Keiper v. Anderson
| Decision Date | 30 November 1917 |
| Docket Number | 20,548 |
| Citation | 165 N.W. 237,138 Minn. 392 |
| Parties | FANNY M. KEIPER v. A. R. ANDERSON AND ANOTHER |
| Court | Minnesota Supreme Court |
Action by the administratrix of the estate of Edward E. Keiper deceased, to recover $7,500 for the death of her intestate. From orders of the district court for St. Louis county, Cant J., overruling their separate demurrers to the complaint defendants appealed. Affirmed.
Death by wrongful act -- breach of covenant in lease.
The complaint alleged negligence in the performance by a landlord of his contract with a tenant to keep the leased premises heated, causing the death of the tenant. Though the action is based on the contract and is therefore an action on contract, it is held that the complaint states a cause of action to recover damages for the tenant's death as caused by the wrongful acts and omissions of defendants.
Francis H. DeGroat and Brown & Guesmer, for appellants.
A. Section 8175, G.S. 1913, gives a cause of action only in cases of personal injury caused by a tort, the cause of action for which would abate upon the death of the injured party. It specifies nothing but tort. It does not give the right to assert the cause of action of the injured person, but gives an entirely new cause of action for the benefit of the surviving spouse, under the circumstances specified therein. Anderson v. Fielding, 92 Minn. 42, 50, 51, 99 N.W. 357. See also Clay v. Chicago, M. & St. P. Ry. Co. 104 Minn. 1, 13, 115 N.W. 949.
In some states the statutes for death by wrongful act are survival statutes, whereas in other states, as in Minnesota, the statutes are not survival statutes, but create a new cause of action as shown by Anderson v. Fielding, supra. 8 Am. & Eng. Enc. (2d ed.) pp. 858, 859. This statute was intended to reach cases of tort only.
1. The history of this statute shows that it was designed to give a remedy in tort actions for injuries to the person, to compensate for the loss of all remedy by the death of the injured person. The original Lord Campbell's act began by declaring that: "No action at common law is now maintainable against a person who, by his wrongful act, neglect or default, may have caused the death of another person; and it is oftentimes right and expedient that the wrongdoer in such case should be answerable in damages for the injury so caused by him." Then it conferred a right of action on the personal representative for the benefit of the wife and others. 8 Am. & Eng. Enc. p. 858.
2. The language of this statute limits it to cases of tort.
3. The statute creates an entirely new and original cause of action, not a new remedy for an existing cause of action (Anderson v. Fielding, supra). That being so, it cannot, consistently with a familiar rule of construction, be extended to any case not falling within its express language, "wrongful act or omission." See Moe v. Smiley, 125 Pa. St. 136, 17 A. 228; 8 Am. & Eng. Enc. IV, p. 860; Id. (2) p. 861; Id. p. 887.
4. The death of the alleged wrongdoer causes the action given by the statute to abate (See 8 Am. & Eng. Enc. 874, and Moe v. Smiley, supra).
5. Actions under Lord Campbell's act statutes are governed by the rules which pertain to ordinary tort actions. (See Death by Wrongful Act, 8 Am. & Eng. Enc. 851, et seq. particularly IV, p. 860).
B. There is no duty to heat imposed by law upon the landlord in favor of the tenant, and a failure to heat creates no tort liability in favor of the tenant. It is therefore necessary to show and rely upon a contract obligation and breach thereof. In all cases in which the landlord has been held liable to the tenant for a failure to heat or a failure to repair, the cause of action has been held to be not in tort but on contract and controlled by the rules pertaining to breach of contract. Plaintiff alleges a contract obligation and relies on a breach thereof.
1. The defendants' duty to heat being created by contract and being dependent upon contract, and it being necessary for the plaintiff to plead and prove the contract in order to make out a cause of action, the action is one on contract, no matter what form the complaint takes. Whittaker v. Collins, 34 Minn. 299, 25 N.W. 632; Finch v. Bursheim, 122 Minn. 152, 153, 142 N.W. 143; City of East Grand Forks v. Steele, 121 Minn. 296, 299, 141 N.W. 181.
2. The plaintiff has in fact proceeded on contract.
3. While a landlord, who has agreed to repair or to heat, can be held liable in tort to a third person, he is under no tort liability to the tenant. Glidden v. Goodfellow, 124 Minn. 101, 144 N.W. 428; Glidden v. Second Ave. Inv. Co. 125 Minn. 471, 147 N.W. 658.
