Gabbert v. Wood

MUSSELL, J. Plaintiffs appeal from a judgment in favor of defendant John A. Wood in an action for damages for personal injuries. The ease was tried before the court without a jury and the question involved is whether the evidence is sufficient to sustain the findings and judgment.

On or about May 10, 1951, defendant John A. Wood, who owned certain residential real property near Adelanto in San Bernardino county, employed Abigail V. Notterman, a licensed real estate agent and broker, to procure a purchaser for the property. Plaintiff Ethel M. Gabbert testified that in the latter part of December, 1950, she and her husband were interested in the property and “went all over it” with Mrs. Notterman; that there was nothing unusual about the surface of the ground; that it was level except for some drifting sand and she saw no holes in the ground. On July 6, 1951, Mrs. Notterman again took plaintiffs to the property and a further inspection of the premises was made by them. Again, plaintiffs [189]“went all over the property” and there were no visible holes in the ground and no unusual condition was noted by them. While on the premises on that occasion, plaintiffs decided to buy the property and agreed to pay the purchase price in installments, $500 down, $500 at the close of escrow, and the balance in monthly installments. These terms were acceptable to defendant John A. Wood and his agent, Mrs. Notterman, and plaintiffs then and there delivered a check for $500 to Mrs. Notterman as the down payment on the purchase price. On the following day, July 7, 1951, plaintiffs requested permission of Mrs. Notterman to return to the premises for the purpose of discussing with a prior owner of the property the exact location of the property lines, water lines and utilities in connection with certain alterations and improvements which plaintiffs intended to make. Pursuant to this request Mrs. Notterman gave plaintiffs the keys to the buildings and permission to go on the premises. Plaintiff Ethel Gabbert, while walking around the property on this occasion, fell through what appeared to be the natural surface of the ground into a subsurface hole or air pocket near the outside of the masonry walls of an underground cesspool. The hole was approximately 12 inches in diameter and had been covered over with earth so that it was not visible. Mrs. Gabbert testified that she saw no hole in the ground; that “it was seemingly just a natural ground, it kind of opened up and I went down.” There is no evidence in the record that defendant John A. Wood or his agent, Mrs. Notterman, knew of the existence of the subsurface hole or air pocket prior to the accident. The evidence shows that there was no apparent irregularity in the appearance of the surface of the ground and nothing to indicate the existence of such a subsurface hole to defendant John A. Wood, his agent, or the plaintiffs.