(dissenting).
I dissent to the majority opinion in this case for the reason that it lays down rules of law that are unsound and misapplies a rule of law to the evidence.
The majority says here that a builder-vendor is liable to a third person for an injury which resulted from the collapse of a porch on a house built and sold by the defendant to Dwight W. Shelby who sold to J. R. Vandergrift who> rented to plaintiff and her husband.
In this case the defendant was not a big operator but he did build a number of houses in Stillwater that were not expensive and were built to get G-I loans. The house in question was inspected and approved for such a loan.
In a recent work Products Liability by Frumer and Friedman, this statement is made:
“It was the common law rule, and still is the general rule, that the vendor of real property is not subject to liability for bodily harm caused to the vendee or others while upon the premises by any dangerous condition, whether natural or artificial, which existed at the time the vendee took possession. This rule has been applied despite the violation of a statute or ordinance.
“Most courts having occasion to pass upon the question have recognized that a vendor of real property is liable for *856negligent failure to disclose a dangerous condition known to- him, if ' he should have realized that the vendee did not know of and probably would not have discovered the condition or its potentiality for harm. Another exception applied in some cases is based on a finding that the vendor created a nuisance.
“It can, of course, be argued that there is no logical distinction between the position of a vendor of real property and that of a manufacturer and seller of goods. This would seem to be particularly true as to third persons. However, ‘(w)hatever measure of logic there may be in support of the argument so made,’ the cases generally have refused to apply MacPherson to real property.
“One practical reason has been suggested for making a distinction between real and personal property. Although the courts have been zealous to guard against mention of insurance (except in those states permitting direct action), it is undoubtedly true that insurance has been an important factor in many of the cases extending tort liability. It is extremely unlikely that after selling his property the vendor of real property will continue insurance coverage against liability for injuries thereafter occurring on the property.”
Most courts make the vendor liable for dangerous conditions known to him but unknown to the vendee and probably would not have been discovered by him.
These questions are treated in Restatement of Law of Torts, Ch. 13, Topic 2, Sections 351, 352 and 353, which I set out:
“ § 351. Dangerous Conditions Arising After Vendor Transfers- Possession.
“A vendor of land is not subject to liability for bodily harm caused to his vendee or others while upon the land by any dangerous condition, whether natural or artificial, which comes into existence after the vendee has taken possession.
Ҥ 352. Dangerous Conditions Existing at Time Vendor Transfers Possession.
“Except as stated in § 353, a vendor of land is not subject to liability for bodily harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.
Ҥ 353. Concealed Dangerous Conditions Known to Vendor.
“A vendor of land, who conceals or fails to disclose to his vendee any condition whether natural or artificial involving unreasonable risk to persons upon the land, is subject to liability for bodily harm caused thereby to the vendee and others upon the land with the consent of the vendee or his sub-vendee, after the vendee has taken possession, if
“(a) the vendee does not know of the condition or the risk involved therein, and
“(b) the vendor knows of the condition and the risk involved therein and has reason to believe that the vendee will not discover the condition or realize the risk.”
Certainly as a vendor the defendant would only be liable if he knew of the condition and the risk involved and had reason to believe that the vendee would not discover the condition or realize the risk.
Under the facts in this case the defendant did not believe there was anything wrong with the construction and thought it was sufficient for all purposes and believed that there was nothing in the construction that necessitated that the vendee be informed of the manner and method of the construction of the porch.
As some authority has said there is no difference of substance between a vendor of real property who is also the builder and a construction contractor whose work is completed and accepted.
*857In 65 C.J.S. Negligence § 9Sb, this statement is made:
“As a general rule after the work has been completed and turned over to, and accepted by, the owner, the contractor is not liable to third persons for injuries suffered by reason of the condition of the work.”
The case which caused a breaking from the old common-law covering matters of this kind was MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696. That involved a manufactured chattel, an automobile wheel. The rule in the MacPherson case has not caught on as to real property. Sarnicandro v. Lake Developers, Inc., 1959, 55 N.J.Super. 475, 151 A.2d 48; Kordig v. Northern Construction Co., 1958, 18 Ill.App.2d 48, 151 N.E.2d 470; Combow v. Kansas City Ground Investment Co., 1949, 358 Mo. 934, 218 S.W.2d 539, 8 A.L.R.2d 213; Copfer v. Golden, 1955, 135 Cal.App.2d 623, 288 P.2d 90; Zeledon v. Bowery Sav. Bank, 195 Misc. 933, 85 N.Y.S.2d 414; Palmore v. Morris, Tasker & Co., 1897, 182 Pa. 82, 37 A. 995; McIntosh v. Goodwin, 1954, 40 Tenn.App. 505, 292 S.W.2d 242.
The majority opinion lays down the rule as an exception to that which says a vendor or builder-vendor is not liable for injury that may come to a third party on the premises which the builder-vendor has conveyed. The exception is that the builder-vendor is liable to persons other than his vendee where the builder-vendor has wil-fully created a condition which he knows to be immediately and certainly dangerous. The record is completely devoid of evidence to prove that the defendant wilfully created a condition that was immediately and certainly dangerous. The plaintiff did not prove her case. The demurrer to the evidence should have been sustained.
