Miller v. Smythe, 92 Ga. 154

Miller v. Smythe

92 Ga. 154 | Ga. | 1893

Lumpkin, Justice.

1. The error complained of is the overruling of a demurrer to the plaintiff’s declaration. The substance of the declaration and of the demurrer thereto will be found in the reporter’s statement. The main contention of the plaintiff in error was, that a trust estate could not be subjected to damages resulting from the negligence of the trustee, whether the same be regarded as a breach of contract, or as a breach of duty amounting to a tort. It was insisted that under section 3377 of the code, there could be no recovery against a trust estate except “for services rendered to said estate, or for articles, or property, or money, furnished for the use of said estate.” The section declares that any person having against a trust estate a claim of the kind indicated by the words just quoted, “or where a court of equity would render said estate liable ” may proceed at law for the collection of the debt. The words last quoted are of considerable importance, and the entire section simply means that any person having a valid claim against a trust estate may collect and enforce the payment of the same without resorting to a court of equity, and the section does not limit the liability of trust estates to the payment of such claims only as are indicated by the words first quoted. Besides, under the uniform procedure act of October 24th, 1887; there can be no doubt of the right to proceed by a petition at law, with proper allegations, to enforce any kind of a just demand against a trust estate.

The real question therefore, is: can the trust estate in the present case be made liable for damages occasioned by the failure of the trustee to repair and put in safe condition the shelving in the store rented to the plaintiff? It will be observed that the declaration expressly alleges the trustee agreed to keep the store and shelving in thorough order and repair. Even without *158this distinct agreement, it would, under section 2284 of the code, have been the duty of the trustee, as landlord, to keep the premises in proper repair. There can be no doubt that Mr. Miller, as trustee, had authority to rent the premises to the plaintiff'. He therefore legally and rightfully, in his capacity as trustee, assumed the relation of landlord; and this being true, it is, to our minds, a plain proposition, both of law and of justice, that he was bound to perform the duty, enjoined by statute upon all landlords, of keeping the premises in repair, and especially so when he expressly undertook by agreement with his tenant so to do. It follows necessarily that he is, in his representative capacity, liable to the plaintiff for a violation of this duty and of the contract he made in pursuance thereof. And this is right; because the trust estate obtained the benefit of the contract made by the trustee, and should, as to the tenant, bear whatever burden the law imposes upon landlords. As to the ultimate liability, if any, of the trustee to the cestui que trust for his failure to perform his duty in the respect indicated, we are not now called upon to determine. "We simply hold that if the plaintiff supports by evidence the allegations of her declaration, she is entitled to a judgment subjecting the trust estate to whatever damages she may have sustained.

2. It was also contended that the plaintiff’ ought not to recover, because her declaration sets forth facts which show that her own negligence either wholly caused, or very largely contributed to, the injury complained of. We do not think this a fair construction of the declaration. It expressly alleges that, “without cause or negligence on her part, the said shelving broke, fell down, and destroyed a large quantity of her stock,” etc. In view of this allegation, and also of the fact that the declaration nowhere concedes, either directly or by necessary implication, that there was any fault or neg*159ligence on her part, it is, in our opinion, a question for the determination of a jury as to whether or not her conduct caused the injury, or contributed thereto, and if so, to what extent. Judgment affirmed.