ekice; l
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 th© 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 [291]*291the time of the making thereof^ there existed a certain cellar-way 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 recover w’hich 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 [292]*292facts sufficient to constitute a cause of action. Tbe lower court sustained tbe demurrer, and plaintiff electing not to amend ber complaint further, a judgment dismissing tbe action was duly entered against ber, from wbicb sbe prosecutes this appeal.
There are various errors assigned, but, in view of tbe conclusion reached, we shall consider but tbe one error, to wit, did tbe court err in sustaining tbe demurrer upon tbe ground that tbe complaint does not state a cause of action, and in entering judgment dismissing tbe áction ? It will be observed that plaintiff seeks to recover judgment against an insane or incompetent person, and thus bold ber estate liable. While tbe action is one sounding in tort, it seems to be based upon a contract or agreement made by tbe guardian of tbe defendant in respect to repairs to be made by him on tbe cellarway. In this view it is clear that, if tbe defect in tbe cellarway bad been repaired, as alleged, tbe plaintiff would not have fallen into it •, and hence there would have been no cause for this action. Tbe demurrer, of course, admits tbe agreement, as alleged, together with all other facts properly pleaded.
Tbe theory upon which plaintiff seeks to recover in this action is not very clear. Tbe agreement by tbe guardian to make tbe repairs is perhaps pleaded for tbe purpose of avoiding tbe application of tbe doctrine of contributory negligence against, or assumption of, tbe risk by tbe plaintiff. If it is not for this purpose, we can conceive of no other unless it be for tbe purpose of recovering as upon a breach of said agreement, from wbicb tbe injury arose. If recovery is sought upon tbe ground that the plaintiff relied upon tbe special promise of tbe guardian to repair tbe cellarway, and that tbe guardian in making tbe promise thereby assumed tbe risk of injury therefrom, then a recovery against defendant would be possible only upon tbe ground that tbe guardian acted as tbe authorized agent of tbe defendant, and, as such agent, could, and did, bind ber in that regard.
In this case, however, tbe principle upon which tbe relation of principal and agent is based, wholly fails. There cannot be an agent unless there is a principal. In order to' create tbe [293]*293relation there must exist a person who is competent to select and appoint an agent to' act for tbe principal. An agent can and does exercise delegated powers only, and an incompetent person cannot delegate powers arising, either directly or by implication of law. The doctrine of principal and agent, therefore, cannot apply between an insane person and his guardian, at least not where the insane person is sought to be held upon a default of the supposed agent’s personal promise or undertaking. This is settled by the case of Andrus v. Blazzard, 23 Utah 233, and authorities cited at pages 248, 249, 63 Pac. 888, 54 L. R. A. 354. The exceptions to the general rule above stated and' referred to in fdecbem on Agency, section 48, and the other authorities cited by counsel for appellant, have no application to this case. The case of In re Strasburger, 132, N. Y. 128, 30 N. E. 379, is one of that class of cases where a person, after entering into a lease containing certain covenants, become insane, and his estate is sued for a breach of these covenants. In such cases the covenants do not cease, although the covenantor becomes insane or incompetent. His estate must still comply with the covenants, or become liable thereon. Neither is the ease of Stillwell v. So. Louisville Land Co. (Ky.), 58 S. W. 696, 52 L. R. A. 325, cited by counsel for appellant, applicable to the facts in the case at bar. It is true that the agreement set forth in that case, is in many of its features, much like the one in this case, but in that case the agreement was pleaded -for the sole purpose of avoiding the defense of contributory negligence In that case the agreement was made with the owner of the property, personally, and such owner was sued, and it was held that the tenant had a right to rely on the promises of the owner that he would repair the defect in the premises, and that by this promise the owner assumed the risk of injury to the child of the tenant; and hence the tenant, was not guilty of contributory negligence in permitting his child to be on the leased premises. Both the defect and the circumstances were, however, different than they are in the case at bar. If in this case, suit were brought against the guardian personally, the [294]*294question would be presented, in one phase perhaps, that is presented in that case. In the case at bar, however, the plaintiff is presumed to know the law.
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ekice; l
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 th© 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 [291]*291the time of the making thereof^ there existed a certain cellar-way 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 recover w’hich 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 [292]*292facts sufficient to constitute a cause of action. Tbe lower court sustained tbe demurrer, and plaintiff electing not to amend ber complaint further, a judgment dismissing tbe action was duly entered against ber, from wbicb sbe prosecutes this appeal.
There are various errors assigned, but, in view of tbe conclusion reached, we shall consider but tbe one error, to wit, did tbe court err in sustaining tbe demurrer upon tbe ground that tbe complaint does not state a cause of action, and in entering judgment dismissing tbe áction ? It will be observed that plaintiff seeks to recover judgment against an insane or incompetent person, and thus bold ber estate liable. While tbe action is one sounding in tort, it seems to be based upon a contract or agreement made by tbe guardian of tbe defendant in respect to repairs to be made by him on tbe cellarway. In this view it is clear that, if tbe defect in tbe cellarway bad been repaired, as alleged, tbe plaintiff would not have fallen into it •, and hence there would have been no cause for this action. Tbe demurrer, of course, admits tbe agreement, as alleged, together with all other facts properly pleaded.
Tbe theory upon which plaintiff seeks to recover in this action is not very clear. Tbe agreement by tbe guardian to make tbe repairs is perhaps pleaded for tbe purpose of avoiding tbe application of tbe doctrine of contributory negligence against, or assumption of, tbe risk by tbe plaintiff. If it is not for this purpose, we can conceive of no other unless it be for tbe purpose of recovering as upon a breach of said agreement, from wbicb tbe injury arose. If recovery is sought upon tbe ground that the plaintiff relied upon tbe special promise of tbe guardian to repair tbe cellarway, and that tbe guardian in making tbe promise thereby assumed tbe risk of injury therefrom, then a recovery against defendant would be possible only upon tbe ground that tbe guardian acted as tbe authorized agent of tbe defendant, and, as such agent, could, and did, bind ber in that regard.
