Keiper v. Anderson

Bunn, J. The defendants demurred separately to the complaint on the ground that the facts stated did not constitute a cause of action. Both demurrers were overruled, and the court certifying that the questions presented were in its opinion important and doubtful, each defendant appealed from the order overruling his demurrer. Plaintiff is the widow and administratrix of the estate of Edward E. Keiper, deceased, and brings the action under 6. S. 1913, § 8175, to recover damages for his death on the theory that it was caused by the wrongful acts or omissions of the defendants. The allegations of the complaint, which are essential to an understanding of the questions involved, may be stated as- follows: Defendant A. B. Anderson was the owner of a certain store building in Minneapolis. March 14, 1914, he leased the premises to Edward E. Keiper, for the term of one year, for use as a drug store. By the terms of the lease the lessor agreed “to keep1 said premises heated to a comfortable and proper temperature from October' to April of each year, inclusive.” The lessor maintained a heating plant in the basemens of thé building; defendant Arthur W. Anderson was in charge of the heating plant, as the agent of the lessor. Keiper went into possession — 397 — of the store. From December 27, 1915, to January 14,1916, the weather was intensely cold. Notwithstanding the terms of the lease, and their duties and obligations in the premises, the defendants “carelessly and negligently failed to properly attend to the * * * heating plant,” failed to keep the same in a good working condition and free from obstructions, failed to keep fuel in the same, and negligently 'allowed the fire in said furnace to go out, or to get so low as to 'allow the premises to become cold and dangerous as to the occupancy thereof by the tenant and his licensees. This condition is alleged to have existed during the last days of December; on the thirtieth plaintiff contracted a severe cold, became ill and was obliged to remain at his home for several days. On January 3, he returned to work at the store, relying upon promises of the defendants to do better. He remained there until January 11, when defendants carelessly and negligently allowed the heating plant to become cold for lack of fuel, causing the premises to become so cold that Keiper became ill, repaired to his bed, and died June 24, 1916, of the illness so acquired.. It is unnecessary to further state the allegations of the complaint, except to say that negligence and carelessness on the part of the defendants is frequently alleged as the cause of ELeiper’s death. Defendants claim that the action will not lie because it is on contract, not in tort, and because the statutory action to recover for death caused by wrongful act or omission can be maintained only when the cause of action is in tort. Had ICeiper survived, his cause of action would have been for breach of the contract to heat the premises, as proof of the contract would have been necessary to create any cause of action. This is settled in this state. Whittaker v. Collins, 34 Minn. 299, 25 N. W. 632, 57 Am. Rep. 55; Sargent v. Mason, 101 Minn. 319, 112 N. W. 255; City of East Grand Forks v. Steele, 121 Minn. 296, 141 N. W. 181, 45 L.R.A. (N.S.) 205, Ann. Cas. 1914C, 720; Finch v. Bursheim, 122 Minn. 152, 142 N. W. 143; Glidden v. Goodfellow, 124 Minn. 101, 144 N. W. 428, L.R.A. 1916F, 1073. It is just as true that the present action is based on the contract; there could be no recovery except for the contract. Though negligence or wrong-doing be alleged, the action is founded on contract, and there — 398 — fore classed as one, in substance, on the contract. Whittaker v. Collins, supra. In the cases cited it was necessary to call the action either one in tort or one on contract in order to decide which of two rules applied; in Whittaker v. Collins, supra, whether it was necessary to join all parties jointly liable; in Sargent v. Mason, and City of East Grand Forks v. Steele, what the proper measure of damages was; in Finch v. Bursheim, what statute of limitations applied. Of these cases perhaps Sargent v. Mason is most directly in point, as that action was based on the failure of a landlord to perform his contract to heat the leased premises. This court granted a new trial because the trial court gave the jury the rule of damages applying to torts, instead of that applying to breach of contract. All the numerous allegations of negligence and wrong-doing in the complaint before us come to but one point, the failure of the landlord to heat the premises as he had agreed to do. The gist of the action is the breach of the contract, and as said in Whittaker v. Collins, supra, “it is in substance, whatever may be the form of pleading, an action on the contract.” The cases of Barron v. Liedloff, 95 Minn. 474, 104 N. W. 289; Good v. Von Hemert, 114 Minn. 393, 131 N. W. 466, and Glidden v. Goodfellow, 124 Minn. 101, 144 N. W. 428, L.R.A. 1916F, 1073, are not in conflict with this view. There was no contract relation in those cases between the injured person and the landlord. In the Barron case the plaintiff was sublessee of the tenant, in the Good case a member of his family, and in the Glidden case an employee. The liability of the landlord was in each case based on his negligence. See note to Dustin v. Curtis, 11 L.R.A.