87 P. 1089 | Utah | 1906
This is an action for damages for personal injuries. The material allegations in the complaint are^ in substance, as follows : That the defendant is an insane person, and that one Thomas E. Taylor is the duly appointed and acting guardian of the person and estate of the defendant. That the defendant is th© owner of certain real estate in Salt Lake City, Utah, describing it, upon which is situate a certain two-story building used for tenement purposes. That at a time stated the plaintiff leased from Thomas E. Taylor, “agent and guardian” of the defendant, a part of said building to be occupied by plaintiff as a tenant. That the lease was oral, and that, at
There are various errors assigned, but, in view of tbe conclusion reached, we shall consider but tbe one error, to wit, did tbe court err in sustaining tbe demurrer upon tbe ground that tbe complaint does not state a cause of action, and in entering judgment dismissing tbe áction ? It will be observed that plaintiff seeks to recover judgment against an insane or incompetent person, and thus bold ber estate liable. While tbe action is one sounding in tort, it seems to be based upon a contract or agreement made by tbe guardian of tbe defendant in respect to repairs to be made by him on tbe cellarway. In this view it is clear that, if tbe defect in tbe cellarway bad been repaired, as alleged, tbe plaintiff would not have fallen into it •, and hence there would have been no cause for this action. Tbe demurrer, of course, admits tbe agreement, as alleged, together with all other facts properly pleaded.
Tbe theory upon which plaintiff seeks to recover in this action is not very clear. Tbe agreement by tbe guardian to make tbe repairs is perhaps pleaded for tbe purpose of avoiding tbe application of tbe doctrine of contributory negligence against, or assumption of, tbe risk by tbe plaintiff. If it is not for this purpose, we can conceive of no other unless it be for tbe purpose of recovering as upon a breach of said agreement, from wbicb tbe injury arose. If recovery is sought upon tbe ground that the plaintiff relied upon tbe special promise of tbe guardian to repair tbe cellarway, and that tbe guardian in making tbe promise thereby assumed tbe risk of injury therefrom, then a recovery against defendant would be possible only upon tbe ground that tbe guardian acted as tbe authorized agent of tbe defendant, and, as such agent, could, and did, bind ber in that regard.
In this case, however, tbe principle upon which tbe relation of principal and agent is based, wholly fails. There cannot be an agent unless there is a principal. In order to' create tbe
In the case at- bar there was neither deceit nor misrepresentation, and the contract or agreement made by the guardian, as we have seen, was not binding upon the insane owner of the property; hence her estate, if bound at all, would have to be bound under the general law applicable to the relation of landlord and tenant. Under this law the plaintiff does not state a cause of action. (Tuttle v. G. F. Gilbert Mfg. Co. [Mass.], 13 N. E. 465.) Under the authorities, she was guilty of contributory negligence, and likewise of having assumed the risk of injury, in view of her knowledge of the de.fect complained of, and, after knowledge thereof, having continued in the possession of the premises. The case of Hamilton v. Feary (Ind. App.), 35 N. E. 48, 52 Am. St. Rep. 485, is a well-considered case. Under the law, as stated in that
We do not wish to be understood as bolding that, in a proper case, tbe tenant might not recover against tbe landlord for personal injuries sustained by tbe tenant arising from defective premises. What we do bold is that tbe case at bar does not fall within tbe principles of law where such a recovery is permissible. _
Tbe court, therefore, did not err in sustaining tbe demurrer, and in dismissing tbe action.
Tbe judgment is affirmed, with costs.