the premises and took possession. He then | verdict, for the record does not show that a had considerable property in the building, motion for a directed verdict was made at the which he has suffered to remain ever since. close of the testimony. Sayer v. Harris ProdThere is evidence of an attachment several uce Co., 84 Minn. 216, 87 N. W. 617. months after plaintiff took possession, and Order reversed, and a new trial granted. that a padlock was placed on the door of the building, but no testimony to the effect that the padlock was placed there at the instance of the lessors. No doubt, proof of constructive eviction would have been sufficiently established, had plaintiff acted upon the notice of July 1st, and vacated, removing his property. But he did not. By retaining the key and letting his property remain in the building plaintiff kept possession. In Boreel v. Lawton, 90 N. Y. 293, 43 Am. Rep. 170, the court says: "But we know of no case sustaining the doctrine that there can be a constructive eviction, without a surrender of the possession." "The propositions that there can be retention of demised premises and an eviction are logically and legally contradictory.' Mortimer v. Brunner, 6 Bosw. (N. Y.) 653. In New State Brewing Ass'n v. Miller, 141 Pac. 1175, it was held that the constructive eviction did not occur until the date upon which the tenant surrendered possession. McAdam, Landlord and Tenant, p. 1385, states: "But where the eviction is constructive merely, it is no eviction in law unless followed by a complete abandonment of possession by the tenant." To the same effect are Cohen v. Conrad, 110 Minn. 207, 124 N. W. 992; Crossthwaite v. Caldwell, 106 Ala. 295, 18 South. 47; Lei ferman v. Osten, 167 Ill. 93, 47 N. E. 203, 39 L. R. A. 156; Dennick v. Ekdahl, 102 Ill. App. 199; De Witt v. Pierson, 112 Mass. 8, 17 Am. Rep. 58; International Trust Co. v. Schumann, 158 Mass. 287, 33 N. E. 509. Plaintiff, notwithstanding the notice, the refusal to consent in writing to the assignment of the lease, and the refusal to accept rent, gave exhibitions for three or four days, and no actual interference was then, or ever, made by defendants. There was neither eviction nor any such interference with plaintiff's possession or use of the premises that an action for damages can be maintained against defendants. Mere refusal to consent in writing to the assignment of the lease was not an interference with the beneficial use or enjoyment thereof. Plaintiff entered into possession as defendants' tenant, and became such by defendants' waiver, as the jury found, of the provision in the lease that no assignment could be made without their written consent. It cannot be claimed that writ PICKERING v. GREAT NORTHERN RY. Under the common law of Wisconsin the term wanton or willful or gross negligence, such as justifies a recovery though the plaintiff is himself negligent, imports a higher degree of delinquency than does such term under the law of Minnesota; and a charge giving the Minnesota law is erroneous when the Wisconsin law is the governing law. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 371-377; Dec. Dig. 139. First and Second Series, Wanton Negligence.] For other definitions, see Words and Phrases, 2. RAILROADS 398-PERSON ON TRACKSUFFICIENCY OF WANTON NEGLIGENCE Action by H. J. Pickering, as administrator, against the Great Northern Railway Company and others. Verdict for plaintiff and from denial of alternative motion for judgment or new trial, the defendant Northern Pacific Railway Company appeals. Reversed. C. W. Bunn and D. F. Lyons, both of St. ten consent would have given plaintiff a bet-Paul, for appellant. Hurley & Hurley, of St. ter standing than he had through the waiver Paul, and W. P. Crawford, of Superior, Wis., found by the jury. There is no suggestion for respondent. in the testimony that defendants agreed to waive the covenant in the lease as to any asDIBELL, C. Action by the plaintiff to resignment that plaintiff might desire to make. cover damages for the death of his intestate This disposes of the appeal, and other er- alleged to have been caused by the negligence rors assigned need not be considered. Judg- of the defendant. There was a verdict for ment cannot be ordered notwithstanding the the plaintiff. The defendant appeals from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the order denying its alternative motion for! judgment or for a new trial. [1] 1. It is a contention of the plaintiff that the defendant was wantonly negligent and that there can be a recovery though the plaintiff's intestate was himself negligent. Upon the question of wanton negligence the court gave two instructions. The first one was as follows: "You are instructed that wanton negligence, whereby liability is incurred irrespective of plaintiff's negligence, is a failure after discovering his peril to exercise ordinary care to prevent the impending injury. In order for the jury to find wanton negligence in this case, it need not find intentional or malicious