Reams v. Taylor

• Decision Date: 04 December 1906
• Docket Number: 1781
• Citation: 87 P. 1089,31 Utah 288
• Court: Utah Supreme Court
• Parties: REAMS v. TAYLOR

87 P. 1089

31 Utah 288

REAMS v. TAYLOR

No. 1781

Supreme Court of Utah

December 4, 1906

Appeal from District Court, Salt Lake County; T. D. Lewis, Judge.

Action by Mrs. L. J. Reams against Josephine Taylor. From a judgment dismissing the action, plaintiff appeals.

AFFIRMED.

C. S Patterson for appellant.

APPELLANT'S POINTS.

The guardian having the authority, and it being his duty to rent the premises, he is also authorized to make necessary repairs and to make those necessary repairs no authority from the court is necessary. (Waldrip v. Tully, 48 Ark. 297 3 S.W. 192; Cheney v. Roadhouse, 135 Ill. 257, 25 N.E. 1619; Bent v. Barnett, 90 Ky. 600, 14 S.W. 596; Kilpatrick's Appeal, 113 Pa. 46, 5 A. 8.

A statute providing that conservators shall have charge of and manage the estates of their wards is held to confer upon them the power to make leases for a reasonable time of the real estate of their wards. (Woerner on Guardianship, p. 487.)

The guardian of a lunatic stands in a different relation than that of guardian of a minor. In the former case he is but the bailiff or agent of his ward. (In re Strasburger, 132 N.Y. 138; People v. Tax Com'rs, 100 N.Y 215; Warden v. Eichbaum, 3 Grant Cas. [Pa.] 42; Mechem on Agency, sec. 48.)

Stewart, Stewart & Budge for respondent.

RESPONDENT'S POINTS.

"The prevailing doctrine is that the guardian has no power to make a contract binding upon the ward or upon his estate, however proper and beneficial the contract may be; but that contracts made by him impose a personal liability upon himself, and his protection from loss lies in his right to charge the expenditures to the ward's estate in his account." (15 Ency. of Law [11 Ed.], p. 70.) This doctrine is supported by numerous citations in note 2 of Ency., from Alabama, California, Colorado, Connecticut, Georgia, Illinois, Indiana, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New Jersey, New York, and South Carolina. (Hunt v. Maldonado, 89 Cal. 636; Fish v. McCarthy, 96 Cal. 484.) The same rule is laid down in Woerner's American Law of Guardianship, pp. 185, 186, sec. 57.

That the administrator cannot bind the estate without authority from the court is clearly established in the following cases: Daly v. Daly, 66 Ala. 266; Richardson v. Palmerm, 24 Mo.App. 480, 490 and cases cited; Van Stoten v. Dodge, 135, N.Y. 327, 332; Eustace v. Johns, 38 Cal. 3.

In the case of Kampusky v. Hallo, 52 N.Y. S.Ct. 265, the doctrine is laid down that if a tenant continues to occupy premises, after knowing of the dangerous condition of the same, he will be guilty of contributory negligence. (Tuttle v. Gilbert Mfg. Co. [Mass.], 13 N.E. 465.) Damages for personal injuries to a tenant from failure to repair the premises is too remote and consequential. (18 A. & E. Ency. of Law [11 Ed.], 234.) Where the complaint shows that the plaintiff's own negligence contributed to and was the proximate cause of the injury the question of negligence becomes one of law for the court and where the plaintiff is guilty of such contributory negligence, he cannot recover. (Silcock v. Railroad, 22 Utah 179; Lowe v. City, 13 Utah 91; Cunnington v. Railroad, 4 Utah 206; Bowers v. Railroad, 4 Utah 215; Fowler v. Coal Co., 16 Utah 348; Butte v. Coal Co., 14 Utah 282; 2 Woerner on Administration, sec. 356.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

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 the 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 the time of the making thereof, there existed a certain cellarway which opened or extended into a driveway extending along some distance from said building, and which cellarway was distant four feet from the door which opened into the apartment leased and to be occupied by the plaintiff. "That at the time said plaintiff so leased said property from said defendant she called the attention of said Thomas E. Taylor, guardian and agent as aforesaid, to said cellarway, and to the dangerous condition thereof, and informed him that, if she leased said premises, she would require the defendant to protect said cellarway by means of a door or otherwise, in order to make the same safe, and avoid the danger of falling into said cellarway and receiving injury therefrom. That the said Thomas E. Taylor, guardian and agent, as aforesaid, at that time promised and agreed to make said cellarway safe, and to cover the opening by means of a door." About a month after the leasing and occupancy of said apartment by plaintiff, and at the time when said guardian called for the first monthly installment of rent, plaintiff again called his attention to said cellarway, which remained in the same condition as when she leased the apartment, and said guardian "again promised and agreed to have said cellarway sufficiently protected." That in leasing said premises plaintiff relied on the promises of said Thomas E. Taylor, and that, in case he had not promised to make the repairs aforesaid, she would not have leased said apartment and remained therein. That about two months after taking possession of said apartment the plaintiff, in going along said driveway, and in passing said cellarway, in attempting to reach the door leading to her apartment, in the nighttime, walked into said cellarway and fell, sustaining personal injuries and damages, to recovery which this action is brought. Thomas E. Taylor, the guardian, is not made a party to the action, nor is any recovery sought against him. He was, however, served with summons as the guardian of the defendant, she continuing to be an insane and incompetent person, and as such guardian he interposed a demurrer to the complaint setting forth various grounds, one of which is that the complaint does not state facts sufficient to constitute a cause of action. The lower court sustained the demurrer, and plaintiff electing not to amend her complaint further, a judgment dismissing the action was duly entered against her, from which she prosecutes this appeal.

There are various errors assigned, but, in view of the conclusion reached, we shall consider but the one error, to wit, did the court err in sustaining the demurrer upon the ground that the complaint does not state a cause of action, and in entering judgment dismissing the action? It will be observed that plaintiff seeks to recover judgment against an insane or incompetent person, and thus hold her estate liable. While the action is one sounding in tort, it seems to be based upon a contract or agreement made by the guardian of the defendant in respect to repairs to be made by him on the cellarway. In this view it is clear that, if the defect in the cellarway had been repaired, as alleged, the plaintiff would not have fallen into it; and hence there would have been no cause for this action. The demurrer, of course, admits the agreement, as alleged, together with all other facts properly pleaded.

The theory upon which plaintiff seeks to recover in this action is not very clear. The agreement by the guardian to make the repairs is perhaps pleaded for the purpose of avoiding the application of the doctrine of contributory negligence against, or assumption of, the risk by the plaintiff. If it is not for this purpose, we can conceive of no other unless it be for the purpose of recovering as upon a breach of said agreement, from which the injury arose. If recovery is sought upon the ground that the plaintiff relied upon the special promise of the guardian to repair the cellarway, and that the guardian in making the promise thereby assumed the risk of injury therefrom, then a recovery against defendant would be possible only upon the ground that the guardian acted as the authorized agent of the defendant, and, as such agent, could and did, bind her in that...