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L. R. 12 Ch. Div. (Eng.) 461, infra, In Tober v. Collins (1906) 130 Ill. Jessel, M. R., said in reference to the App. 333, where a lease to two partVarley Case: “I do not know that I ners contained a provision against asshould have decided even that case signment, with a clause permitting in the same way, for the deed was not one lessee to sell out to the other, and in point of law an assignment, but a the lessees assigned to A and B, with release,” the English cases have in the consent of the lessor, which stated general followed the Varley Case. that there should be no further asThus, it was considered a binding au signments or subletting, and therethority in Langton v. Henson (1905) after B, without the consent of the 92 L. T. N. S. (Eng.) 805, where a lessor, assigned his interest in the lessee, with the lessor's consent, as lease to A, it was held that this was signed his interest in the lease to A, a breach of the covenants of the lease. who, with like consent, assigned the In Glendening v. Western U. Teleg. unexpired term to B & C, who were Co. (1914) 163 App. Div. 489, 148 partners, and on the later dissolution N. Y. Supp. 552, where a lessee took of the firm, C assigned to B, without in a partner and later sold out to the consent of the lessor, all his interest partner, this was held to be a breach of and in the premises, it was held of a provision in the lease against that there was a breach of the cove assignment, although the papers exnant in the original lease, on the part ecuted by the lessee in selling out did of the lessee for himself and his as not in terms assign the lease, but apsigns, not to "assign over, underlet, or pointed the buyer the lessee's attorotherwise part with these presents or ney irrevocably “to hold, sell, assign, the hereditaments and premises here or surrender" the lessee's interest in by demised or any part thereof, for all the lease. any part of the term hereby

- cases holding there was no breach. granted," etc.

See Roosevelt v. Hopkins (1865) 33 So, the Varley Case was considered

N. Y. 81, as set out in the first part as conclusive in Loveless v. Fitzgerald

of this annotation. (1909) 42 Can. S. C. 254, 2 B. R. C.

In Bristol v. Westcott (1879) L. R. 809 (affirming (1908) 17 Ont. L. Rep.

12 Ch. Div. (Eng.) 461, a lease to two 254), where a lease was assigned by

partners contained a provision that the lessees, with the approval of the

they, “their executors, administrators, lessor, to two persons who were part

or assigns, or any or either of them, ners, and, on dissolution of the firm,

will not during the said term assign, one of the partners assigned to the

underlet, or part with the possession of other his interest in the lease without

the said hereby demised premises or the lessor's consent, and it was held

any part thereof to any person or perthat this was a breach of the provi

sons, without the written consent" of sion in the lease that the lessees will

the lessor, her heirs, or assigns. It was not assign or sublet, without leave,

held that there was no breach where “to any other person or persons whomsoever."

one of the lessees, on dissolution of In Saxeney v. Panis (1921) Mass.

the firm, agreed to assign to the other

his estate and interest in the lease131 N. E. 331, a case where it was held that there had been a waiver, the

hold premises with the consent of the court said: “An assignment of inter

lessor, if such consent could be ob. est in a lease by one of two lessees to

tained, and signed a further memoran. the other is a breach of a covenant

dum, reciting that he had given sole against assignment, although the les possession of the leasehold premises sees

partners; and, if not to such other; since each of the partwaived, is a defense to an action upon ners was from the first in full possesa covenant of renewal”-citing the sion, so that the covenant must be Varley and Loveless Cases, and Emery

construed only as inhibiting the partv. Hill (1892) 67 N. H. 330, 39 Atl. ing with possession to any person oth266, infra, under "Miscellaneous." er than one of those two to whom pos

were

session was given by the original lease.

Compare Glendening v. Western U. Teleg. Co. (1914) 163 App. Div. 489, 148 N. Y. Supp. 552, supra.

In Spangler v. Spangler (1909) 11 Cal. App. 321, 104 Pac. 995, it was held that an assignment by one colessee to the other, of all her interest in the lease, is not a breach of a provision in the lease that the lessees should not assign the lease, as the provision must be strictly construed, and it did not provide that neither should assign nor that one should not assign to the other.