injury, or the reckless or wanton disregard of John Madden while in a position of peril." It is conceded that the language of this instruction is a correct statement of the law of Minnesota. Anderson v. Minneapolis, etc., Ry. Co., 103 Minn. 224, 114 N. W. 1123, and cases cited; Gill v. Mpls., etc., Co., 129 Minn. 142, 151 N. W. 896. It is substantially that of Chief Justice Start in the Anderson Case. The other instruction was as follows: "Wanton negligence is something more than mere inadvertence. It is an absence of any care on the part of a person having a duty to perform to avoid inflicting injury to the personal rights of another, by recklessly or wantonly acting or failing to act to avoid doing such injury, evincing such an utter disregard of consequences as to suggest some degree of intention to cause such injury. It evinces such disrespect of consequences as to show little short of actual intent." This is a correct statement of the Wisconsin law. It is substantially the language of Justice Marshall in Astin v. Chicago, etc., Co., 143 Wis. 477, 128 N. W. 265, 31 L. R. A. (N. S.) 158. This case, with others, was in evidence in proof of the Wisconsin law. [2] 2. The next question is whether, applying the Wisconsin law, the evidence justifies a finding that the defendant was wantonly negligent. He The important facts are few. The defendant had two parallel tracks between Duluth and Superior. The plaintiff's intestate was walking on the westerly of the two tracks in Superior going northerly towards Duluth and towards his place of work for the Great Northern. An engine with its caboose was approaching on the same track from Duluth. An engine with its caboose was coming from the south on the easterly track. The Duluth train gave a warning signal and the plaintiff's intestate turned to the right between the two tracks which were about eight feet apart. The trainmen on both trains saw him. He was struck and killed by the engine of the northbound train at or near the point where the two engines met. did not get on the easterly track and apparThe two enently did not intend doing so. gineers were on the sides of their engines away from the intestate. Under the law of Minnesota it may have been a question for the jury whether the trainmen were not willfully negligent in that they saw the plaintiff in a place of danger and failed to exercise ordinary care to avoid injuring him; that is, it may have been a question for the jury whether the situation was not such as to justify the jury in saying that the trainmen, having seen the defendant as they did, should have anticipated that their engines would meet at about where the plaintiff was, thereby putting him in a place of peculiar danger, and whether ordinary care did not require them to exercise further precautions for his safety. Under the Wisconsin law, as defined and applied in the cases in evidence, wanton negligence was not shown. An examination of the Wisconsin cases in evidence, including the one just cited, and a comparison of them with the Minnesota cases, indicate to us a radical difference in [3] 3. The defendant contends that under the legal conception in the two states of the the Wisconsin law the plaintiff's intestate degree of negligence, whether termed wanton was guilty of contributory negligence as a or willful or gross, which permits a recovery matter of law. It relies upon the rule of law though the plaintiff is negligent. Expres- stated in White v. Mpls., etc., Ry. Co., 147 sions vary from case to case in Minnesota Wis. 141, 133 N. W. 148, which, with other as they do in Wisconsin; but the two typi- cases, is in evidence in proof of the Wisconcal instructions quoted do not define the sin law. This was a railway crossing case. same legal conception. The term wanton It is likely that the law of Wisconsin and or willful negligence, such as permits a re- that of Minnesota, relative to contributory covery by a plaintiff, himself negligent, im- negligence on the part of one about to cross ports in Wisconsin a higher degree of de-a railway track, differ. Here, however, the linquency than in Minnesota. In Minnesota situation was different. The intestate was it is sufficient to charge a defendant with liability if it be found from the evidence that after seeing the plaintiff in a place of danger and peril, and having ability to avoid injuring him, he failed to exercise ordinary care to avoid doing so. This is not a true statement of the Wisconsin law. The second instruction would be erroneous if applied to a case in which the Minnesota law was the governing law; and it seems clear that the giving of the first one was erroneous in a case where the Wisconsin law was the governing law. not attempting to cross onto the easterly track. He was walking in the space between the two tracks which ordinarily would not be a place of great danger. It is quite likely that if the engines had not met at the particular point where plaintiff was no injury would have occurred. It was a question for the jury whether the deceased