It must be remembered that there was no evidence that the defendant was attempting to cover up any defects in construction. He was building according to methods that he deemed sufficient under the circumstances.
Neither was there any evidence that the house after it was built was imminently or inherently dangerous. Imminently and inherently are quite similar to the words immediately and certainly dangerous but whatever expressions are used it is clear that the defendant thought the manner of constructing the porch was sufficient. There was no evidence by any one that the porch was likely to fall down when it was completed. It withstood storms and the elements of Oklahoma and a re-roofing for two and one-half years after it was built.
It must not be overlooked that in the case at bar the defendant the builder-vendor never warranted the soundness of the construction by oral or written covenant and this Court has never implied a warranty in the construction of residences.
The rule of caveat emptor has always applied to purchasers of residences in Oklahoma.
We have held that the landlord is not liable for personal injuries resulting from defects in rented premises in the absence of warranty, deceit or fraud and that the rule of caveat emptor applies to leases of real estate. We have no deceit, no fraud and no warranty in the case at bar. I think where the evidence fails to show these elements as to a builder-vendor he should not be liable.
More liability should attach to landlord than to a builder-vendor because landlord and tenant is a continuing relation while that of builder-vendor terminates upon transfer of possession.
No doubt because of the novelty of the matter A.L.R. has in recent years discussed three cases, two of which depart from the beaten path on the questions here involved. The first is Combow v. Kansas City Ground Investment Co., heretofore mentioned and found at 358 Mo. 934, 218 S.W.2d 539, 8 A.L.R.2d 213. This case held that the vendor was not liable for injury to the vendee by a fall of plaster where there was not a warranty *858that premises were free from defects and did not fraudulently conceal defects and permitted free inspection. There is an extensive annotation to this case beginning- at page 218. I quote from that note as follows:
“The apparent unanimity of opinion as to the nonliability of vendors or grantors for personal injuries du'e to a defective condition of the premises has withstood the attempted application of at least two theories which it has been contended should operate to hold the vendor or grantor liable.
“The first of these theories is that of implied warranty. Under this theory liability is sought as in the case of chattels. But, as has been pointed out in Otto v. Bolton & Norris (Eng) (1936) 2 KB 46, (1936) 1 All Eng 960, stated infra, § 4, there is no implied warranty of safety in sales of real estate even though the vendor is also the builder of a house wherein a defective condition exists.”
I also quote from that note as applied to the chattels of implied warranty:
“As .applied to chattels the theory of implied warranty has been widely accepted, 'but in the words of an eminent authority on the law of contracts there are no implied warranties on sales of real estate. This statement of the rule has been applied to a situation in which a vendee or member of his family has sought to recover against a vendor for personal injuries sustained as a result of the defective condition of the premises conveyed.”
“Thus, in Otto v. Bolton & Norris (Eng) [1936] 2 KB 46, (1936) 1 All Eng 960, where a person apparently a member of the vendee’s family was injured by the fall of plaster from a defective ceiling, it was held that the builder-vendor did not impliedly warrant its safe condition, the court saying : ‘.It is settled law that the vendor of a house, even if also the builder of it, gives no implied warranty as to its safety. A purchaser can make any examination he likes, either by himself or by somebody better qualified so to do. He can take it or leave it, but if he takes it, he takes it as he finds it. It is, perhaps, the strongest example of the application of the maxim “caveat emptor.” I can find in no case any suggestion that a builder selling a house after completion is, in his capacity of builder, under any obligation to take care towards a future purchaser, let alone other persons who may come to live in it.’ ”
There is another case to which attention is called in that note and other authorities and that is Smith v. Tucker, 1925, 151 Tenn. 347, 270 S.W. 66, 70, 41 A.L.R. 830. The Supreme Court of Tennessee-refused to hold the vendor liable to vendee or members of his family for injuries caused by defects in the premises. I quote from that case:
“Whatever may be the reason, no case can be found in the books where the vendor has been held liable in damages to the vendee, or to third persons, for personal injuries arising from defects in the premises.
“Whether this be on grounds of public policy, or because the rule of caveat emptor governs, and no warranty will be implied (2 Williston, Contr. § 926), or whether it be because the precedent negotiations are supplanted by the deed when the ven-dee receives it (27 R.C.L. 529), or whether the reason is to be found in the fact that the delivery of the deed practically terminates the relation of vendor and purchaser, whereas the relation of landlord and tenant is a continuing one, or whether such damages are not supposed to be within the reasonable contemplation of the parties —whatever be the reason, the fact remains.”
The note to that case states the majority rule relieves the landlord of liability *859for personal injury due to defective condition of leased premises in the absence of fraud on his part where he has surrendered possession of premises to the lessee.
