Goodman v. Fernald

• Decision Date: 10 November 1936
• Citation: 154 Or. 654,61 P.2d 1253
• Parties: GOODMAN v. FERNALD et al.
• Court: Oregon Supreme Court

61 P.2d 1253

154 Or. 654

GOODMAN v. FERNALD et al.

Supreme Court of Oregon

November 10, 1936

In Banc.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by Louis Goodman against John Bailey Fernald, Wakefield Fries & Company, a corporation, and another, for damages for personal injuries sustained by plaintiff in falling through a defective flooring in the entrance of a leased store building, which flooring the defendant Wakefield Fries &amp Company as agents for the landlord had agreed to repair. From an order sustaining a demurrer interposed by Wakefield Fries & Company, and dismissing the action, the plaintiff appeals.

Affirmed.

C. W. Robison, of Portland (Leland B. Shaw, of Portland, on the brief), for appellant.

A. H McCurtain, of Portland, for respondents.

KELLY Justice.

The complaint herein contains the following allegations:

"I. That at the date of the accident and injury hereinafter mentioned Josephine Harker Fernald, deceased, was the owner of the certain store building located on Lot one (1) Block eleven (11), City of Portland, Oregon, known as 223 First Street (1007 and 1009 new numbers) in the City of Portland Oregon. That on November 10, 1933 Josephine Harker Fernald died, and defendants John Bailey Fernald and Chester Bailey Fernald are her heirs at law and now own or possess some interest in said real property.

"II. That during all the times herein mentioned, the said Wakefield Fries & Company were a corporation duly organized and existing under the laws of the State of Oregon for the purpose of the selling and rental of real property, houses, and store buildings; that among the said store buildings rented by the said Wakefield Fries & Company, was that store building known and designated as number 223 First Street (1007-1009, new number) in the City of Portland, County of Multnomah, State of Oregon and that said store building was rented by the plaintiff herein, Louis Goodman, at the agreed and accepted rental of Thirty-five ($35.00) Dollars per month.

"III. That on or about the 19th day of July, 1932, the said Louis Goodman noticed a certain sagging and falling in the entrance of the store building on that portion of the premises necessary to be traveled by the patrons of the store in their entrance and exit from said store building and that it was necessary for said patrons to walk over said portion of doorway in the entrance of said building in their ingress and egress of said store building; that the said Louis Goodman tested the defective portion by steppin(g) upon it, setting and resting his weight upon it and feared that the same was faulty and defective and might cause injury to the patrons of his establishment and to himself in his and their entrance and exits from said store building; that the said Louis Goodman called the firm of Wakefield Fries & Company, agents of the owner herein, to whom he paid his rent for a long period prior to said time and complained to them of said defective and faulty condition; that said Wakefield Fries & Company, acting for and on behalf of the owner of the property herein and in line with their scope of authority came to said place of business and examined said property and informed the said Louis Goodman that they believed the said property to be defective and assured him that if he would continue in said place of business and pay his rent thereof, that they would remedy said defects in said flooring entrance; and that said Louis Goodman relied upon said promise and continued said tenancy for a period of approximately one month; that nothing was done and the said Louis Goodman again notified the said Wakefield Fries & Company as to said condition and they informed him that as soon as their carpenter could get to the matter in a very short space of time they would repair said flooring and that they would make the same safe and useful; and that if he would continue in said premises they would make the necessary repairs immediately and that the said Louis Goodman relied upon said statements of said agents, Wakefield Fries & Company, and remained in said premises and continued to pay his rent and that said Wakefield Fries & Company in the collection of said rental sent a collector and agent and servant of said company to the place of business and collected said rent and assured the said Louis Goodman that in a very few days, if he would continue in said premises, they would fix the same; but that thereafter and within a week of said time, said flooring became so defective, rotten, and worn that the braces or underpinnings therefrom gave way and that in the emergency that arose at that time the said Louis Goodman was precipitated in and fell through said flooring, breaking and fracturing his right elbow; that the said Louis Goodman is a shoe merchant and repairer by trade and that said injury caused by defendants' herein failure to keep their contract with the said Louis Goodman caused him permanent injury caused him in said right elbow making it impossible for him to continue in his livelihood and caused him to expend __________ Dollars for doctor and hospital bills and caused him a permanent injury and damage in the sum of Twenty-five Thousand ($25,000.00) Dollars."

To this complaint, defendant, Wakefield Fries & Co. demurred upon two grounds:

(1) That the complaint does not state facts sufficient to constitute a cause of action against the defendant Wakefield Fries & Co.

(2) That it appears upon the face of the complaint that the action has not been commenced within the time limited by the Oregon Code.

The action of the trial court in sustaining said demurrer is the subject of review upon this appeal.

It will be noted that the complaint alleges that defendant, Wakefield Fries & Co. were "acting for and on behalf of the owner of the property herein and in line with their scope of authority."

"An authorized agent for a disclosed principal, in the absence of circumstances showing that personal responsibility was incurred, is not personally liable to the other contracting party." 3 C.J.S. p. 119, § 215, Subject, Agency, and cases cited in note 21 including Porter Const. Co. Berry, 136 Or. 80, 298 P. 179; Stark v. McKenna, 124 Or. 332, 263 P. 391; Hermann v. Clark, 108 Or. 457, 219 P. 608.

In those cases wherein the agent has been held liable for damages caused by the defective condition of property, the personal responsibility is based upon the control of the property by the agent.

Plaintiff cites the case of Mollino v. Odgen & Clarkson Corp. et al., 243 N.Y. 450, 154 N.E. 307, 49 A.L.R. 518. There, the agent had contracted with the owner and her attorney to take charge of the building "including its improvement and repair." The agent was held liable to a pedestrian injured by fall of portion of chimney.

In Lough v. John Davis & Co. et al., 30 Wash. 204, 70 P. 491, 496, 59 L.R.A. 802, 94 Am.St.Rep. 848, 17 Neg.Reg 146, also cited by plaintiff,...