was negligent. [4] 4. The defendant did not plead the common law of Wisconsin relative to wanton negligence. The case was tried upon the theory that the law of Wisconsin relative to wanton negligence was the governing law. close of the testimony. Sayer v. Harris Prod- the premises and took possession. He then | verdict, for the record does not show that a had considerable property in the building, motion for a directed verdict was made at the which he has suffered to remain ever since. There is evidence of an attachment several months after plaintiff took possession, and that a padlock was placed on the door of the building, but no testimony to the effect that the padlock was placed there at the instance of the lessors. No doubt, proof of constructive eviction would have been sufficiently established, had plaintiff acted upon the notice of July 1st, and vacated, removing his property. But he did not. By retaining the key and letting his property remain in the build-1. ing plaintiff kept possession. In Boreel v. Lawton, 90 N. Y. 293, 43 Am. Rep. 170, the court says: "But we know of no case sustaining the doctrine that there can be a constructive eviction, without a surrender of the possession." "The propositions that there can be retention of demised premises and an eviction are logically and legally contradictory." Mortimer v. Brunner, 6 Bosw. (N. Y.) 653. In New State Brewing Ass'n v. Miller, 141 Pac. 1175, it was held that the constructive eviction did not occur until the date upon which the tenant surrendered possession. McAdam, Landlord and Tenant, p. 1385, states: "But where the eviction is constructive merely, it is no eviction in law unless followed by a complete abandonment of possession by the tenant." To the same effect are Cohen v. Conrad, 110 Minn. 207, 124 N. W. 992; Crossthwaite v. Caldwell, 106 Ala. 295, 18 South. 47; Leiferman v. Osten, 167 Ill. 93, 47 N. E. 203, 39 L. R. A. 156; Dennick v. Ekdahl, 102 Ill. App. 199; De Witt v. Pierson, 112 Mass. 8, 17 Am. Rep. 58; International Trust Co. v. Schumann, 158 Mass. 287, 33 N. E. 509. Plaintiff, notwithstanding the notice, the refusal to consent in writing to the assignment of the lease, and the refusal to accept rent, gave exhibitions for three or four days, and no actual interference was then, or ever, made by defendants. There was neither eviction nor any such interference with plaintiff's possession or use of the premises that an action for damages can be maintained against defendants. Mere refusal to consent in writing to the assignment of the lease was not an interference with the beneficial use or enjoyment thereof. Plaintiff entered into possession as defendants' tenant, and became such by defendants' waiver, as the jury found, of the provision in the lease that no assignment could be made without their written consent. It cannot be claimed that writ PICKERING v. GREAT NORTHERN RY. Under the common law of Wisconsin the term wanton or willful or gross negligence, such as justifies a recovery though the plaintiff is himself negligent, imports a higher degree of delinquency than does such term under the law of Minnesota; and a charge giving the Minnesota law is erroneous when the Wisconsin law is the governing law. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 371-377; Dec. Dig. 139. First and Second Series, Wanton Negligence.] For other definitions, see Words and Phrases, 2. RAILROADS 398-PERSON ON TRACKSUFFICIENCY OF WANTON NEGLIGENCE Under the evidence, applying the Wiscon- Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. 3. RAILROADS 400 — PERSON ON TRACK CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. of the plaintiff's intestate under the Wisconsin The question of the contributory negligence law was for the jury. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. 400.] 4. APPEAL AND ERROR 171 REVIEW PLEADING. ton negligence was not pleaded; but the parties having tried the case upon the theory that the question of liability was determinable by the Wisconsin law it is so considered on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 1053-1063, 1066, 1067, 1161-1165; Dec. Dig. 171.] The common law of Wisconsin as to wan Appeal from District Court, Pine County; P. H. Stolberg, Judge. Action by H. J. Pickering, as administrator, against the Great Northern Railway Company and others. Verdict for plaintiff and from denial of alternative motion for judgment or new trial, the defendant Northern Pacific Railway Company appeals. Reversed. C. W. Bunn and D. F. Lyons, both of St. Paul, for appellant. Hurley & Hurley, of St. Paul, and W. P. Crawford, of Superior, Wis., for respondent. ten consent would have given plaintiff a better standing than he had through the waiver found by the jury. There is no suggestion in the testimony that defendants agreed to waive the covenant in the lease as to any asDIBELL, C. Action by the plaintiff to resignment that plaintiff might desire to make. cover damages for the death of his intestate This disposes of the appeal, and other er- alleged