In McCormick v. Stowell (1885) 138 Mass. 431, where a lease contained a covenant that the lessee “or others having his estate in the premises will not assign this lease

without the consent of the lessor," and the lessee, with the lessor's consent, assigned one undivided half of his interest in the lease to a third person, who thereafter reassigned the same to the original lessee without the lessor's consent, it was held that this constė. tuted no breach of the covenant.

The general question whether a provision not to assign applies to reassignments to the original lessee is not within the scope of this annotation.

In Boyd v. Fraternity Hall Asso. (1885) 16 Ill. App. 574, set out in the first part of this note, the court said and held: "Where a lease is jointly to two, and by an arrangement between them each occupies a several portion of the premises, such several uses cannot justly be regarded as breaches of a covenant not to underlet."

Reference may be here made to Swartz v. Bixler (1918) 261 Pa. 282, 104 Atl. 591, where there was a lease to the three partners of a firm, and one of them died, and his interest in the firm was purchased from his executrix by one of the surviving partners, but an inventory of the firm's assets, from which the interest of the deceased partner was ascertained in accordance with the terms of the articles of partnership, did not include any interest in the lease, and no as

signment was executed, and it was held that there was no breach of the following provision in the lease: “And the said parties of the second part also agree not to sublet the said demised premises or any portion thereof, or to assign this lease either by themselves, judicial sale, operation of law, or otherwise, without permission in writing to that effect first had and obtained from the said party of the first part." Another clause in the lease provided: "This agreement shall be binding upon the executors, administrators, successors, or assigns of the parties hereto." The claim that the death and the passing of the decedent's interest to his personal representative violated the covenant was met by the fact that the landlord accepted rent from the surviving lessees after the death of decedent and after the granting of letters to his executrix, at a time when he knew of the death of the decedent. Miscellaneous.

In White v. Huber Drug Co. (1916) 190 Mich. 212, 157 N. W. 60, cited in the reported case (MILLER V. POND, ante, 179), there was a transfer by the lessee corporation of all its property, including its rights under the lease, to a new corporation not identical with the lessee, and the transfer was held a breach of the provision in the lease against assignment or transfer.

In Emery v. Hill (1892) 67 N. H. 330, 39 Atl. 266, where the owners leased premises to a firm, which later formed a corporation composed of the partners and others, and the firm transferred to the corporation all the firm's assets, including real estate, it was held that there was a breach of the covenant in the lease that the lessees would "not lease or underlet said premises or any portion thereof, or assign this lease or any interest therein, without the written consent of the lessors."

The report of Doty v. Heiser (1910) 48 Colo. 490, 111 Pac. 67, does not give the facts sufficiently to make it of value except upon questions of practice.

B. B. B.

MYRTLE B. SACKETT

V. MASONIC PROTECTIVE ASSOCIATION of Worcester, Massachusetts,

Appt.

Nebraska Supreme Court - May 16, 1921.

(- Neb. — 183 N. W. 101.) Insurance — accident pursuit of criminal — voluntary exposure.

The fact that the insured was killed while voluntarily aiding a peace officer in the fresh pursuit of persons reasonably suspected of having committed a crime, and seeking to escape, will not, as a matter of law, defeat recovery in an action upon a policy of accident insurance under a provision thereof that the insurer shall not be liable in case of “voluntary exposure to unnecessary danger;" but the question whether, in performing his duty as a citizen, the insured incurred needless risk, is for the jury.

[See note on this question beginning on page 191.)

APPEAL by defendant from a judgment of the District Court for Cedar County (Graves, J.) in favor of plaintiff in an action brought to recover the amount alleged to be due on an accident insurance policy. Affirmed.

The facts are stated in the Commissioner's opinion.

Messrs. R. J. Millard and Alfred S. sary danger;" there being a proviPinkerton for appellant.

sion of the policy relieving the apMessrs. J. C. Robinson and F. P. pellant from liability in case of Voter, for appellee:

death so resulting. The appellee reAny event which takes place with

covered a verdict and judgment. out the foresight or expectation of the

The insured was a physician in person acted upon or affected thereby must be considered an accident even

the town of Laurel, Nebraska. On though the accident would not have June 14, 1918, he was shot and happened but for the voluntary act killed while driving the town marupon the part of the person receiving shal and three other persons in his it.

automobile in pursuit of burglars. Grosvenor v. Fidelity & C. Co. 102 Between 1 and 2 o'clock in the mornNeb. 629, 168 N. W. 596; Railway Of

ing the marshal was called by teleficials & E. Acci. Asso. v. Drummond,

phone to come down town, and 56 Neb. 235, 76 N. W. 562; Rustin v. Standard Life & Acci. Ins. Co. 58 Neb.

when he arrived in front of a cer792, 46 L.R.A. 253, 76 Am. St. Rep. 136,

tain store a light was flashed from 79 N. W. 712.

within and he saw a man there.

The marshal fired his revolver and Dorsey, C., filed the following

went around the corner of the block opinion:

to the alley in the rear of the store The appellee brought this action

where two residents of the village to recover upon a policy of accident insurance carried by her deceased

were standing. Dr. Sackett was husband in the appellant associa

coming toward them and remarked, tion, which provided that she, as his

“There he goes," and then they nobeneficiary, should be entitled to a ticed a man about half a block south certain sum in the event of his of them running east. Dr. Sackett death. The defense was that the in and the marshal pursued the man sured met his death in consequence for a short distance, and, after huntof "voluntary exposure to unneces-ing around for him without suc

(- Neb. 183 N. W. 101.) cess, returned to where they had Counsel have cited, and we have been standing. Dr. Sackett then found, no adjudicated case in which remarked, "Listen, there is a the act of a private citizen in going there," and in a moment they heard with an officer in pursuit of crima noise and saw a bright light. Dr. inals has been considered in connecSackett thereupon said that he tion with such a clause in an insurwould get his car, which was stand ance policy. The elements of the ing about 75 feet away, and the inquiry must be: First, whether, marshal stated that he was going to under the facts, Dr. Sackett volunget some more shells and told Dr. tarily exposed himself to danger; Sackett to go and get his car. The and, second, whether it was an unmarshal went to a near-by residence necessary danger. To be voluntary, and procured a revolver, Dr. Sackett his act in exposing himself to danmeanwhile going for his car.

ger must have been intentional and He picked up the marshal and of his own will. This, of course, they started, with another man in implies that he was conscious of the the back seat. They took two other peril and purposed to incur it. That men into the car with them on the he was conscious of the danger way down the street. The car which could be shown by his acts or words they were pursuing was about 75 at the time, or, in the absence of rods away. Dr. Sackett drove rap such direct evidence, by circumidly and they were gaining on the stances indicating that the danger car ahead when a shot was fired, and was so apparent that a man of orthe marshal, who saw the flash, but dinary intelligence must necessarily did not hear the report, said: have known of its existence. Evi"Hold on, they are shooting back at dence is lacking of acts or words on us." When Dr. Sackett's car had his part such as would specifically come up within about 25 rods, the show that Dr. Sackett was conscious car ahead turned out to the right of of the danger. Were the circumthe road and stopped. Dr. Sackett stances such as to impute that did not slacken speed, but caught knowledge to him as a man of orup with the front car in an instant dinary intelligence? and stopped a little ahead of it on There can be no doubt that when the left side of the road; the cars he offered to drive the marshal in being only 3 or 4 feet apart. Dr. his car, and while the preparations Sackett was sitting on the left side were going on, Dr. Sackett knew of the front seat with the marshal that the purpose was to overtake the beside him. The occupants of the car ahead, if possible, and to capture other car immediately began firing, the men seeking to escape in it, who and the marshal returned the fire. were presumably burglars who had Dr. Sackett was shot and fatally broken into the store. There is no wounded. There was no evidence evidence that anyone in his car, that he spoke during the ride, or

other than the marshal, was armed, that he noticed the shot fired in their but he knew that the marshal direction from the front car, or deemed it necessary to be armed. heard the marshal say that they As a reasonable man Dr. Sackett were shooting back at them. The must have foreseen the possibility only remark made by Dr. Sackett of of resistance on the part of the supwhich there is any evidence was posed fleeing criminals, that physwhen he exclaimed that he was hurt. ical force might be required to stop

The main point urged for reversal and detain them, and that firearms is that the undisputed evidence just might be brought in play. The dandetailed makes out a clear case of ger, in our opinion, was obvious, "voluntary exposure to unnecessary and knowledge thereof must be atdanger," and that the trial court tributed to Dr. Sackett at the time should have so held, as a matter the pursuit was started. Furtherof law, and dismissed the action. more, the circumstances indicate

a

Insurance

exposure.

that he exposed himself voluntarily performance of that duty through to the danger. The suggestion that fear that, in so doing, they will overhis car be used came from him. step the bounds of prudence and While the marshal told him to get forfeit their rights under insurance it, this was not a command, but an contracts. The law regards such acquiescence in and acceptance of contracts as made with reference to his previous offer. There is nothing the perils incident to the fulfilment to support the inference that he was by the insured of his obligation to ascoerced against his will to take his sist in bringing criminals to justice. car and go.

Such hazards do not come withWas it "unnecessary danger" in the definition of "unnecessary within the true meaning and inter- danger.” The rule is well settled pretation of the language relied up that exposure to danger in the effort on to defeat the policy? That ques to save human life is not "exposure tion should be answered in view of to unnecessary danger" within the what should reasonably be deemed meaning of the clause under considto have been within the contempla- eration. DaRin v. Casualty Co. of tion of the parties to the insurance America, 41 Mont. 175, 27 L.R.A. contract. In placing therein (N.S.) 1164, 137 Am. St. Rep. 709, clause defeating liability in case of 108 Pac. 649. We think there is “voluntary exposure to unnecessary equally strong ground to hold, by danger,” the intent was to establish analogy, that the duty of the citizen a reasonable limit and check upon to act for the presthe insured in order to protect the ervation of society accidentinsurer against reckless acts and itself by helping to pursuit of ventures in which the insured might pursue and take voluntary engage, beyond the sphere of his criminals into cusordinary avocation and mode of life. tody is none the less urgent and Whether any particular hazard to controlling.

controlling. Public policy forbids which he exposed himself was nec that contracts should be given a conessary is to be determined, how struction tending to discourage that ever, with reference not only to his sense of duty which should, in either ordinary activities, but also to those case, be instinctive with every citunusual situations and emergencies izen. For that reason, the risk inwhich are likely to confront any per curred in the performance of such son in the performance of his duty duty does not, as a matter of law, as a citizen. The law gives every constitute "exposure to unnecessary citizen the right, when crime has danger," but in every case arising been committed in his presence or under such conditions it will be for within his knowledge, to assist in the jury to say whether the insured the pursuit and apprehension of exposed himself so wantonly and those detected in its commission or recklessly as to have subjected himunder reasonable suspicion of flee self to needless risk. ing from justice after perpetrating Certain instructions given by the the unlawful act. Kennedy v. State, trial court are criticized, but, in 107 Ind. 144, 57 Am. Rep. 99, 6 N. view of the conclusion hereinbefore E. 305, 7 Am. Crim. Rep. 422; reached, they were not objectionBrooks v. Com. 61 Pa. 352, 100 Am. able. There being no error in the Dec. 645. And the moral duty to record, we recommend that the lend aid under such circumstances judgment be affirmed. becomes a legal duty when the cit

Per Curiam: izen is called upon by a peace officer. For the reasons stated in the foreRev. Stat. 1913, $ 8744.

going opinion, the judgment of the In the interest of the safety and District Court is affirmed, and this well-being of society, men should opinion is adopted by and made the not be deterred from the willing opinion of the court.

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