Marston v. Reynolds

• Decision Date: 22 May 1912
• Parties: MARSTON v. REYNOLDS. SAWTELLE v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

211 Mass. 590

98 N.E. 601

MARSTON

v.REYNOLDS.

SAWTELLE

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1912.

Exceptions from Superior Court, Suffolk County; Charles F. Jenney, Judge.

Actions by Agnes F. Marston and William R. Sawtelle, administrator, both against Joseph F. Reynolds. Verdict for plaintiff in each case, and defendant brings exceptions. Exceptions overruled.

Reynolds, the owner, testified that Hobbs, the real estate agent, had full charge of the house, and it was his duty to show people about the same, with a view of renting it when it became vacant, and that the witness had nothing to do with the details of renting or repairing the premises; that Hobbs was a real estate agent having charge of the estates of 15 or 20 different owners; that the witness knew nothing about the advertising of the property to let; that Hobbs had had charge of it for about five years, and that the witness had purchased it some time before the accident; that Hobbs' authority included the authority to advertise, but he had no special authority to advertise; and that Hobbs attended to the collecting of rents and repairing of the property, and accounted to the witness for the rental, after deducting his charges and the expenses.

Reynolds also testified that he never knew or heard of Mr. Otis, until after the accident, and never gave him any instructions whatever. Other witnesses testified that Otis, who was dead at the time of the trial, stated that he was employed by Hobbs, who was in the real estate business; that he had stated that he had charge of the house and the keys to it, and was showing the plaintiff through the house at the time of her injury.

Hobbs testified that he was a real estate agent and had been in the business since 1885; that he had some 30 or 40 estates in his charge, which he took care of for the owners, collecting the rents and looking out for the repairs, and having the general oversight of the property; that he secured tenants and rented the property; that he made a contract with the defendant Reynolds, to take charge of the property where the plaintiff was injured, as a real estate agent, for 5 per cent. of the rentals, and was to look after repairs and keep general oversight over it; and that he employed Otis to sweep and dust up the house and show it to customers who wanted to rent it.Jos. A. Dennison and Robt. Gallagher, both of Boston, for plaintiffs.

Geo. M. Stearns and Wm. Reed Bigelow, both of Boston, for defendant.

DE COURCY, J.

[1] The principal plaintiff, Agnes F. Marston, hereinafter referred to as the plaintiff, sustained the injury complained of while she was examining an unoccupied house with a view to renting it. The defendant owned the property and employed the real estate agent, Hobbs, who had thirty of forty estates in his charge, to rent and care for this and seven other houses. Whether Hobbs was an independent contractor, as assumed in the defendant's fourth request, or an agent of the defendant, as the plaintiff contended, was for the jury to say; and they were warranted by the evidence in finding the latter and that Hobbs was acting within the scope of his employment as such agent in advertising the house to let and in employing Otis to show it to prospective tenants. Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287;Delory v. Blodgett, 185 Mass. 126, 69 N. E. 1078,64 L....