to have been caused by the negligence rors assigned need not be considered. Judg- of the defendant. There was a verdict for ment cannot be ordered notwithstanding the the plaintiff. The defendant appeals from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] 2. The next question is whether, applying the Wisconsin law, the evidence justifies negligent. the order denying its alternative motion for judgment or for a new trial. [1] 1. It is a contention of the plaintiff a finding that the defendant was wantonly that the defendant was wantonly negligent and that there can be a recovery though the plaintiff's intestate was himself negligent. Upon the question of wanton negligence the court gave two instructions. The first one was as follows: The important facts are few. The defendant had two parallel tracks between Duluth and Superior. The plaintiff's intestate was walking on the westerly of the two tracks in Superior going northerly towards Duluth and towards his place of work for the Great Northern. An engine with its caboose was "You are instructed that wanton negligence, whereby liability is incurred irrespective of plaintiff's negligence, is a failure after discovering his peril to exercise ordinary care to prevent approaching on the same track from Duluth. the impending injury. In order for the jury to An engine with its caboose was coming from find wanton negligence in this case, it need not the south on the easterly track. The Dufind intentional or malicious injury, or the reck-luth train gave a warning signal and the less or wanton disregard of John Madden while in a position of peril." It is conceded that the language of this in struction is a correct statement of the law plaintiff's intestate turned to the right be- of Minnesota. Anderson v. Minneapolis, etc., Ry. Co., 103 Minn. 224, 114 N. W. 1123, and cases cited; Gill v. Mpls., etc., Co., 129 Minn. 142, 151 N. W. 896. It is substantially that of Chief Justice Start in the Anderson Case. The other instruction was as follows: "Wanton negligence is something more than mere inadvertence. It is an absence of any care on the part of a person having a duty to perform to avoid inflicting injury to the personal rights of another, by recklessly or wantonly acting or failing to act to avoid doing such injury, evincing such an utter disregard of consequences as to suggest some degree of intention to cause such injury. It evinces such disrespect of consequences as to show little short of actual jury whether the situation was not such as intent." to justify the jury in saying that the trainThis is a correct statement of the Wiscon-men, having seen the defendant as they did, sin law. It is substantially the language of Justice Marshall in Astin v. Chicago, etc., Co., 143 Wis. 477, 128 N. W. 265, 31 L. R. A. (N. S.) 158. This case, with others, was in evidence in proof of the Wisconsin law. should have anticipated that their engines would meet at about where the plaintiff was, thereby putting him in a place of peculiar danger, and whether ordinary care did not require them to exercise further precautions for his safety. Under the Wisconsin law, as defined and applied in the cases in evidence, wanton negligence was not shown. [3] 3. The defendant contends that under the Wisconsin law the plaintiff's intestate was guilty of contributory negligence as a matter of law. It relies upon the rule of law stated in White v. Mpls., etc., Ry. Co., 147 Wis. 141, 133 N. W. 148, which, with other cases, is in evidence in proof of the Wisconsin law. This was a railway crossing case. It is likely that the law of Wisconsin and that of Minnesota, relative to contributory negligence on the part of one about to cross a railway track, differ. Here, however, the situation was different. The intestate was not attempting to cross onto the easterly track. He was walking in the space between the two tracks which ordinarily would not be a place of great danger. It is quite likely that if the engines had not met at the particular point where plaintiff was no injury would have occurred. It was a question for the jury whether the deceased was negligent. An examination of the Wisconsin cases in evidence, including the one just cited, and a comparison of them with the Minnesota cases, indicate to us a radical difference in the legal conception in the two states of the degree of negligence, whether termed wanton or willful or gross, which permits a recovery though the plaintiff is negligent. Expressions vary from case to case in Minnesota as they do in Wisconsin; but the two typical instructions quoted do not define the same legal conception. The term wanton or willful negligence, such as permits a recovery by a plaintiff, himself negligent, imports in Wisconsin a higher degree of delinquency than in Minnesota. In Minnesota it is sufficient to charge a defendant with liability if it be found from the evidence that after seeing the plaintiff in a place of danger and peril, and having ability to avoid injuring him, he failed to exercise ordinary care to avoid doing so. This is not a true statement of the Wisconsin law. The second instruction would be erroneous if applied to a case in which the Minnesota law was the [4] 4. The defendant did not plead the comgoverning law; and it seems clear that the mon law of Wisconsin relative to wanton giving of the first one was erroneous in a negligence. The case was tried upon the thecase where the Wisconsin law was the gov-ory that the law of Wisconsin relative to erning law. wanton negligence was the governing law. * It cannot now be successfully objected that tled and adjusted, it is hereby stipulated and dismissthere was not a sufficient pleading. 