Stone v. Heyman Bros.

[47]

NOURSE, P. J.

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.

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, 111 Cal. 39, 44 [52 Am. St. Rep. 146, 31 L. R. A. 220, 43 Pac. 398, 399]. That case involved the sale of a folding bed. In holding that the purchaser had an action in tort for injuries arising from a latent defect in the bed, the Supreme Court say: “But when the seller . . . represents the article to be safe for the uses it was designed to serve, when he knows it to be dangerous because of concealed defects, he commits a wrong independent of his contract, and brings himself within the operation of a principle of the law of torts.” The Lewis case and the authorities therein cited related to the sale of personal property containing latent defects. None of the cases involved the sale of real property where, 'as here, the alleged defect was open to view and might have been discovered. (The ordinance required the skylight to be inclosed by a substantial railing at least three feet high, or protected by a wire screen kept at least four inches above the glass, or glazed with wire glass not less than one-quarter inch thick. It is needless to say that the omission of any one of these requirements would