Fortmeyer v. National Biscuit Co.
| Decision Date | 01 December 1911 |
| Docket Number | 17,286 - (104) |
| Citation | 133 N.W. 461,116 Minn. 158 |
| Parties | MARTHA B. FORTMEYER v. NATIONAL BISCUIT COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county against National Biscuit Company, J. T. McMillan Company and City of St. Paul to recover $1,690 for personal injuries. From an order Brill, J., overruling the demurrer of defendant National Biscuit Company to the complaint, it appealed. Affirmed.
Joinder of defendants -- case overruled.
Held overruling Trowbridge v. Forepaugh, 14 Minn. 100 (133), that where several persons without any concert of action, but whose several acts of negligence concur in causing the plaintiff's injury, he may join them in an action for the recovery of damages therefor.
Price Wickersham, for appellant.
Barton & Kay, for respondent.
Appeal by the defendant National Biscuit Company from an order of the district court of the county of Ramsey overruling its demurrer to the complaint upon the ground that several causes of action are improperly united therein. The allegations of the complaint, here material, are to the effect following:
The defendant McMillan Company is the owner of the premises described in the complaint, which front upon Eighth street, in the city of St. Paul. The defendant Biscuit Company is the lessee of the premises. The defendant city more than five years ago opened, graded, and paved the street in front of the property, and constructed a stone sidewalk along the south side of the street in front of the property, and opened it for public use and travel. More than five years ago the city authorized the owner of the property to construct an areaway in and under such sidewalk and make an opening therein, and the same was thereafter and more than five years ago so constructed, and has ever since been maintained and used by the defendant the Biscuit Company as the occupant and lessee of the premises. The opening so made in the sidewalk was covered by two iron shutters working upon hinges which extend about an inch above the level of the sidewalk and the shutters, and were during all the times mentioned dangerous obstructions in the sidewalk. The Biscuit Company has so been the lessee and occupant of the premises for more than five years, during which time it has so maintained and used the opening in the sidewalk and the shutters, including the hinges. All of the defendants knew of the dangerous condition of the hinges for a long time prior to the time when plaintiff received the injuries herein complained of. Each of the defendants at all times stated carelessly and negligently caused and permitted the hinges to be in the condition stated, and they negligently failed to make the same safe. The plaintiff, while walking along the sidewalk tripped, and stumbled over the hinges, and was thereby personally injured.
The contention of the appellant is that the complaint does not allege a joint tort and that this case is ruled by the case of Trowbridge v. Forepaugh, 14 Minn. 100, (133).
If the question presented by the demurrer be considered and determined on principle, disregarding mere verbal logic, and without reference to the case relied upon, we are of the opinion that there was in this case no misjoinder of causes of action. The plaintiff has only one cause of action, which is for the recovery of...
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