12 P.2d 126 | Cal. Ct. App. | 1932
Plaintiffs sued for damages for personal injuries sustained by Mrs. Stone in falling through a skylight in a building which plaintiffs purchased from defendant. The appeal is from a judgment for defendant following an order sustaining a demurrer to the third amended complaint.
This complaint alleged that the building was constructed by defendant and sold to plaintiffs on May 2, 1929, for residential purposes; that the skylight was constructed of clear glass one-eighth of an inch thick and did not comply with the requirements of the municipal building ordinance; that this defect was unknown to plaintiffs and was not discoverable by the use of reasonable care; that defendant represented to plaintiffs that the building was free from defects; and that, on August 20, 1930, plaintiff Elin M. Stone, "placed a portion of her weight lightly on said skylight" and was precipitated through the skylight, sustaining bodily injuries for which damages were asked.
[1] The plaintiffs predicate their cause of action upon the theory that the construction of the skylight in violation of the terms of the ordinance was negligence per se and that the defendant is liable under the rule of Lewis v. Terry,
The rule applicable to the vendor of realty is stated in Upp
v. Darner, 150 Iowa, 403 [Ann. Cas. 1912D, 574, 32 L.R.A. (N.S.) 743, 130 N.W. 409, 410], as follows: "After the owner of such premises has disposed of them he is no longer liable for what may happen thereon for the reason that he is in no position to control the use thereof." In accord are Smith v. Tucker,
The judgment is affirmed.
Sturtevant, J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on July 2, 1932.