158 Mich. 206 | Mich. | 1909
(after stating the facts). The unsafe con-
dition of the windows is sufficiently described in the declaration and constitutes a cause of action for which somebody should be held responsible. No action can be sustained against the estate because plaintiff’s cause of action arose after the death of Jeremiah P. Woodbury. The heirs are not made parties. Whether they are liable for the unsafe condition of the building is not before us. It is true that the administrator is not usually entitled, under our statute, to the possession of the real estate. The demurrer, however, admits that he is in charge and control of the building. It will be assumed that he is legally, in control and possession until the contrary is shown. An administrator may be lawfully in the possession of the real estate of the intestate. If so, it would be his duty to keep it in a safe condition, so as to protect travelers along the streets. The allegation that he is administrator, and that
An agent in the control of property is responsible for his own tortious acts. Ellis v. McNaughton, 76 Mich. 237 (42 N. W. 1113, 15 Am. St. Rep. 308). Ferrier v. Trepannier is very similar to this case. A window fell and killed a traveler. The cause of the fall was the same as in this case. The declaration was framed in a similar manner, and the court say :
“They [the defendants] were, at the time, in actual possession of this building. It was under their exclusive control and superintendence, whether as trustees or executors, as depositaires or sequestrators, or in any other fiduciary capacity whatever, does not make the least difference, or lessen in any way their own personal liability for tortious negligence whereby a third party suffered damages.”
In Shepard v. Creamer, suit was brought against the defendant as trustee, where the plaintiff, a traveler on the highway, was injured by a fall of snow and ice from the roof on an abutting building of which the defendant had control as trustee. It was held that the description of the defendant as trustee was surplusage, and the defendant was held individually liable. In Belvin’s Ex’rs v. French, defendants were sued as executors for negligence in failing to keep a hotel property in proper repair. Held that, while they were not liable as executors, they were liable individually, and the allegation that they were executors was held merely a descriptio personae and surplusage.
The judgment should be reversed, and the case remanded for further proceedings according to the rules and practice of the court.