The authorities in and out of Minnesota, establish beyond question that there is no tort liability on the landlord to his tenant for the breach of the landlord's contract to repair or for the breach of his contract to heat. The holdings are affirmative to the effect that there is no such tort liability to the tenant. 18 Am. & Eng. Enc. 231 (h) aa, 234 ee, and authorities cited; Dustin v. Curtis, 74 N.H. 266, 67 A. 220, 11 L.R.A. (N.S.) 504; Sargent v. Mason, 101 Minn. 319, 112 N.W. 255.
In 18 Am. & Eng. Enc. (2d ed.) 226, 235, there is, under the heading "Agreement of Landlord to Repair," a clear summary of the rules and principles applicable in the case of such an agreement.
The decisions in the Glidden heating cases apply to a heating case the well established principles applicable to a repair case, which are: (1) That a third person has imposed in his favor by law a duty on the part of the occupant to keep the premises safely repaired and sufficiently heated; (2) that a violation of that duty, by the one upon whom that duty rests, is a tort by him upon the third party in whose favor this lawimposed duty runs; (3) that if the landlord has not agreed to furnish heat or to repair, then this duty rests upon the tenant, and he is the tort feasor; (4) that the landlord, by an agreement to do the heating, "assumes" this duty imposed by law in favor of the third party; (5) that this duty imposed by law in favor of the third party then rests upon him just as if it had been upon him in the first instance; (6) that when he fails to furnish heat he violates that duty imposed by law in favor of the third party which he has thus assumed, and there is committed by him upon the third person a tort, and not a breach of contract, because the third person has no contract. The third person stands on the duty imposed by law and the breach thereof. Glidden v. Goodfellow, 121 Minn. 101, 144 N.W. 428; Glidden v. Second Ave. Investment Co. 125 Minn. 471, 473, 147 N.W. 658.
If the third person did not have imposed in his favor by law this duty, he would have no cause of action at all. No one else who has not imposed in his favor by law this duty to heat, has any cause of action in tort, in the event of failure to heat or repair. Therefore, the tenant, who has no duty to heat or repair imposed in his favor by law has no cause of action in tort in the event of a failure to heat or repair; and he has no cause of action whatever unless he happens to have a contract with the landlord wherein the latter agrees to heat, and then his remedy is for breach of contract. He stands in a position different from the third person in this: The third party has imposed in his favor by law a duty to heat and repair always resting upon someone (the tenant or the landlord or both); the tenant has no such duty imposed in his favor by law resting upon anyone.
It will be noted, in reading the Minnesota repair decisions, that they are all actions by someone other than the tenant of the defendant, excepting the cases of Good v. Von Hemert, 114 Minn. 393, 131 N.W. 466, and Farley v. Byers, 106 Minn. 260, 118 N.W. 1023; and that, in each case, the holding of tort liability was based upon the ground that there had been violated some duty imposed by law (which would have existed even though no contract had been made) in the injured party's favor, and that the contract had no effect except to bring about an assumption of this law-imposed duty. Nash v. Minneapolis Mill Co. 24 Minn. 501; Barron v. Liedloff, 95 Minn. 474, 104 N.W. 289; Good v. Von Hemert, supra; Williams v. Dickson, 122 Minn. 49, 141 N.W. 849.
Drill & Drill, for respondent.
Where the landlord by the terms of his lease covenants with the tenant to properly heat the leased premises and negligently fails to do so, or performs the act of heating in a negligent manner and the tenant is injured by reason of such negligence, the tenant has a cause of action against his landlord for damages for his personal injuries resulting proximately from such negligence. Glidden v. Goodfellow, 124 Minn. 101, 144 N.W. 428.
The issues raised by these demurrers, therefore, are not new or open to question, because in Good v. Von Hemert, 114 Minn. 393, 131 N.W. 466, the court clearly decided the matter and determined that a tenant, like any other person rightfully on the leased premises and free from contributory negligence and assumption of risk, has an action for damages from personal injury caused by the negligence of the lessor in performing his undertaking to heat or repair under a covenant to do so.
The complaint alleges that the defendants were negligent and perpetrated acts of misfeasance and wrong in the manner in which they carried out, performed and executed their undertaking to heat the leased premises, and that the plaintiff's intestate was exposed to harm and danger which were the proximate cause of his death and which such alleged negligence and misfeasance directly produced. The complaint, therefore, tenders an issue on matters which, if true, constitute actionable negligence in law and in fact.
The action set up in the complaint is...
To continue reading
Request your trial