Robinson v. Heil

⁶⁴⁶ Burke, J., delivered the opinion of the Court. The appeal in this case was taken by the defendant from a judgment for one thousand dollars entered against her in the Baltimore City Court in a suit for personal injuries sustained hy Maggie Heil, an infant, under the following circumstances : Alice Robinson, the defendant below, and appellant here, at the time of the injuries complained of was the owner of a dwelling house in Baltimore City, situated on North Caroline street. Drayton M. Hite, a real estate dealer, had charge of the house with authority to rent the same amd to collect the rents. About the 1st of June, 1914, he rented the house from month to month at a monthly rental of twenty dollars, payable in advance, to Mrs. Maggie Heil, the mother of the infant plaintiff.

The entrance to the basement was by means of steps leading from the street, and the usual and customary way of entering the house was by the use of these steps. In November, 1914, at night, when the plaintiff, who was then twelve years of age, was entering the house by these basement steps, they collapsed and threw her. She was very seriously, and, perhaps permanently injured. The painful and serious nature of her injuries is fully established by the evidence, and was not really disputed.

The injury occurred more than five months after the rental of the premises. The facts upon which the plaintiff bases her right to recover, as set out in the declaration, are that at the time Mr. Hite, the agent of the defendant, rented the premises to the mother of the plaintiff: “It was expressly agreed and understood between them that all repairs would be made by the landlord and owner of property, and that a certain step leading from the street to said dwelling was specifically mentioned by said Maggie Heil to the agent of the defendant as being one of the repairs which should be made at once; that said agent for the defendant thereupon agreed to fix and repair said steps as well as make other repairs upon said dwelling, and as a result of ⁶⁴⁷ said agreement the said Maggie Heil paid the rent to the said agent of the defendant, and moved into the premises, and became the tenant of the said Alice Robinson; that the said steps were out of repair and were carelessly and negligently permitted to so remain by the defendant, although the said defendant through her agent from time to time promised to fix and repair them; and as a result of the carelessness and negligence of the defendant in permitting the said steps to remain in a dangerous condition, although she had full knowledge of the defective and dangerous condition of said steps prior to the rental of the said dwelling to the plaintiff’s mother, and although she was from time to time notified of the defective and dangerous condition of said steps by the tenant, Maggie Heil, she permitted them lo remain in such a dangerous and defective condition that, on or about the 26th day of November of the year 1914, Maggie Heil, the infant daughter of Maggie Heil, the occupant of said dwelling, while exercising due and proper care and caution, while walking upon said steps for the purpose of entering the home of her mother, was, by reason of the caving in and collapsing of said steps, due to their defective and dangerous condition, precipitated to the ground with great force and violence, and sustained serious, painful and permanent bodily hurt in and about her head, arms and back, and more particularly about her leg, knee, ankle and foot, and she suffered great mental pain and anguish, and is otherwise injured and damaged. “And the plaintiff says that the injuries aforesaid were caused solely by the carelessness a.nd negligence of the defendant in renting premises which she knew to he in a defective and dangerous condition at the time of the rental, and in maintaining and continuing the said defective and dangerous condition of the steps complained of, contrary to her agreement through her agent both at the time of the rental and subsequent thereto to keep premises in good condition, and make ⁶⁴⁸ necessary repairs, and more specifically to repair steps mentioned herein; and the plaintiff says she in no way directly contributed to the result.” There can be no doubt that these steps were in bad condition both before' and after the time the house was rented to Mrs. Heil. The prior tenant, Mrs. Levin, had called the attention of Mr. Hite to their bad condition. It is undisputed that prior to the time the property was rented to Mrs. Heil she called the attention of Mr. Hite to the condition of the steps, .and told him she would not take the house unless he would make the repairs, and her daughter, Mrs. Tarleton, testified that on three occasions after her mother had moved into the house she talked to Mr. Hite about the condition of the steps.

It was admitted that Drayton M. Hite was the agent of the defendant, clothed with all the authority generally exercised by x-eal estate agents. That he had no special instructions from the defendant. That it was his custom to account to her for the rent, and that he would deduct from the rent any repairs which he may have placed upon the property. Mrs. Heil testified to four distinct repairs that she required to be made as a condition of her renting the property, viz: the papering of two rooms on the second floor; the repair of the sink in the kitchen; the repair of the yard fence; and the repair of the basement steps.

