Walker v. Davis

Opinion by

Williams, J.,

December 1, 1915, plaintiff rented a house, under a written lease, through the Kelly-Wood Real Estate Company, agents for the defendant, the owner. Plaintiff attempted to remove from the premises May 1, 1916. Defendant distrained upon plaintiff’s goods for the May rent. Plaintiff brought an action of replevin, filed a bond, and retained possession of her goods.

Plaintiff testified that some time before April 26,1916, defendant came to the house and told her she would have to move; that subsequently Mr. Sowash, the president of the Kelly-Wood company, told her she would have to move, as a city official had so directed. Offers, made by the plaintiff, to show that Sowash later ordered plaintiff to vacate, and said he was authorized by defendant to give the order, were refused by the court.

Defendant and Sowash denied ordering plaintiff to move. Sowash testified that he was only authorized to get a tenant and collect the rent.

The court in its charge made the case turn upon whether plaintiff had vacated the premises in pursuance of defendant’s orders. The jury found for defendant and judgment was entered on the verdict. Plaintiff appealed.

The controlling question raised by the assignments of error is whether the testimony in relation to Sowash’s order to vacate, and his statements asserting authority to make suck an order, should have been admitted in evidence.

We think it was both material and relevant. The act of the agent was an attempt to evict the tenant. An eviction suspends liability for rent: Gibson v. Earling, 48 Pa. Superior Ct. 566. While a stranger cannot make defendant liable for an eviction: Oakford v. Nixon, 177 Pa. 76, defendant may subsequently ratify the act and thus become liable. There was evidence that defendant had ordered plaintiff to remove. The offers excluded tended to prove that she continued of that mind, and would have corroborated plaintiff in her testimony as to defendant’s action. Nothing appears to show that the ■Kelly-Wood company’s authority was in writing, and presumably it was oral. The extent of the authority was, therefore, for the jury: Murphy v. Losch, 148 Pa. 171. An “eviction may be by the act of the landlord in person, or it may be by the act of a servant or agent for which he is answerable upon the general doctrine holding a principal liable for the misfeasance, or torts of a servant or agent; and direct or positive evidence that the wrongful act was done under the authority or by the consent of the landlord is not necessary. Such evidence is not often obtainable and the fact like any other controverted fact is capable of proof by circumstances”: 16 Ruling Case Law, p. 685. The circumstance that defendant ordered plaintiff to vacate was sufficient to make the subsequent conduct of her agent competent evidence of his special authority to order plaintiff to remove. Eviction is a tort, and the liability of a principal for the tort of his agent may be established by circumstances indicating the assent of the lessor.

The judgment is reversed and a venire facias de novo awarded.