1. The court did not err in overruling the demurrer.
2. The evidence did not sustain the verdict, and the court erred in overruling the motion for new trial.
DECIDED JANUARY 12, 1944. Mrs. Elizabeth Pittman brought suit against W. J. Davis and the City of Atlanta jointly to recover damages for injury to a city lot and the house located thereon. She alleged that a sewer pipe, located some 20 or 30 feet beneath the surface, under the house, gave way and caused the water to flow from the pipe to the surface, wash holes therein, and undermine the foundation of the house, to her damage in an amount alleged. A verdict was returned for the plaintiff against both defendants. Each defendant filed a motion for new trial. Both motions were overruled, and each defendant excepted. It will be necessary to deal with each case separately, since there are allegations and evidence which apply particularly to each defendant.
The material allegations of the petition applicable to the defendant Davis are substantially as follows: That the plaintiff "is informed and believes" that the defendant Davis constructed the sewer in a defective manner over thirty years ago, prior to the time petitioner's house was built; that in co-operation with the city, and individually, he failed to maintain it in proper condition to prevent damage to petitioner's property; that the plaintiff did not know her house was built over a sewer; that approximately on January 8, 1914, J. W. Woolley purchased from the defendant W. J. Davis the property in question; and approximately February 25, 1918, J. W. Woolley deeded the tract to Hoyt C. Woolley, the plaintiff's father; that her father died on April 2, 1918, leaving her as his sole heir at law, and that the administrator of her father's estate deeded the property to the plaintiff on October 10, 1934; that the defendant Davis sold the property to her predecessors in title knowing of the existence of the sewer beneath the house, and without revealing its existence to the purchaser, and that the location of the sewer was thus concealed from the plaintiff and her predecessors in title.
Davis filed general and special demurrers to the petition, which were overruled. To the judgment overruling the demurrers he *Page 505 filed exceptions pendente lite. The specifications of negligence are: "(a) Of defendant W. J. Davis, in building the said sewer with inadequate strength, in that it could not support the weight that was and would be upon it, and in that it was not properly braced, and in that the earth was not properly tamped, and in that foundations and supports were not placed so as to keep the said sewer in proper operating condition; and in failing and neglecting to lay said sewer in accordance with section 2389 of the city code of Atlanta of 1910, paragraphs 4 and 6. (b) Of defendant City of Atlanta, in failing to inspect the said sewer, or to keep it free from obstructions, or otherwise exercising any care to see to it that the said sewer would continue open so that drainage could be had without danger to the property of petitioner and others similarly situated; and in digging up and repairing the said sewer, in neglecting to carry the footings down to a solid or firm bearing, or brace the same properly, or comply with sections 13 and 14 of the building code of the City of Atlanta, adopted December 7, 1923, effective February 7, 1924; and in permitting the sewer to reach a condition where it could not carry the load of sewage that was placed upon it by the said City of Atlanta." And the following was added by amendment: "The said W. J. Davis sold said property knowing of the existence of a sewer there, and without revealing its existence to the purchaser, the sewer was known to exist by W. J. Davis, it was concealed from the purchaser and successors in title, and the said W. J. Davis knew said sewer was in a ravine, and under filled earth, and seller failed to reveal to the purchaser, all of which caused damage to petitioner." The last amendment was filed after the demurrers were overruled, and there seems to have been no objection to this amendment. 1. The court did not err in overruling the demurrers. This disposes of the exceptions pendente lite.
2. There was no evidence that Davis constructed the sewer in question. In fact the evidence is undisputed that he did not. He purchased the property after the construction of the "private" sewer line. It appears from the evidence that there were certain transactions between Davis and the authorities of the city with *Page 506 reference to connecting other portions of the "private" sewer line to the city mains, and transactions wherein Davis permitted the tapping of the private line (part of which was constructed over the tract on which the plaintiff's house was built), in order to connect with the city mains. But there was no evidence of any such connection concerning that portion of the sewer on the lot in question. There was no evidence which would authorize the inference that Davis at the time of the damage complained of, and for a number of years prior thereto, maintained or attempted to maintain the sewer line running under the plaintiff's house, or that he owned or controlled any property along, adjacent to, or in the vicinity of the alleged defective sewer. But there is a direct allegation that about the year 1927 the city acquired the sewer line and obligated itself to maintain it, and it became a part of the city's sewerage system. There is evidence to this effect. On this feature of the case the evidence wholly failed to sustain a recovery against the defendant Davis either on the theory that he improperly constructed the sewer or negligently maintained it. This leaves but one further contention to sustain the verdict against Davis, and that is as to the allegation in the amendment to the effect that in 1914, knowing that the sewer was constructed across the lot in question, Davis sold the lot to the plaintiff's predecessor in title, J. W. Woolley (plaintiff acquiring the same in 1934 by inheritance), without revealing the location of the sewer to the then purchaser of the property. The petition does not allege that there was any express warranty concerning the sewer. The petition is lacking in any allegation as to actual or constructive fraud except as above stated. There was no demurrer filed to the amendment, which was set up after the overruling of the general and special demurrers. Therefore we are not here concerned with whether a different cause of action was thereby alleged against Davis, but we are concerned and must decide whether there was any evidence to sustain this theory of the case. The evidence reveals that on January 8, 1914, Davis deeded the tract in question to J. W. Woolley; that on February 20, 1918, J. W. Woolley deeded it to Hoyt C. Woolley (the father of the plaintiff, who died the following April, leaving the plaintiff as his sole heir at law); that on October 11, 1934, Henry J. Austin, as guardian of the plaintiff, deeded the tract to her. The evidence reveals that the house was built by J. *Page 507 W. Woolley. The evidence does not disclose the nature of the conveyances, that is, whether they contained covenants of warranty of any nature, or the consideration. Neither does the evidence show that at the time Davis conveyed the lot to Woolley, Davis knew of the location of the sewer on this particular lot. If it be conceded, for the sake of argument, that Davis did know of the location of the sewer, under the evidence submitted to sustain the verdict on the theory that he concealed it, the evidence is insufficient in law. We have been unable to find any authority in this State, and none has been cited to us, where the mere concealment of such a fact from a predecessor in title of real estate (as shown by the facts of this case), is sufficient to sustain such a recovery. Woodward v. Miller, 119 Ga. 618 (46 S.E. 847, 64 L.R.A. 932, 100 Am. St. Rep. 188), involves personal property; 41 A.L.R. 78, § 27, does not apply because there is no proof that Davis constructed the sewer line.
It is argued that Hopkins v. City of Atlanta, 172 Ga. 254 (157 S.E. 473), and Davis v. Hopkins, 50 Ga. App. 654 (179 S.E. 213), both involving the same facts and parties, are authority to sustain the verdict in the instant case against Davis. By reference to the facts of the Hopkins cases, it will be seen that they are different from the case at bar. In Davis v. Hopkins, it was alleged and proved that the sewer pipe in that lot was exposed to view at the time Davis purchased the property. Thereafter he began hauling and dumping thereon, rubbish and barrels and other materials unsuitable to fill a lot. As to the sewer and the lot here in question, there is no such allegation or evidence. We therefore conclude and hold that the principle ruled under the facts in the Hopkins cases can not be extended to sustain the recovery against Davis in the instant case. The court erred in overruling the motion for a new trial.
Judgment reversed. MacIntyre, J., concurs.