Opinion
The plaintiff claimed that the defendants, husband and wife, joint owners of a three-family apartment house, refused, in violation of statute ( 53-35), to rent one of the apartment units to P because of his color. P, in response to a newspaper notice advertising the subject unit for rent, had come to the defendants' house but had been there told that the apartment had already been rented. Later the same day, two white "testers" had come to see the apartment, and the wife had agreed to rent it to them. During her conversation with them, she had made several deprecatory remarks about Negroes. Her husband, who had been present during part of that conversation, had remained silent. The trial court concluded that the wife did discriminate against P because of his color but that, in so doing, as in renting the apartment, she was not acting as her husband's agent. It therefore determined that, because the apartment house was jointly owned, it could not permanently enjoin either the husband or the wife. Held: 1. The plaintiff having failed to establish any agency relationship, it could not be said that the trial court's conclusion that the wife was not acting as her husband's agent in renting the apartment in question was illogically or illegally drawn from the facts. 2. Because the individual interest of the wife in the jointly held property was capable of being leased and because she refused to lease it to P on account of his color, the trial court, which had the power, in the exercise of its sound discretion, after balancing the equities, to enjoin her individually from refusing to lease that interest to P or to any other person solely because of color, erred in deciding that, as a matter of law, a permanent injunction could not issue against her individually.
Argued June 11, 1968
Decided July 9, 1968
Action for an injunction to restrain the defendants from renting or selling housing accommodations in violation of the public accommodations law, brought to the Circuit Court in the fourth circuit and tried to the court, Chernauskas, J.; judgment for the defendants and appeal by the plaintiff. Error; further proceedings.
David B. Beizer, assistant attorney general, with whom were Bernard F. McGovern, Jr., assistant attorney general, and, on the brief, Robert K. Killian, attorney general, and F. Michael Ahern, assistant attorney general, for the appellant (plaintiff).
Timothy C. Moynahan, for the appellees (defendants).
The plaintiff instituted the present action alleging that the defendants, husband and wife, in violation of General Statutes 53-35, as amended by No. 177, 1, of the 1967 Public Acts, refused to rent an apartment unit to Bert T. Pittman because he is a Negro. Pursuant to General Statutes 53-36a, as amended by No. 177, 2, of the 1967 Public Acts, the plaintiff sought to have the defendants temporarily and permanently enjoined from renting the apartment unit to anyone other than Pittman. The trial court granted the temporary injunction but subsequently rendered judgment denying the plaintiff's request for a permanent injunction. The plaintiff has appealed to this court directly. General Statutes 53-36b, as amended by Public Acts 1967, No. 177 3.
The case is submitted on a stipulation of facts which reveals the following: The defendants, Stefano and Giovannina Veneri, are the joint owners of a three-family apartment house in Waterbury. On January 8, 1968, an advertisement appeared in a Waterbury newspaper that an apartment unit in the defendants' building was available for rent. Pittman called the telephone number listed in the advertisement and made arrangements with Mrs. Veneri, the defendant wife, to see the apartment. At approximately 1 p.m. on January 9, 1968, Pittman met Mrs. Veneri at the apartment building and was told by her that the apartment unit had been rented. Pittman never saw or spoke to the defendant husband. Five hours after Pittman had been told that the apartment unit had been rented, Mrs. Veneri informed another caller that the unit was still available. At 7:30 p.m. on January 9, 1968, two white persons referred to in the stipulation as "testers," were shown the apartment unit by Mrs. Veneri. While she was showing them the apartment unit, Mrs. Veneri made several deprecatory remarks about Negroes. The defendant husband was present during parts of the conversation which his wife was having with the two testers who were viewing the apartment, but he remained silent. Mrs. Veneri agreed to rent the apartment to the two testers. Although her husband had not agreed to the rental, Mrs. Veneri accepted a rent deposit and signed his name to a receipt.
On the basis of the aforementioned facts, the trial court concluded that Mrs. Veneri had discriminated against Pittman because of his color but that in so doing she was not acting as her husband's agent. The court also concluded that Mrs. Veneri was not acting as her husband's agent for the purpose of renting the apartment unit. It determined that it could not permanently enjoin the defendant husband, and it also decided that it could not enjoin Mrs. Veneri, even though she had discriminated against Pittman. The court reasoned that, because the apartment building was jointly owned, it would be impossible to enjoin only one of the joint owners thereof.
The plaintiff claims the court erred in concluding that Mrs. Veneri was not acting as her husband's agent in renting the apartment unit. Although the plaintiff concedes that there was no proof that Mrs. Veneri had the actual authority to act as her husband's agent in renting the unit, it claims, nonetheless, that she had the apparent authority to do so.
The conclusion of the court that Mrs. Veneri was not her husband's agent in renting the apartment unit must stand unless it is legally or logically inconsistent with the facts or unless it involves the application of an erroneous rule of law material to the case. Fritz v. Mazurek, 156 Conn. 555, 559, 244 A.2d 368. As we have noted, the plaintiff maintains that the facts demonstrate that Mrs. Veneri had the apparent authority to act on behalf of her husband in renting the apartment unit. "Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses. Quint v. O'Connell, 89 Conn. 353, 357, 94 A. 288." Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 665, 228 A.2d 803. Proof of the existence of the marital relationship is insufficient to establish the agency relationship which is claimed. See Iodice v. Rusnak, 143 Conn. 244, 247, 121 A.2d 275. Also, the fact that the defendants own the apartment building jointly does not make one the agent for the other in leasing a portion of that property. Note, 49 A.L.R.2d 797, 798. The stipulation, because of its paucity of facts, fails to establish that the defendant husband, by his own acts or omissions, created or engendered the illusion that his wife had the authority to represent him in renting the apartment unit. We cannot say that the conclusion of the court that Mrs. Veneri was not acting as her husband's agent in renting the apartment unit was illogically or illegally drawn from the facts. Because the plaintiff has failed to establish any agency relationship, we have no need to consider whether, even if a general agency relationship were shown, the defendant husband would be liable for the discrimination practiced by his wife without his authority or knowledge. See Matter of State Commission for Human Rights v. Suburban Associates, Inc., 55 Misc.2d 920, 922, 286 N.Y.S.2d 733.
The plaintiff claims that the trial court erred in concluding that it would be impossible to issue a permanent injunction against Mrs. Veneri individually because the property is jointly owned. We agree. Mrs. Veneri, as a joint tenant, has an individual interest in the property capable of being leased. 20 Am.Jur.2d 202, Cotenancy and Joint Ownership, 101; 48 C.J.S. 936, Joint Tenancy, 15; note, 49 A.L.R.2d 797, 798; cf. General Statutes 47-14e. Because she has such an interest and because she was found to have refused to lease to Pittman because of his color, the trial court had the power, in the exercise of its sound discretion, after balancing the equities, to enjoin her individually from refusing to lease her interest to Pittman or to any other person solely because of color. It is true that the phrasing of an injunction order which would operate equitably as to all persons affected would not be easy. But the trial court's error lay in deciding that, as a matter of law, a permanent injunction could not issue against, Mrs. Veneri individually. The case must be remanded to afford the trial court an opportunity to exercise its discretion in deciding whether equity dictates that such an injunction should issue.