Whiten v. Orr Const. Co., 40409

• Decision Date: 05 March 1964
• Docket Number: No. 3,No. 40409,40409,3
• Citation: 136 S.E.2d 136,109 Ga.App. 267
• Parties: C.C. WHITEN, Sr. v. ORR CONSTRUCTION COMPANY, Inc
• Court: Georgia Court of Appeals

Page 136

136 S.E.2d 136

109 Ga.App. 267

C.C. WHITEN, Sr. v. ORR CONSTRUCTION COMPANY, Inc.

No. 40409.

Court of Appeals of Georgia, Division No. 3.

March 5, 1964.

Syllabus by the Court

The trial court did not err in sustaining the demurrer to the petition; however, in view of the circumstances, the judgment of the trial court is affirmed with direction that the plaintiff be allowed to amend his petition as stated in the opinion.

The petition was brought by the purchaser of a house against a builder-seller seeking to recover damages for injuries to the house occasioned by an imminently dangerous defect constructed into the house by the defendant and then concealed by the defendant and of which the defendant did not inform the purchaser. The petition was brought in two counts, one based on negligence, the other based on creation of a nuisance. The trial judge sustained a general demurrer to the petition and the plaintiff excepted.

James M. Embry, Ezra M. Sasseville, Atlanta, for plaintiff in error.

Powell, Goldstein, Frazer & Murphy, Eugene G. Partain, Atlanta, for defendant in error.

PANNELL, Judge.

While the doctrine of caveat emptor applies to the sale of realty, and there are no implied warranties as to title or the physical condition of the property sold and ordinarily a purchaser buys at his own risk (Walton v. Petty, 107 Ga.App. 753, 131 S.E.2d 655), this strict rule has been modified in a number of instances where fraud has been involved; as to title, where fraudulent representations are made, Rice v. Warren, 91 Ga. 759(2), 17 S.E. 1032; Holliday v. Ashford, 163 Ga. 505, 136 S.E. 524; fraudulent representation as to encumbrances, Leyden v. Hickman, 75 Ga. 684; Oliver et al. v. O'Kelley, 48 Ga.App. 762, 173 S.E. 232; false representations as to easements and appurtenances, Waldon v. Stokes, 23 Ga.App. 428(1), 98 S.E. 367; Fenley v. Moody, 104 Ga. 790, 30 s.E. 1002; fraudulent representations as to quality of land sold, Smith v. Kirkpatrick, 79 Ga. 410(2), 7 S.E. 258; Estes v. Odom, 91 Ga. 600, 18 S.E. 355; false representations as to type of tenancy, Bridges v. Pafford, 6 Ga.App. 689, 65 S.E. 700; false representations as to boundary, Duncan v. Bailey, 162 Ga. 457, 134 S.E. 87; Puckett v. Reese, 203 Ga. 716, 48 S.E.2d 297; false representations as to quality of lumber in house, Griffin v. Butler, 45 Ga.App. 771, 166 S.E. 60; false representations as to water supply, Pressley v. Jones, 64 Ga.App. 419, 13 S.E.2d 394; fraudulent concealment or nondisclosure of large sewer on the premises resulting in damage to house constructed thereon and to the land itself, Davis v. Hopkins, 50 Ga.App. 654, 179 S.E. 213. It appears from the report of this case in Hopkins v. City of Atlanta, 172 Ga. 254, 257(2), 157 S.E. 473, that Davis was charged with acts of fraud. An examination of the record in this court discloses that the petition charged that Davis knew of the location and existence of the sewer in a ravine on the lot; that he filled and covered it to a depth of 25 to 30 feet and planted grass on the fill; that the existence of the sewer was a fact material to be known by the plaintiff Hopkins, and that the defendant Davis was under an obligation to communicate this fact and that the failure to communicate constituted a suppression of facts amounting to legal fraud. The charge in that case, based upon the allegations of fraud and evidence in proof thereof was approved by this court. The charge is as follows: 'I charge you, gentlemen, if there is a concealed defect in the lot known to the seller or which, by the exercise of ordinary prudence should have been known by him and which an ordinarily prudent examination would have discovered, the seller is bound to reveal it to the purchaser.'

To the extent that the seller has actual knowledge of the defect, we are in accord with the ruling made in the case of Davis v. Hopkins. There have been some other cases decided by this court involving instances of sales of real estate where there have been either false representations or concealment and recoveries have been allowed. Stovall v. Rumble, 71 Ga.App. 30, 29 S.E.2d 804; Southern v. Floyd, 89 Ga.App. 602, 80 S.E.2d 490, involving defective furnace and based on fraud; Bray v. Cross, 98 Ga.App. 612, 106 S.E.2d 315, based on negligence, in which Chief Judge Felton dissented, one of his grounds for dissent being that, in the absence of any agreement relating to the defects, actual fraud on the part of the seller in failing to disclose known defects is necessary to support recovery.

The case of Davis v. Hopkins is authority for the proposition that where the seller, knowing there is a defect in the property sold which constitutes an imminently dangerous condition and which defect is concealed by the seller so it could not be discovered by the exercise of ordinary care on the part of the purchaser and the purchaser does not know of this defect and the seller does not reveal...