She said that Mr. Hite did paper the two rooms and fix the sink, but wholly neglected to repair the steps or the yai*d fence. The 'Court admitted, subject to exception, the testimony of Mrs. Heil that Mr. Hite promised before she rented the house that he would make these repairs—-that she told him the steps looked like they were in bad condition, and that he said, “if they are not broken down, they will not hurt anybody, but I will fix them, and I will have everything repaired and fixed in the house for you and you can move in,” and that she did move in with that understanding—that, he promised to fix everything and put everything in good condition. ⁶⁴⁹ Mrs. Tarleton testified, subject to exception, that she paid the rent to Mr. Hite and told him that the steps should be fixed, and that he said: “Are they falling down?”, and I said, “No, sir.” He said, “Very well, you can walk on them and I will send a man down there and fix them.” The Oourt- overruled motions to strike out the testimony of Mrs. Heil and Mrs. Tarleton as to any promise or agreement made by Mr. Hite to make repairs, and these rulings constitute the first and second exceptions. It is important to know the exact condition of the steps, and the knowledge of this condition possessed by Mrs. Heil and the plaintiff before the injury. The plaintiff testified that before the injury no one had ever spoken to her about the steps.

After they had collapsed it was found that the support on the side of the wall was completely rotten, and that as the child put her foot upon the third step it gave away and threw her. Mrs. Heil, who is a widow, testified that she had noticed the condition of the steps before she moved in, but did not know they were rotten; that they looked like they were a little worn; that she did not know their condition was so had as disclosed after they had fallen. She said: “The steps looked like they needed fixing. They did not look like they were worn out in that way, but .they needed fixing', and I explained to him (Mr. Hite) that there might be an accident with them.

He said that as long as they were not tumbling down they were all right and he would fix them.” She further testified: “I told him that those steps looked like they needed fixing and I would like him to have them fixed first of all. He said, ‘They are not tumbling down, are they?’ And 1 said, ‘No, sir; they are not tumbling down.’ And be said, ‘then you can walk on them.’ I did not think any more about it. I thought if they are that safe then there is nothing more to do, we can walk on them, and that is why we walked on them. We had to use them.

They were the only entrance.” Upon the facts stated we think the Court committed no error in its rulings embraced in the first and second excep ⁶⁵⁰ tions. The agency of Drayton M. Hite was admitted and he had in fact made some repairs to the property, and it was further admitted that it was his custom to account to the defendant for the rent collected and deduct from the rent the cost of any repairs made. The character and extent of the repairs mentioned were such as were reasonably necessary to put the property in a safe and tenantable condition. The general rule is, established by many cases in this Court, that the extent of the agent’s authority, when, as here, the authority is not' conferred by -a written instrument, is a question of fact for the jury.

Consolidated Railway Co. v. Pierce, 89 Md. 495 ; Groscup v. Downey, 105 Md. 273 ; Brager v. Levy, 122 Md. 554 . In the last cited case the Court quoted and approved the following statement of the law from 31 Cyc. 1331: “While as between the principal and the agent, the scope of the latter’s authority, is that authority which is actually conferred upon him by his principal, which may be limited by secret instructions and restrictions,' such instructions and restrictions do not affect third persons ignorant thereof; and as between the principal and third persons the mutual rights and liabilities are governed by the apparent scope of the agent’s authority, which is that authority which the principal hás held the agent out as possessing or which he has permitted the agent to represent that he possesses and which the principal is estopped to deny. The apparent authority,, so far as third persons are concerned is the real authority, and when a third person has ascertained the apparent authority with which the principal has clothed the agent, he is under no further obligation to inquire into the agent’s actual authority. The authority must, however, have been actually apparent to the third person who, in order to avail himself of his rights thereunder, must have dealt with the agent in reliance thereon, in good faith, and in the exercise of reasonable prudence, in which case the principal will be bound by the acts of the agent performed in the usual and customary mode of doing such business, although he may have acted in ⁶⁵¹