Tison v. Eskew , 114 Ga. App. 550 ( 1966 )

Pannell, Judge.

Joseph D. Tison, purchaser of a house, brought an action against Morris T. Eskew, the builder-seller, to recover damages for injuries to the house caused by hidden defects constructed into the house and concealed by the defendant and of which the defendant did not inform the purchaser, representing to him that the home had no defects.

A general demurrer of the defendant to the petition was sustained and the petition dismissed. The case is on appeal to this court.

In our opinion the trial court did not err in sustaining the general demurrer to the petition seeking damages from the defendant seller because of alleged defects in the house purchased by plaintiff. The defects alleged were the absence of “any pillars under the family room and kitchen,” and floor joist of insufficient size "to carry the weight load of the family and kitchen rooms under the subfloor.” According to the allegations of the petition these alleged defects were discovered, after the floor had sagged, when the plaintiff and another “crawled under the house.” So far as the allegations of the petition disclose, the only reason the plaintiff did not see these alleged defects is because he didn’t crawl under the house and look, which was the only place he could have gone to observe them. If the roof had had insufficient rafters or supports, which could be easily seen by going into the attic, we would certainly not consider these as hidden defects, nor do we so< consider the defects here.

There have been numerous decisions by this court involving defects in real estate, and the cases were in conflict. These cases were discussed and, in our opinion, a ruling was laid down by which such cases would be governed in the future, in Whiten v. Orr Constr. Co., 109 Ga. App. 267, 269 (136 SE2d 136). In that case this court stated that “to the extent that the seller has actual knowledge of the defect, we are in accord with the rule made in the case of Davis v. Hopkins, 50 Ga. App. 654 [179 SE 213].” The court then construed the ruling in that case saying: “The case of Davis v. Hopkins, 50 Ga. App. 654, supra, 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 it to him and damage is occasioned to the property by the concealed defect, the purchaser has a right of action based upon fraud and deceit against the seller upon properly pleading his case.” Any purchaser of real estate is at liberty to require a warranty from the seller as to the structural soundness of the property. When he does not do so, he can only recover based upon fraudulent concealment of a defect constituting an imminently dangerous condition. In our opinion, the defects described here, as to the absence of pillars, may or may not constitute such a condition, but whether they did or did not is not important or controlling, as here they were not concealed by the seller but were open to plain view by anyone who went to the proper place to view them, that is, underneath the house.

In our opinion the trial judge did not err in sustaining the general demurrer and dismissing the petition.

Judgment affirmed.

Frankum, Jordan, Eberhardt and Been, JJ., concur. Felton, C. J., Nichols, P. J., Bell, P. J., and Hall, J., dissent.