Bray v. Cross

Nichols, Judge.

The plaintiff’s petition as finally amended is in excess of 40 pages and will not be quoted in detail as the controlling questions are very clearly and succinctly stated by the defendant as follows: “(a) Where an owner conveys realty by deed of conveyance, does such owner thereafter owe any duty to persons injured by a defective condition of - the premises? (b) Can a latent construction defect in a house be classified as a nuisance where it can affect only the premises on which the house is located and persons lawfully or rightfully present on those premises?”

1., The first question presented is controlled adversely to- the defendant by the decision of this court in. Kuhr Bros., Inc. v. Spahos, 89 Ga. App. 885 (81 S. E. 2d 491), and, while in that case the resulting damage was to “property” whereas here the injuries were to the plaintiff’s person, the same law is applicable inasmuch as both cases involved the liability of a seller for knowingly furnishing realty that was imminently dangerous without advising the purchaser of such fact. The allegations in the present case show that the “defect” was a latent defect that could not be discovered in the exercise of ordinary care, for the allegations show that the “defect” was covered with plaster an inch thick. Therefore the two counts of the petition based on negligent construction were not subject to the defendant’s general demurrers and the trial court did not err in overruling such demurrers.

2. The remaining two counts of the petition are based on the theory that the condition of the ceiling which collapsed was a nuisance. One count is based on the theory that the defendant is liable for the creation of a nuisance by her agent and the other that she is liable for maintaining a nuisance created by an independent contractor with actual knowledge and acceptance by the defendant.

In Davey v. Turner, 55 Ga. App. 786 (191 S. E. 382), this court held that an independent contractor and the property owner, as against general demurrer, were both liable for the creation of a nuisance in a case where a gas heater was installed without a vent when proper installation required that the heater be vented, and a' person lawfully on the property died as the result of breathing monoxide gas. In that case it was held that the contractor and the owner of the property were joint tortfeasors, and that the person creating the nuisance and the person maintaining the nuisance could be joined as defendants in one action. It necesarily follows that an action against either would lie without joining the other. In the present case, of the counts based on nuisance, one count is based on the creation of a nuisance by the defendant through her agent and the other on the maintaining of a latent nuisance by accepting with knowledge of the condition the installation made by the independent contractor and, in both counts, with not advising her vendee of such latent nuisance so that the vendee could take steps to correct such condition before it caused injury.

The decision in Kuhr Bros., Inc. v. Spahos, 89 Ga. App. 885, supra, controls as to the contention presented by the defendant that the doctrine of caveat emptor relieved her of liability after she had deeded the property to- the plaintiff’s landlord, for under the allegations of the petition the premises were imminently dangerous.

These counts of the plaintiff’s petition set forth a cause of action against the defendant and the, trial court did not err in overruling the defendant’s general demurrers to such counts.

Judgment affirmed.

Townsend, Carlisle, and Quillian, JJ., concur. Felton C. J., and Gardner, P. J., dissent.