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 o.f 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
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 fropn 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,
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.,
While most courts still adhere to the proposition that in the usual, normal sale of lands, and old buildings, the an
“(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, if
“(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),
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 and/or on the basis of the Restatement rule reach, we think, legally sound and just results.
We have previously, in
Salladin v. Tellis,
247 S. C. 267,
In
We quote the folloyring from
Caporaletti v. A-F Corporation, D. C.,
“At common law the grantor of real property was not liable for damages caused by any defect in the construction of the building after he had parted with title to the property. The rule of
caveat emptor
was applicable,
Palmore v. Morris,
“Conditions have radically changed since the origin of the general common law rule. Homes are being constructed on a large scale by persons engaged in the building business for the purpose of selling them to individual owners. The ordinary purchaser is not in a position to discover a latent defect by inspection, no matter how thorough his scrutiny may be, because usually he lacks sufficient familiarity with the complexities of building- construction and the intricacies of applicable regulations. He should be able to rely on the skill of the builder who sells the hquse to him. Otherwise he would be at the vendor’s mercy. The realities of modern life necessarily lead to the conclusion that the builder should be liable for injuries caused by his negligence under such circumstances, either to the purchaser or to an invitee. Any other result wojuld be unjust and intolerable. It would encourage unscrupulous builders who may be tempted to re
“It is the glory of the copamon law that it is not a rigid, immutable code. On the contrary, it is a vital, living force that endows with the breath of life a body of practical principles governing human rights and duties. These rules are subject to gradual modification and continuous adjustment to changing social and economic conditions and shifting needs of society. This characteristic is the life blood of the cqmmon law. It still exists in its pristine vigor. The spark of life is still burning bright. It has not been extinguished.”
Defendants point out that the decision just quoted from was reversed on appeal, 240 F. (2d) 53, and attempt to distinguish it because the seller in that case entered into a contract with the purchaser to build the particular house prior to its construction and conveyance. The decision of the lower court was reversed solely on the inadvertent failure of the District Judge to define negligence in his charge. The opinion of the Court of Appeals otherwise approved the decision of the lower court and reflects that both courts attached no significance to the contract between the parties and regarded the status of the defendant as being simply a builder-vendor.
We have reviewed all of the cases relied upon by defendants, and now deal briefly with some of them.
Smith v. Tucker,
We conclude that the demurrer was properly overruled, but in so concluding, we have assumed that the defect in the stairway was a latent, concealed one, unknown to plaintiff or her husband prior to plaintiff’s injury, although the coqiplaint does not specifically so allege. Plaintiff is, of course, entitled to a liberal construction of the complaint and we think it reasonably inferable from the facts alleged that the defect was a latent, concealed one. No issue as to insufficiency of the copaplaint, in this respect, is raised by either the demurrer or the exceptions. Whether the alleged delicts on the part of the defendant were in fact the proximate cause of plaintiff’s injuries and whether there was, perchance, intervening negligence on the part of plaintiff’s husband, or contributory negligence on the part of the plaintiff herself are issues which are, of course, not now before us.
Affirmed.