In this case, however, tbe principle upon which tbe relation of principal and agent is based, wholly fails. There cannot be an agent unless there is a principal. In order to' create tbe [293]*293relation there must exist a person who is competent to select and appoint an agent to' act for tbe principal. An agent can and does exercise delegated powers only, and an incompetent person cannot delegate powers arising, either directly or by implication of law. The doctrine of principal and agent, therefore, cannot apply between an insane person and his guardian, at least not where the insane person is sought to be held upon a default of the supposed agent’s personal promise or undertaking. This is settled by the case of Andrus v. Blazzard, 23 Utah 233, and authorities cited at pages 248, 249, 63 Pac. 888, 54 L. R. A. 354. The exceptions to the general rule above stated and' referred to in fdecbem on Agency, section 48, and the other authorities cited by counsel for appellant, have no application to this case. The case of In re Strasburger, 132, N. Y. 128, 30 N. E. 379, is one of that class of cases where a person, after entering into a lease containing certain covenants, become insane, and his estate is sued for a breach of these covenants. In such cases the covenants do not cease, although the covenantor becomes insane or incompetent. His estate must still comply with the covenants, or become liable thereon. Neither is the ease of Stillwell v. So. Louisville Land Co. (Ky.), 58 S. W. 696, 52 L. R. A. 325, cited by counsel for appellant, applicable to the facts in the case at bar. It is true that the agreement set forth in that case, is in many of its features, much like the one in this case, but in that case the agreement was pleaded -for the sole purpose of avoiding the defense of contributory negligence In that case the agreement was made with the owner of the property, personally, and such owner was sued, and it was held that the tenant had a right to rely on the promises of the owner that he would repair the defect in the premises, and that by this promise the owner assumed the risk of injury to the child of the tenant; and hence the tenant, was not guilty of contributory negligence in permitting his child to be on the leased premises. Both the defect and the circumstances were, however, different than they are in the case at bar. If in this case, suit were brought against the guardian personally, the [294]*294question would be presented, in one phase perhaps, that is presented in that case. In the case at bar, however, the plaintiff is presumed to know the law. She knew that she was dealing with thé guardian of an insane person, and that, therefore, the- guardian could not bind the insane person by the agreement; and hence she should have governed herself accordingly. She had no right to go upon the assumption that the estate of the insane person would, as a matter of law, be held liable in case she was injured by reason of the guardian’s failure to comply with this agreement to close up the open cellarway. A>s against the estate of the insane person, we are clearly of the opinion that it was plaintiff’s duty to guard against injury from that source; that, with full knowledge of the conditions surrounding her, as clearly appears from the allegations of the complaint, she assumed the risk of injury. Under the allegations of her complaint she became simply a tenant, and, as such, was charged with full knowledge of the legal rights and duties pertaining'to that relation. It will, we think, not be disputed that, in the absence of deceit or misrepresentation by the landlord, the tenant will take the risk of the condition of the premises leased by him, and, if injured by reason of their unsafe condition, especially when open and unconcealed, as a general rule, cannot recover against the landlord for such injury.
In the case at- bar there was neither deceit nor misrepresentation, and the contract or agreement made by the guardian, as we have seen, was not binding upon the insane owner of the property; hence her estate, if bound at all, would have to be bound under the general law applicable to the relation of landlord and tenant. Under this law the plaintiff does not state a cause of action. (Tuttle v. G. F. Gilbert Mfg. Co. [Mass.], 13 N. E. 465.) Under the authorities, she was guilty of contributory negligence, and likewise of having assumed the risk of injury, in view of her knowledge of the de.fect complained of, and, after knowledge thereof, having continued in the possession of the premises. The case of Hamilton v. Feary (Ind. App.), 35 N. E. 48, 52 Am. St. Rep. 485, is a well-considered case. Under the law, as stated in that [295]*295ease, tbe plaintiff could not recover against tbe defendant in view of tbe allegations of tbe complaint even if tbe defendant had been a competent person, and bad personally made tbe agreement set forth in tbe complaint. Tbe plaintiff would, as against her landlord, have bad no right to expose herself to the risk of injury from existing and visible, defects in tbe premises leased by her. It was her duty to repair tbe defect and deduct tbe expense therefor from tbe rent, or she might under tbe lease in this case, have surrendered tbe premises. She chose to do neither; and hence cannot recover. Tbe following cases all support the. conclusions reached by us: Kampinsky v. Hallo (City Ct.), 23 N. Y. Supp. 114; Kabus v. Frost, 18 Jones & S. (N. Y.) 72; Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245, 50 Am. Rep. 659; Arnold v. Clark, 13 Jones & S. (N. Y.) 252; Hendry v. Squier, 126 Ind. 19, 25 N. E. 830, 9 L. R. A. 798; Town v. Armstrong, 75 Mich. 580, 42 N. W. 983.
We do not wish to be understood as bolding that, in a proper case, tbe tenant might not recover against tbe landlord for personal injuries sustained by tbe tenant arising from defective premises. What we do bold is that tbe case at bar does not fall within tbe principles of law where such a recovery is permissible. _
Tbe court, therefore, did not err in sustaining tbe demurrer, and in dismissing tbe action.
Tbe judgment is affirmed, with costs.
McCARTY, C. J., and STRAUP, J., concur.