1 Dun- agreed that the said action be ed; * * that all property taken and held nell, Minn. Dig. §§ 405, 406. by the sheriff * * under * writ of There was some confusion at the trial ow-attachment in said action, shall be by said shering to the joinder of the Great Northern and iff returned to said defendants." the claim of its liability under the federal Employers' Liability Act-a claim clearly unfounded and properly disposed of by the trial court's direction of a verdict. On a new trial, with similar evidence, the question will be a simple one of the negligence of the defendant and the contributory negligence of the plaintiff as the factors determinative of lia bility. Order reversed. DOWNS et al. v. AMERICAN SURETY CO. ATTACHMENT 331 JUDGMENT 518 No liability arises under an attachment bond given pursuant to Gen. St. 1913, § 7847, from a judgment of dismissal, where the record shows that it was entered pursuant to a stipulation of the parties settling and adjusting all matters in dispute between them. First, such a stipulation releases the principal on the attachment bond, and by so doing releases the surety. Second, the statute is part of the contract between the parties. The judgment contemplated by the statute and the bond is a judgment determining that plaintiff had no cause of action at the time the attachment was made. The rule against collateral attack of judgments is not here involved. [Ed. Note. For other cases, see Attachment, Cent. Dig. §§ 1180-1185; Dec. Dig. 331; Judgment, Cent. Dig. §§ 961, 962; Dec. Dig. 518.} Appeal from District Court, Crow Wing County; B. F. Wright, Judge. Action by J. W. Downs and others against the American Surety Company of New York and Fred J. Reid. Verdict for plaintiffs, and defendant American Surety Company of New York appeals. Reversed, and judgment ordered for defendant. Kerr, Fowler, Schmitt & Furber, of Minneapolis, for appellant. Alderman & Clark and M. E. Ryan, all of Brainerd, for respondents. HALLAM, J. The Enterprise Manufacturing Company sued plaintiffs in this action and attached certain of their property. To procure the attachment the Enterprise Company gave a bond with itself as principal, and defendant American Surety Company as surety, conditioned to pay all damages sustained "in case the defendants recover judgment or in case the writ shall be set aside or vacated." No move was made to set aside or vacate the attachment. some lapse of time the parties to the attachment suit settled their differences and stipulated as follows: After "All matters in dispute between the respective parties * * having this day been set This stipulation was filed with the clerk of the district court. Ten months later judgment of dismissal was entered in favor of Downs & Sons, the defendants in that action. The judgment recited that it was entered pursuant to the stipulation of the parties. The property was restored to Downs & Sons. They now contend that the property was damaged while under attachment, and they bring this action against this defendant as surety on the bond. Liability is claimed, not on the ground that the writ of attachment was "set aside or vacated," but on the ground that defendant in the attachment suit "recovered judgment." The court instructed the jury that defendant Surety Company was liable for all damages Downs & Sons sustained by reason of the attachment. The jury returned a verdict for plaintiff accordingly. Defendant appeals. We are of the opinion that defendant was entitled to judgment as a matter of law. First. The stipulation above mentioned settling all matters in dispute between the parties operated to release the Enterprise Company from all liability on the attachment bond. That company was the principal on the bond, and defendant was surety. It is well settled that the release of a principal operates as a discharge of the surety. Ames v. Wilkinson, 47 Minn. 148, 49 N. W. 696; Finnegan v. Janeway, 85 Minn. 384, 89 N. W. 4; Bull v. Rich, 92 Minn. 475, 100 N. W. 212, 101 N. W. 489; 1 Brandt, Suretyship (3d Ed.) § 164. Second. This is a statutory bond, and the statute forms part of the contract of the parties. The requirement of the statute is that the bond shall be so conditioned as to be operative "if judgment be given for the defendant." G. S. 1913, § 7847. Perhaps N. W. 565; Fairmont Cement Stone Mfg. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |