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
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
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
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
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
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.