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Dooley v. Berkner

Court of Appeals of Georgia
Jan 25, 1966
113 Ga. App. 162 (Ga. Ct. App. 1966)





Action for damages. Bibb Superior Court. Before Judge Aultman.

Shi Raley, Trammell F. Shi, J. Jerome Strickland, for appellant.

J. Douglas Carlisle, Warren H. Oliver, for appellee.

A seller-builder of a residence who conveyed the property by deed to the plaintiff after the completion of the building is not liable to the purchaser for the negligent construction of the building alleged to have been caused solely by the negligence of the seller or his employees.


W. D. Dooley sued Prentice Berkner to recover compensatory and punitive damages by reason of the negligence of the defendant or his employees in constructing a house which defendant subsequently sold to plaintiff. The actual damages sought were for repairs to part of the roof and subflooring of the house. The court sustained the general demurrer to the petition from which judgment the plaintiff appeals.

At common law the rule of caveat emptor applied strictly to a purchaser of real property. Walton v. Petty, 107 Ga. App. 753 ( 131 S.E.2d 655); Whiten v. Orr Constr. Co., 109 Ga. App. 267 ( 136 S.E.2d 136); Morgan Constr. Co. v. Kitchings, 110 Ga. App. 599 ( 139 S.E.2d 417); 8 ALR2d 218; Prosser, Law of Torts, 3d Ed., Ch. 11, § 62, Vendor Vendee, p. 408; Thompson on Real Property, Vol. 8A, § 4470, pp. 393-397. Implicit in the rule that there is no implied warranty in a conveyance of realty is the further principle that the vendee accepts the property as it is and assumes full responsibility for defects, etc., with the exception stated in the Georgia cases above that recovery may be had for the fraudulent concealment of known defects. This legal consequence excludes the tort liability based on the doctrine of products liability as initiated by MacPherson v. Buick Motor Co., 217 N.Y. 382 ( 111 N.E. 1050). We are foreclosed from an abandonment of the common law rule of caveat emptor in cases of realty sales because the common law of force prior to May 14, 1776, is of force in this State except where modified by statute or not adjusted to our circumstances. Harris v. Powers, 129 Ga. 74 (2) ( 58 S.E. 1038, 12 AC 475); Louisville c. R. Co. v. Wilson, 123 Ga. 62, 67 ( 51 S.E. 24, 3 AC 128); Annotations, Code Ann. § 2-8003; Cobb's Digest, 1851, p. 721. To hold otherwise would be a clear usurpation of legislative power. For a very able, thorough and comprehensive study of the law in all its phases regarding the question as to whether the MacPherson rule should be applied to sales of realty, and as to how it should be done, see Vanderbilt Law Review, "Caveat Emptor in Sales of Realty — Recent Assaults Upon the Rule," Vol. 14 (1960-61) p. 541.

In the absence of allegations of fraud in the petition and because the sole basis of recovery against the seller-builder, who conveyed by deed without warranties after completion of the building conveyed, is the negligence of the seller or his employees, the court did not err in sustaining the general demurrer to the petition.

Judgment affirmed. Frankum and Pannell, JJ., concur.

Summaries of

Dooley v. Berkner

Court of Appeals of Georgia
Jan 25, 1966
113 Ga. App. 162 (Ga. Ct. App. 1966)
Case details for

Dooley v. Berkner

Case Details

Full title:DOOLEY v. BERKNER

Court:Court of Appeals of Georgia

Date published: Jan 25, 1966


113 Ga. App. 162 (Ga. Ct. App. 1966)
147 S.E.2d 685

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