(N.S.) 504. Blow far is this decisive of the question whether the complaint shows that the death of plaintiff’s intestate was caused by the “wrongful act or omission” of defendants? Counsel for defendants insist that no action for death by wrongful act will lie unless the wrongful act or omission is a tort, negligence, unconnected with contract. They say that an act or omission is not wrongful, does not constitute negligence, unless it is a breach of some duty imposed by law, not merely one imposed by contract. They point out that the right of action given by the statute is a new and distinct right of action, not a survival of the right of action which the injured person had before his death, to recover — 399 — damages. This is correct under our decisions. Anderson v. Fielding, 92 Minn. 42, 99 N. W. 357, 104 Am. St. 665; State v. District Court of Hennepin County, 131 Minn. 96, 154 N. W. 661. See note to Rowe v. Richards, in L.R.A. 1915E, 1095, in which the author expresses the opinion that “the better rule will be found to be that based upon the theory that the cause of action is the injury to the person of the deceased for which coexistent remedies, ox an exclusive remedy, is given.” This means that the cause of action under the death statute remains the same cause of action that the injured person had before his death, the statute merely giving a new remedy. Such a rule would be a help in determining whether, when the cause of action survives, two actions may be maintained, one that of the estate of the deceased, the other that of the widow and next of kin. It might also be useful in a case such as Rowe v. Richards, 32 S. D. 66, 143 N. W. 664, L.R.A. 1915E, 1069, where the South Dakota court held that a release by the injured person did not bar an action after his death brought under the statute for the benefit of the widow and children. See also note to Lhota v. Oppenheimer, L.R.A. 1915E, 1104. Edwards v. Interstate Chemical Corp. L.R.A. 1916D, 121. But it is unnecessary to pursue this subject. Its chief importance here is with reference to the point that Keiper’s cause of action, being based on breach of contract, survived his death. That is used as an argument in favor of the contention that the present action cannot be maintained. But whether the premise is sound or not, we find little weight in the argument. The books are full of cases where a right of action exists both under survival statutes and under statutes patterned after Lord Campbell’s Act. Neither Keiper in his lifetime nor his personal representatives brought an action to recover damages for personal injuries. Whether such an action may still be maintained we need not consider. Returning to the argument which is the real basis of counsel’s contention that the action will not lie, that is that the wrongful act or omission, or negligence, must be a breach of a duty imposed by law, not merely one imposed by contract. While, as we have held, the action is for breach of contract, the complaint abounds in charges of negligent and wrongful acts and omissions of the defend — 400 — ants. It alleges that Helper’s death was caused by these acts and omissions. Unless we can say jth'at this cannot be, because there was no breach of a legal duty, it is apparent enough that the action will lie. The language of the statute is that where “death is caused by the wrongful act or omission of any person,” the action may be maintained. Counsel cites some authorities to support this position. In Clark v. Gates, 84 Minn. 381, 87 N. W. 941, Justice Lovely used this expression: “To constitute a tort the act or omission must be entirely independent of contract right.” Citing 1 Hilliard, Torts (4th ed.) 1. That was said in connection with the question for decision in that case, whether the evidence showed fraud, or merely a breach of contract. It is doubtless true that the word “tort,” as well as the word “wrongful,” usually signifies a breach of legal duty, independent of contract rights. But this is by no means always true. Take such contract relations as carrier and passenger, physician and patient, attorney and client, landlord and tenant; when there is actual negligence or wrong on the part of the carrier, physician, attorney or landlord, is it not still negligence or a wrong notwithstanding that the duty is imposed by the contract ? There may be a breach of a contract without negligence, but there may be negligence or wrongful acts or omissions in the performance of a contract. It seems to us to make no difference whether the duty to use due care is one imposed directly by law, or exists because of the contract relation of the parties. We are unable to see why the complaint in this case does not allege negligence on the part of defendants, and that Helper’s death was caused by their wrongful acts and omissions. We do not find support for the proposition of defendants’ counsel that because the duly breached by defendants was one imposed by contract, this action will not lie. It is difficult for us to distinguish the multitude of cases where recovery has been allowed for the death of passengers, though no liability could exist except for the contract. And there have been cases where the liability of a physician or surgeon for the death of a patient caused by his negligence has been upheld. 30 Cyc. 1578. Murdock v. Walker, 43 Ill. App. 590; Gores v. Graff, 77 Wis. 174, 46 N. W. 48; Staloch v. Holm, 100 Minn. 276, 111 N. W. 264, L.R.A.(N. S.) 712, was a death case, and it apparently did not occur to the court that there was any doubt the action would lie. The same may be said of — 401 — Martin v. Courtney, 75 Minn. 255, 77 N. W. 813; 87 Minn. 197, 91 N. W. 487. These eases are significant in view of the settled rule in this state that such an action is for breach of contract. We have found no malpractice case where a recovery for death has been denied on the ground that the statutory action could not be maintained. As to the relation of landlord and tenant we have been able to find no cases where a recovery was sought for death caused by a failure to keep a promise to repair or to furnish heat. The cases previously cited, Barron v. Liedloff, Good v. Von Hemert and Glidden v. Goodfellow, indicate pretty clearly the position of this court that there may be such a thing as negligence in the performance of a contract duty. Our conclusion is that we should not say, taking allegations of the complaint as true, that the death of plaintiff’s intestate was not caused by the wrongful acts or omissions of the defendants. What the evidence will show we have no means of knowing. It may show no negligence, or contributory negligence. We simply hold that the complaint states a cause of action. Order affirmed.