defendant, under the supervision of its president and agent Scyphers, and, as she was near the attic landing, the stairway fell causing the plaintiff, who was pregnant at the time, to sustain quite serious injuries.

It is alleged that plaintiff's injuries were caused by the gross negligence, carelessness, recklessness, wantonness and wilfulness of the defendants in several particulars, which may be summarized as follows: (1) In building and putting on the market for sale a residence which, (a) did not meet the requirements of the South Carolina Builders' Code or regulations of either the VA or FHA; (b) in which the folding stairway was installed by merely attaching or hanging it in the molding surrounding it instead of bolting or properly nailing the same as required for the safety of those who would use it, and (c) when the defendants knew or should have known that the said stairway was unfit for anyone to use; (2) in assuring the plaintiff that the house and residence was properly constructed and in safe condition, when the defendants knew, or could and should have known, with the least bit of inspection, that the folding stairway in the house was not properly constructed or attached.

Demurrer was on the ground that the complaint did not state facts sufficient to constitute a cause of action, and the exceptions of the appellants are five in number, but they state a single question as follows:

'Is the Seller (Vendor) of real property liable in tort to a purchaser (vendee) (or member of his family) for personal injuries resulting from a dangerous or defective condition of the premises after title has passed?'

We think, however, the questions presented cannot be so simply stated and we state them as follows:

1. Is a party who is engaged in the business of building and selling new dwelling houses liable to the purchaser or invitees of the purchaser for personal injuries sustained as a result of defective construction caused by the builder's negligence?

2. Is such builder-seller, of a new house, liable for such injuries if he negligently or willfully fails to disclose dangerously defective construction, which he either knew of or, in the exercise of due care, should have known of?

Both of the stated questions appear to be of novel impression in this jurisdiction, but, as will be hereinafter shown, they are far from novel in other jurisdictions.

The defendants contend that in the absence of fraud a vendor cannot be held liable to a vendee, or the invitees of the vendee, for any defect in the premises after a deed of conveyance, under which the vendee has gone into possession. Strongly relied on by the defendants is the legal proposition that as a general rule there is no implied warranty in the sale of lands. See Latimer v. Wharton, 41 S.C. 508, 19 S.E. 855, and the cases therein reviewed. While that rule has been applied by this court to a variety of situations, it has no application to the instant case for the simple reason that the plaintiff does not seek to recover on the basis of any implied warranty.

Research of the questions involved in this appeal leads us into a field of law in which many developments have taken place in other jurisdictions in comparatively recent years. Defendants place great reliance on an annotation in 8 A.L.R.2d, commencing at page 218, wherein, at Sec. 4, page 221, it is stated that the prevailing rule is that a vendor or grantor of real estate is not liable for injuries to a purchaser or member of his family, resulting from an existing defective condition of the premises conveyed. Admittedly, such rule has been applied by at least several courts, even where the house was a new one sold by a builder-vendor. Such rule, however has in more recent years been increasingly rejected, in cases factually similar to the instant case. Some of the cases cited in the mentioned annotation, and relied on by defendants, as will hereinafter be pointed out, have been rejected, in whole or in part, in the jurisdictions in which they arose.

In a somewhat related field, the entire weight of modern authority is to the effect that building contractors, under the rationale of the celebrated case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, are liable for injuries to, or the death of, third persons occurring after the completion of the work and acceptance by the owner, where the work is reasonably certain to endanger third persons if negligently prepared or constructed. See the annotation in 58 A.L.R.2d 869. Prosser on Torts, 3d Ed., 688, Sec. 99, deals at some length with this phase of the law. The same work, at page 408, Sec. 62, deals with developments in the law with respect to the liability of a vendor, as opposed to a contractor.

While most courts still adhere to the proposition that in the usual, normal sale of lands, and old buildings, the ancient doctrine of caveat emptor applies, with respect to a vendor, who is also the builder of a new structure, the decided trend of modern decisions is to make a distinction. Where the vendor is also the builder he is today, by the weight of modern authority, held liable for damages and injuries occurring after the surrender of title and possession, on one or more of three theories: (1) Implied warranty, an issue not raised in this case; (2) an imminently dangerous condition caused by negligence in construction, and (3) the following proposition from Sec. 353 of the Restatement of the Law of Torts, 3d Ed.

'(1) A vendor of land who conceals or fails to disclose to his vendee any condition whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, it

'(a) the vendee does not know or have reason to know the condition of the risk involved, and

'(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will discover the condition or realize the risk.'

Belote v. Memphis Development Co., (1961) 208 Tenn. 434, 346 S.W.2d 441; Sabella v. Wisler, (1963) 59 Cal.2d 21, 27 Cal.Rptr. 689, 377 P.2d 889; Dow v. Holly Manufacturing Co., (1958) 49 Cal.2d 720, 321 P.2d 736; Schipper v. Levitt & Sons, Inc., (1965) 44 N.J. 70, 207 A.2d 314; Fisher v. Simon, (1961) 15 Wis.2d 207, 112 N.W.2d 705; Leigh v. Wadsworth, (Okl.1961) 361 P.2d 849; Lowe v. Francis Construction Co., (Okl.1972) 373 P.2d 51; Glisan v. Smolenske, (1963) 153 Colo. 274, 387 P.2d 260; Carpenter v. Donohoe, (1964) 154 Colo. 78, 388 P.2d 399; Vanderschrier v. Aaron, (1957) 103 Ohio App. 340, 140 N.E.2d 819; Waggoner v. Midwestern Development Inc., (S.D.1967) 154 N.W.2d 803; Caporaletti v. A-F Corp., (D.C.1956) 137 F.Supp. 14; Id., 99 U.S.App.D.C. 367, 240 F.2d 53.

While no implied warranty is asserted or relied on in the instant case, we have included in the foregoing citations several cases wherein liability was predicated solely on the theory of implied warranty, simply to show the trend of the law in this field. The cases included which hold the builder-vendor liable for negligence in construction...