fact, however, is that the principle advocated in the Restatement has been adopted and applied by some jurisdictions. The first step in the direction or accepting this innovation seems to have been taken in New York, Kilmer v. White, 254 N.Y. 64, 70-71, 171 N.E. 908, 910. After quoting from a tentative draft of the Restatement, which contained substantially the same doctrine as is now found in Section 353, the court wrote as follows on this point:
'Under this rule a vendor, innocent of conscious deception, is entitled to expect that his vendee will discover a condition which would be disclosed by such an inspection as the vendee should make before taking possession. On the other hand, if the vendor conceals a dangerous condition known to him, as by painting it over, or by giving assurances that the premises are safe when he knows the contrary to be the fact, he is not entitled to assume that the vendee will discover the condition in time to prevent injury to others. The vendor desires to sell the property. Knowledge by the vendee of its true condition might prevent a sale. Therefore, the vendor's conduct must be such that it will not prevent the vendee from learning of the concealed defects by making a proper inspection. Otherwise, the vendor remains subject to liability for harm caused to the licensees of the vendee until the vendee has discovered the true condition. The fault is his, and the liability is his. * * *
'The New York rule, so far as expressed by this court, does not cast on the vendee any duty of inspection before taking possession.'
In Pharm v. Lituchy, 283 N.Y. 130, 132, 27 N.E.2d 811, the New York court again applied this principle and formulated it in the following language:
'At common law it is the general rule that an owner of land ceases to be liable in negligence for its condition when the premises pass out of his control before injury results. * * * However, at common law there are exceptions and one of these is where a nuisance exists on the premises.'
These rulings were followed in McCabe v. Cohen, 294 N.Y. 522, 525, 63 N.E.2d 88, in the following language:
'There was evidence from which the jury could have found that the president of the defendant-appellant knew that the fire escapes, including the stairway in question, were 'at a point where further corrosion would make them dangerous'; that he had reason to believe that the vendee would not realize the risk involved and that he failed to disclose this condition to the vendee. Under the rule approved in Kilmer v. White, 254 N.Y. 64, 171 N.E. 908, and in Pharm v. Lituchy, 283 N.Y. 130, 27 N.E.2d 811, the trial court properly refused to dismiss the complaint. Restatement of Torts, § 353.'
Within the past two years this doctrine was recognized by the United States Court of Appeals for the Fifth Circuit, although only by way of dictum, in United States v. Inmon, 5 Cir., 205 F.2d 681, 684. The court stated:
'Generally, the liability of a grantor of real property for the dangerous or defective condition of the premises ceases upon the transfer of possession and control, regardless of whether the person injured is the transferee, or some third person to whom a duty of care is owed. * * * The rule is subject to the qualification that, if the grantor knows of a latent defect or danger on the premises, and misleads the transferee into believing the premises are safe, or fails to disclose the defect when he has reason to believe that it will not be discovered by him, he may nevertheless be liable for any injury resulting therefrom. Restatement, Torts, Sec. 353; see, also, Sec. 354, Com. b.'
In the light of the foregoing discussion, this court will adopt and apply the principle that a builder who defectively constructs a house, is liable to the purchaser or any other invitee, for personal injuries sustained by the latter, if the defect could not have been discovered on inspection by the ordinary man in the street. In this case the builder must be charged with knowledge of his own negligence. The defect was of such a character that only a person skilled in the details of building construction could have discovered it and realized its significance. Under the circumstances, the court is of the opinion that the builder and vendor should be held liable for personal injuries caused to the purchaser, or any invitee, as a result of this negligence.
Motion for judgment notwithstanding the verdict, or in the alternative for a new trial, is denied.