Wendland v. Berg

Evans, J.

The plaintiff was a tenant of certain residence premises in Davenport. The owner was Margaret Harrington, nonresident of the city.

The defendants were related to such owner, and acted as her agents in the renting of said premises and in collecting the rents therefrom. The plaintiff originally rented the premises from a Mrs. William Harrington, another relative of the owner’s, and made the initial payment of rent to her. Thereafter, she paid all the rent to the defendants. After she had been in the occupancy of the premises about one year, she suffered a remarkable accident. The ground *203 gave way under her feet, and she fell into an excavation, 14 feet deep. She claims damages for her injuries from these defendants on the following grounds: (1) That the defendants were in the occupancy of the premises; (2) that they placed the plaintiff in occupancy thereof as tenant, and negligently failed to inform her of the hidden excavation, although they themselves had knowledge thereof.

As to the first ground, it is enough to say that defendants were not in occupancy of the premises in any other sense than that they acted as agents for the owner in reference thereto.

i. principal and nM-feasancft*: it appears from the evidence that there formerly been an old well upon these premises, which was not in use. In the year 1913, the then tenant of the premises obtained permission to fill it up, and did so. It was filled level with the ground, and the place thereof soon became grass-grown, and a part of the lawn. There was nothing on the surface to indicate any peril of any kind. The defendants knew of the existence of the old well, and knew that it had been filled up. They knew nothing which would cause them to' believe that any danger was covered thereunder. The accident to the plaintiff happened about four years after the filling of the well. The record offers no explanation of the cause of the hidden excavation, other than the inference that there must have been a process of settling, which caused the excavation into which the surface finally fell.

The evidence discloses no wrongful act on the part of the defendants in an affirmative sense. There was no misfeasance. If they can be charged with negligence, it must be because they failed to perform some duty owed by them to the plaintiff.

A defendant may not plead agency in defense of his wrongful act, to the injury of another. Even an agent'may be held personally liable for wrongful acts of misfeasance *204 committed by him. But when a charge of negligence against an agent is based upon mere nonfeasance, quite a different question is presented. Negligence by nonfeasance can occur only by failure to perform some duty owed to the injured party. It is the general rule, recognized in this state, that an agent is not personally liable to a third party for mere nonfeasance. Williams v. Dean, 134 Iowa 216 ; Minnis v. Younker Bros., (Iowa) 118 N. W. 532 (not officially reported).

2. Principal and aghnt : liability .of agent: rental of defective premises. In this case, the defendants did not know that any danger was lurking at the place in question. The evidence discloses nothing which imposed upon them the duty of inspection and discovery, even as between them and their principal. If they owed no such duty to their principal, they owed no more to the tenant of the principal. The tenant knew them as agents, and nothing more, and presumably knew that their duties as to the premises were limited by their obligations to the principal. The motion for a directed verdict was properly sustained, and judgment is — Affirmed.

Ladd, C. J., Preston and Salinger, JJ., concur.