Mincy v. Crisler, No. 23288

No. 23288 | Miss. | Mar 15, 1923

Cook, J.,

delivered the opinion of the court.

The appellee sold to appellant a house and lot situated on Central street, in the city of Jackson, Miss. The appellee had purchased this lot when there were no improvements thereon, and had caused to be erected the house which he sold to appellant. Central street runs east and west, and this lot is on the north side thereof, and has a frontage of fifty-six feet thereon, with a depth of one hundred forty-six feet. A ditch,'six feet wide and five feet deep, runs along the west line of the lot until it reaches a point about seventy feet from Central street,- whence it turns to the southeast through the lot and crosses Central street at a point east of the center of the southern boundary line of the lot. Appellee covered a part of this ditch with lumber placed below the surface or level of the ground and placed dirt thereon, thus bringing the surface of the lot to the level. This covering extends from Central street to a, point several feet beyond the point ivhere the ditch deflects from its straight course along the west boundary line of the lot, and to a point a short distance to the rear of th'e house which appellee afterwards erected. This ditch runs under Central street, and is likéwise covered through the lots fronting on the south side of this street, and empties at some point at the rear of the houses on the south side of Central street. The uncovered portion of the ditch was surrounded by a fence — a portion by a high board fence, the remainder by wire. That part of the ditch winch was uncovered ran in a straight course along the west boundary line of the lot, and if its course had continued straight would have passed to the west of the house. There was nothing under the house or in front thereof to indicate the course of the ditch, and the change in the course thereof could not be detected from an examination of the premises from the rear without crawling down the ditch.

Appellee sold the house and lot to appellant through a real estate agent, but he was present when appellant examined the premises. Appellant saw the uncovered portion of the ditch, but made no( inquiry in regard to its course, presuming that its course continued to the west of the bouse. Neither the appellee nor his agent disclosed the fact that the ditch ran under the house. In constructing the house, appellee placed certain foundation pillars directly over this covered ditch, and he did not disclose this fact to appellant. Several witnesses testified that' the lumber with which the ditch was covered was old and decaying when it was placed over the ditch.

Some time after the appellant purchased the property the covering over the ditch gave way, wrecking the foundation of the house, and otherwise damaging it. The appellant was forced to expend the sum of four hundred twenty-five dollars in placing a concrete culvert in the ditch and in repairing the house, and to recover the sum so expended this suit was brought. At the conclusion of the appellant’s testimony a motion was made to exclude this testimony and grant a peremptory instruction for the defendant. This motion was sustained, and on appeal the sole question presented for decision is whether this ruling of the trial court was correct.

The solution of this question involves a consideration of whether, under the facts in evidence, the court was authorized to hold the defect which caused the injury and loss was a patent one; that is to say, one which appellant might have discovered by the exercise of ordinary diligence. It is conceded that appellant was aware of the presence of the open ditch on the rear of the premises, and that appellee made no representations whatever in regard to the course of the ditch or the foundation of the house, and the appellee was under no duty to disclose any fact that an inspection of the premises conducted with reasonable and ordinary diligence would have disclosed.

The appellee had covered the ditch, using as a base for this covering old and defective lumber, and afterwards had constructed the house Avith the foundation pillars resting on this insecure base, which he necessarily knew Avould give way in course of time. For a long distance north of the covered portion of the ditch its course was straight, and there was nothing in the appearance of the premises to indicate that its course changed beyond the point where the covering began, and certainly nothing to indicate that the foundation pillars of the house rested on an insecure covering placed over this ditch. The damage which appellant suffered was not caused by the mere fact that the ditch passed under the house, but was due to the fact that the foundation pillars were placed directly over the covered ditch, and we think that appellant had a right to presume that, in constructing a house, no reasonably prudent man would place some of the foundation pillars thereof directly over a six-foot ditch, which he had covered with a layer of dirt resting on a base of old and decayed lumber, and it is doubtful whether any inspection which the appellant was required to make would have disclosed the fact that they were so located, and we think it was error to exclude the testimony for appellant and direct a verdict for appellee.

Reversed and remanded.