304 Mass. 212 | Mass. | 1939
The jury returned a verdict for the plaintiff in this action of tort for personal injuries, suffered as the result of a fall alleged to have been caused by the defective condition of "a house belonging to the defendant. The trial judge, under leave reserved (G. L. [Ter. Ed.] c. 231, § 120), entered a verdict for the defendant, and reported the case to this court with the stipulation that, “if the case was properly submitted to the jury, judgment to be entered for the plaintiff on the verdict, otherwise, judgment to be entered for the defendant.”
In the front window of an unoccupied house owned by the defendant there was a sign reading: “For Rent, Real
1. There was no evidence in the case to warrant a finding
2. The question of the implied or apparent authority of Miss Carnevale was for the jury. Such a question is usually one of fact, the answer to which depends upon the inferences to be drawn from a variety of circumstances relating to the conduct of the apparent agent, and whether the circumstances are such as to warrant persons dealing with him, in the exercise of reasonable prudence and discretion, to believe he has authority to represent the alleged principal in regard to the transaction in question. Rintamaki v. Cunara Steamship Co. Ltd. 205 Mass. 115, 117. Miss Carnevale was the employee of the defendant who answered its telephone when the plaintiff called. It was the business of the office in which she was employed to procure tenants. The defendant's name did not appear upon the sign displayed in the window but readers of it were referred to “Real Estate Department, 82 Middle Street. Tel. 2230.” The plaintiff could have gone to the address or, in accordance with- the directions on the sign, it was the reasonable thing for her to telephone to the number indicated for the purpose of making her inquiries. It is not unreasonable, as a matter of law, that the person who answered the telephone in the circumstances disclosed was assumed by the plaintiff to possess the authority which she seemed to have. Denny v. Riverbank Court Hotel Co. 282 Mass. 176, 179. Compare Malcolm v. Travelers Ins. Co. 275 Mass. 190, 193. The question of the implied or apparent authority of the clerk was for the jury, and there was no error in the admission of the telephone conversation. McDonald v. Dr. McKnight, Inc. 248 Mass. 43, 48. Twombly v. Framingham Gas, Fuel & Power Co. 248 Mass. 53, 55. Denny v. Riverbank Court Hotel Co. 282 Mass. 176, 179. Irving Tanning Co. v. Shir, 295 Mass. 380, 383. See Kees v. Wm. Filene’s Sons Co. 297 Mass. 142. The case is distinguishable from O’Leary v. Fash, 245 Mass. 123; Wojcik v. Cadillac Berkshire Co. 256 Mass. 317; Kowalczyk v. Murphy, 295 Mass. 551.
3. The defendant does not contend that the plaintiff was
So ordered.