215 N.W. 225 | Minn. | 1927
Lead Opinion
The action was for damages caused by the wrongful death of plaintiff's intestate while occupying rooms in a building known as 822 Nicollet avenue, in Minneapolis, owned by defendants and at the time under lease to Camfield-Gregory Company, a corporation, which operated the same as Lincoln Hotel. A fire occurred in the building, causing the death of plaintiff's intestate, Mrs. Addie Lehman, she being suffocated by smoke while attempting to descend an inside stairway. The negligence alleged against defendants was the failure to provide the rooms occupied by her with fire escapes as required by the city ordinance. The defenses presented, in addition to contributory negligence, were that it was the tenant's duty to maintain the premises in a safe condition, and that prior to the commencement of suit plaintiff had compromised his cause of action with the tenant for the sum of $3,500, which was paid plaintiff in full settlement of the same.
Although the room next to those occupied by Mrs. Lehman was provided with a proper fire escape and the window of Mrs. Lehman's room was but 17 or 18 inches from the iron railing surrounding the fire escape, it was for the jury to say whether Mrs. Lehman was negligent when she chose rather to attempt to walk down stairs than to venture to climb over the railing to this fire escape, located as she was many stories above the street. We also are clear that the fire escape provided cannot as a matter of law be held a compliance with the ordinance so as to take from the jury the question of its adequacy to free the owners of the building from the charge of negligence. The difficult questions presented by the appeal relate to the special verdict upon which the court directed judgment for defendants notwithstanding the general verdict in *173 favor of plaintiff for $3,500. The jury were directed to find on four specific issues, and found that the rooms occupied by Mrs. Lehman were not provided with a fire escape reasonably accessible for direct egress through the window, that the lack of such a fire escape was the proximate cause of her death, and that she was not guilty of contributory negligence. The fourth issue was this: "Did the acceptance of $2,000 by the administrator constitute a settlement and discharge of any claim for damages against the Camfield-Gregory Co.?" The jury answered: "Yes." The jury were charged to return a general verdict for defendants in case they found in their favor on the proposition of settlement. There was no motion for a new trial by either party. Each moved for judgment, plaintiff also moving to strike the special verdict upon the question above set out.
The general and special verdicts are inconsistent. In such case the special verdict prevails. Awde v. Cole,
Does the evidence sustain the special verdict? Respondents claim that the instrument executed by plaintiff and the tenant, though termed an agreement not to sue, contains a clause which in law makes it a release of the cause of action. It is not necessary to set out the full agreement. It is lengthy and evidently drawn with care to preserve the cause of action and confine its effect strictly to an engagement not to sue the tenant. The provision which is contended to give it the effect of a release is this: "And it is expressly understood and agreed that these presents may be pleaded as a defense in bar or in abatement to any action or other proceeding which may be brought, instituted, or taken by or in behalf" of the plaintiff against the tenant.
Early it was held that an instrument in the nature of a covenant not to sue could not be interposed as a defense if, notwithstanding the same, the injured party brought suit against the one who had obtained the covenant. This evidently on the theory that the covenantee did not have any right under the covenant until there had been a recovery against him upon the cause of action against the enforcement of which the covenant existed. But soon the courts receded from this position for the purpose of avoiding a circuity of actions, and the defense may now be set up by the covenantee when sued by the covenantor upon the cause of action involved in the agreement. Matheson v. O'Kane,
"And that these presents may be pleaded as a defence to any action or other proceeding which may be brought, instituted or *175 taken by me against the said Townsend, Trustee, or his estate, in breach of this covenant."
It was held not a release. Therefore the provision relied on by respondents adds nothing to what under modern practice the instrument would accomplish without it.
It appeared that the $2,000 paid plaintiff by the tenant was in the form of a draft payable to plaintiff's attorney reading:
"Pay to the order of George B. Leonard, attorney for estate of Mrs. Addie Lehman the sum of Two Thousand and 00/100 Dollars ($2,000.00) in full settlement and satisfaction of Claims arising out of accident which occurred January 8th, 1923, at Lincoln Hotel, Minneapolis, Minn., resulting in death of Mrs. Addie Lehman."
The draft was properly indorsed by the attorney, who testified that he did so without noticing the language quoted. Respondents not being parties to these instruments were at liberty to show what actually was agreed upon and what was done, even though the evidence so adduced by them did vary the terms of the instruments. Johnson v. Von Scholley,
What was the intention of the parties to the whole transaction? Where, as here, there arises an uncertainty because of a conflict between the writings which compose the agreement of two parties, and a third party, not bound by rule against varying written instruments, shows what was said and done, it makes a question for the jury whether there was a mere agreement not to sue or a release and satisfaction of the cause of action by the acceptance of the draft issued on the condition that it should be a full settlement so far as the tenant was concerned. If it was the latter the cause of action was gone as to the respondents also. Almquist v. Wilcox,
We cannot hold that the special verdict here challenged is without support. And since it went to a controlling issue in the case, it must prevail.
Other questions argued on both sides are not reached, for this is an appeal from judgment non obstante where there was no motion for a new trial.
The judgment is affirmed.
Addendum
In the original opinion occurred an erroneous statement as to drawing and sending the draft containing the release. The facts in that respect were these: The agent of the insurer at Minneapolis, who negotiated with plaintiff's attorney, wrote the draft. It was then delivered to plaintiff's attorney by the insurer's attorney at Minneapolis, who previously had received and forwarded to the insurer at its home office in Philadelphia, Pennsylvania, the agreement containing the covenant not to sue which was in its hands when it caused the draft to be paid in Philadelphia. However, the place where the draft was drawn or the course it took is not material in the decision of the case.
In the opinion occurs a reference to the fact that plaintiff's pleadings do not tender any issue that the release inserted in the draft was through mistake or inadvertence.3 This was no doubt due to the fact that his attorney when he accepted and indorsed the draft failed to notice the release and hence was unconscious of its existence when the reply was drawn. However, his testimony to that effect was received. The testimony of the attorney for the insurer upon that proposition, as well as other evidence in the case, was such that, in the opinion of the majority of the court, the effect of the release in the draft upon the whole transaction with the tenant was for the jury.
With the correction made as to the origin and course of the draft containing the release, the former opinion is adhered to.