The second case in A.L.R.2d to which I call attention is Hale v. Depaoli, 33 Cal.2d 228, 201 P.2d 1, 13 A.L.R.2d 183. In the summary of that decision it was said:
“The plaintiff was injured as a result of the collapse of a porch railing on a house constructed by defendant and his partner. The partner had charge of and supervised the construction. There was evidence from which a jury might infer that the railing was not erected in accordance with sound building practice. The defect was concealed, and the defendant had no actual knowledge thereof. The partnership sold the house to a third person who, some years later, sold it to the defendant individually and not as a partnership transaction. The defendant leased the property to the plaintiff’s mother. The first count of the complaint was based on liability of a contractor for injury from negligence in construction; the second count was based on liability of a lessor for injury from a latent defect in the premises known to him.
“Upon appeal, the Supreme Court of California, in an opinion by Edmonds, J., reversing the judgment entered on a nonsuit, sustained negligence of a building contractor as a ground of liability for damages for an injury to a third person occurring after completion and sale of the building, where the defect was such that it would be reasonably certain to place life and limb in peril. ■
“However, plaintiff’s contention as to liability of the defendant as a lessor for allowing plaintiff to occupy the leased premises in ignorance of a known latent defect was rejected on the ground that knowledge of the defect, imputed to the defendant as a contractor, was unavailable to charge him as a lessor.
“Carter, J., concurred in that part of the majority opinion reversing a nonsuit as to defendant’s liability as a contractor, but dissented as to sustaining the nonsuit on the theory of liability as a lessor.”
There is an extensive annotation to this case at page 191.
To me the Supreme Court of California committed grievous error in this case as is shown by the discussion of the rule of non-liability at page 201, which is:
“Most courts, in passing upon the question of building or construction contractor’s liability for negligence resulting in injury or damage to third persons after the completion of the work and acceptance thereof by the owner, start with the assumption of what they consider to be the general rule that the contractor is not liable for such injuries to third person, on the theory that no privity of contract exists between the contractor and such third person, and that no duty is owed by the contractor in performing the contract to one other than the contractee. This rule is enunciated not only in the cases in which the plaintiff is denied recovery, but also in the cases in which the plaintiff is allowed recovery under the exceptions to the rule.
“The rule that a construction or building contractor is not liable for injuries or damage to a third person with whom ha is not in contractual relation, resulting from the negligent performance of his duties under his contract with the contractee when tire injury or damage is sustained after the acceptance of the completed work by the owner or contractee, may be said to be supported by the following cases, in most of which recovery was denied, and in some of which recovery was allowed under an application of an exception to the rule.”
Thirty-two states sustain this rule and among them are Armstrong v. City of *860Tulsa, 102 Okl. 49, 226 P. 560 and Howard v. Reinhart & Donovan Co., 196 Okl. 506, 166 P.2d 101.
Among the many cases cited in this annotation is that of Schott v. Ingargolia, La.App.1938, 180 So. 462, in which case it was held:
“It was held in Schott v. Ingargolia (1938 La.App.) 180 So. 462, that a building contractor is not liable to a third person who is injured by the fall of a building which the contractor constructed three years prior to the accident, even where the collapse of the house was directly occasioned by his unskilful and defective workmanship in its construction or repairs, since at the time of the occurrence of the accident he owed to such third person, a visitor of the owner of the building, no duty of care, and since the owner of the building, who had the custody and control of it at that time, assumed full responsibility for its condition. * * * ”
It is quite apparent from this note that there have been a few cases that would place liability on a builder-vendor but they are principally cases that allege fraud, deceit or a covering up of the alleged defect.
I still maintain that the evidence in this case shows no such conduct on the defendant’s part.
The third case in A.L.R.2d is Hanna et al. v. Fletcher, 97 U.S.App.D.C. 310, 231 F.2d 469, 58 A.L.R.2d 847. There damages were sought by tenant for bodily injuries sustained when a stairway railing collapsed. Plaintiff’s opening statement contained detailed specifications of omissions and negligent acts in the course of repair work. The trial court granted judgment for defendants on opening statement of counsel. The appellate court reversed the case as to defendants and held that the contractor could be held liable for negligence proximately resulting in injuries to tenant notwithstanding absence of privity of contract between them. Three Justices dissented in this case and three concurred with the writer of the opinion.
This case, too, is followed by an extensive annotation on the negligence of building or construction contractor as ground of liability on his part for injury or damage to third person occurring after completion and acceptance of the work.
The rule of nonliability as to building contractor still carries the weight of authority as is shown at page 873 of 58 A.L.R.2d.
Although there are three or four cases that a builder-vendor would be held liable as to imminently or inherently dangerous construction or knowledge of danger or fraud and concealment of defects or wilful negligence by the contractor, yet the majority of cases still say the builder-vendor is not liable. Caporaletti v. A-F Corp., D.C., 137 F.Supp. 14, is a recent case which takes the plaintiff’s view but the facts in that case are considerably different than in the case at bar.
Even though I were willing to go along with these exceptions, I say that the burden is still upon the plaintiff to bring her case under these exceptions and this she has failed to do. There simply was not sufficient evidence to go to the jury on these questions. Too many things could have caused the weakening of the support of this porch from construction to collapse for me to put such a burden on the defendant as was done by the trial court.
I dissent.