Skerl v. Willow Creek Coal Co. , 92 Utah 474 ( 1937 )

I concur on the ground that under the evidence the jury were warranted in finding from the evidence that the party which entered the mine had at least implied permission to enter. The failure of Howard (who certainly as president and in active charge of surface operation had ostensible authority to permit or refuse them admission) to forbid them to enter and Jackson's positive permission to go in certainly would be sufficient to take the party out of the category, if any, of those who could not take advantage of the company's negligence in keeping powder in the mine in violation of the law. Certainly, such provision of the law was intended at least to protect any one lawfully in the mine. And the party was lawfully in the mine if Jackson had real or apparent authority to admit them.

Apparent authority must be "apparent"; that is, the act in question which is done by the agent must be such an one which would seem to be within the purview of his actual authority. Thus, a broker engaged to negotiate a loan and obtain money for a client ostensibly has authority to receive the money on delivery to the lender of the papers, even though his client has not in fact authorized it. Wilcox v. Cloward, 88 Utah 503,56 P.2d 1. But a person charged with the collection of rents has not ostensible or apparent authority to list a property for sale, because putting up for sale a client's property is not naturally or normally or apparently within the scope of the work of a rent collector. In other words, the work which the agent is really authorized to do must be such that the act which he does and in regard to which his authority is in question is usual or incidental or of the same nature or reasonably connected with that work or authority which he actually has or he cannot be apparently authorized. Otherwise, the fact that one dealing with another whom he knew was an agent would give that agent apparent authority to do everything an agent might do.

I doubt whether Jackson, who had charge of entering and removing the coal, had apparent authority to invite people up to the mine while off the premises. When they were on the premises and asked whether they could go in, he, being in charge of inside operations and they knowing that and their request being to go inside, might assume that he had the authority to permit them to enter. Such permission at such time was within his apparent authority. But his previous invitation was material at least to show the occasion for their coming and to show that they knew what Jackson's job consisted of so that they might presume his authority to admit them. Had they, however, on their own initiative arrived and made inquiries and Howard and Jackson said what they did, and it being shown that they knew what positions those men occupied or the circumstances were such that they could reasonably presume that they had authority to admit them, I think the jury would have been justified in coming to the conclusion that they were permitted to enter the mine. Certainly, the ordinance is for the protection of such.