L. R. 12 Ch. Div. (Eng.) 461, infra, Jessel, M. R., said in reference to the Varley Case: "I do not know that I should have decided even that case in the same way, for the deed was not in point of law an assignment, but a release," the English cases have in general followed the Varley Case. Thus, it was considered a binding authority in Langton v. Henson (1905) 92 L. T. N. S. (Eng.) 805, where a lessee, with the lessor's consent, assigned his interest in the lease to A, who, with like consent, assigned the unexpired term to B & C, who were partners, and on the later dissolution of the firm, C assigned to B, without consent of the lessor, all his interest of and in the premises, it was held that there was a breach of the covenant in the original lease, on the part of the lessee for himself and his assigns, not to "assign over, underlet, or otherwise part with these presents or the hereditaments and premises hereby demised or any part thereof, for all or any part of the term hereby granted," etc. So, the Varley Case was considered as conclusive in Loveless v. Fitzgerald (1909) 42 Can. S. C. 254, 2 B. R. C. 809 (affirming (1908) 17 Ont. L. Rep. 254), where a lease was assigned by the lessees, with the approval of the lessor, to two persons who were partners, and, on dissolution of the firm, one of the partners assigned to the other his interest in the lease without the lessor's consent, and it was held that this was a breach of the provision in the lease that the lessees will not assign or sublet, without leave, "to any other person or persons whomsoever." In Saxeney v. Panis (1921) - Mass. 131 N. E. 331, a case where it was held that there had been a waiver, the court said: "An assignment of interest in a lease by one of two lessees to the other is a breach of a covenant against assignment, although the les In Tober v. Collins (1906) 130 Ill. App. 333, where a lease to two partners contained a provision against assignment, with a clause permitting one lessee to sell out to the other, and the lessees assigned to A and B, with the consent of the lessor, which stated that there should be no further assignments or subletting, and thereafter B, without the consent of the lessor, assigned his interest in the lease to A, it was held that this was a breach of the covenants of the lease. In Glendening v. Western U. Teleg. Co. (1914) 163 App. Div. 489, 148 N. Y. Supp. 552, where a lessee took in a partner and later sold out to the partner, this was held to be a breach of a provision in the lease against assignment, although the papers executed by the lessee in selling out did not in terms assign the lease, but appointed the buyer the lessee's attorney irrevocably "to hold, sell, assign, or surrender" the lessee's interest in the lease. cases holding there was no breach. See Roosevelt v. Hopkins (1865) 33 N. Y. 81, as set out in the first part of this annotation. In Bristol v. Westcott (1879) L. R. 12 Ch. Div. (Eng.) 461, a lease to two partners contained a provision that they, "their executors, administrators, or assigns, or any or either of them, will not during the said term assign, underlet, or part with the possession of the said hereby demised premises or any part thereof to any person or persons, without the written consent" of the lessor, her heirs, or assigns. It was held that there was no breach where one of the lessees, on dissolution of the firm, agreed to assign to the other his estate and interest in the leasehold premises with the consent of the lessor, if such consent could be ob tained, and signed a further memorandum, reciting that he had given sole possession of the leasehold premises to such other; since each of the partners was from the first in full possession, so that the covenant must be construed only as inhibiting the parting with possession to any person other than one of those two to whom pos 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 const. 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. Insurance (Neb., 183 N. W. 101.) 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. Pinkerton for appellant. Messrs. J. C. Robinson and F. P. Voter, for appellee: Any event which takes place without the foresight or expectation of the person acted upon or affected thereby must be considered an accident even though the accident would not have happened but for the voluntary act upon the part of the person receiving it. Grosvenor v. Fidelity & C. Co. 102 Neb. 629, 168 N. W. 596; Railway Officials & E. Acci. Asso. v. Drummond, 56 Neb. 235, 76 N. W. 562; Rustin v. Standard Life & Acci. Ins. Co. 58 Neb. 792, 46 L.R.A. 253, 76 Am. St. Rep. 136, 79 N. W. 712. Dorsey, C., filed the following opinion: The appellee brought this action to recover upon a policy of accident insurance carried by her deceased husband in the appellant association, which provided that she, as his beneficiary, should be entitled to a certain sum in the event of his death. The defense was that the insured met his death in consequence of "voluntary exposure to unneces sary danger;" there being a provision of the policy relieving the appellant from liability in case of death so resulting. The appellee recovered a verdict and judgment. The insured was a physician in the town of Laurel, Nebraska. On June 14, 1918, he was shot and killed while driving the town marshal and three other persons in his automobile in pursuit of burglars. Between 1 and 2 o'clock in the morning the marshal was called by telephone to come down town, and when he arrived in front of a certain store a light was flashed from within and he saw a man there. The marshal fired his revolver and went around the corner of the block to the alley in the rear of the store where two residents of the village were standing. Dr. Sackett was coming toward them and remarked, "There he goes," and then they noticed a man about half a block south of them running east. Dr. Sackett and the marshal pursued the man for a short distance, and, after hunting around for him without suc (Neb., 183 N. W. 101.) cess, returned to where they had been standing. Dr. Sackett then remarked, "Listen, there is a car there," and in a moment they heard a noise and saw a bright light. Dr. Sackett thereupon said that he would get his car, which was standing about 75 feet away, and the marshal stated that he was going to get some more shells and told Dr. Sackett to go and get his car. The marshal went to a near-by residence and procured a revolver, Dr. Sackett meanwhile going for his car. He picked up the marshal and they started, with another man in the back seat. They took two other men into the car with them on the way down the street. The car which they were pursuing was about 75 rods away. Dr. Sackett drove rapidly and they were gaining on the car ahead when a shot was fired, and the marshal, who saw the flash, but did not hear the report, said: "Hold on, they are shooting back at us." When Dr. Sackett's car had come up within about 25 rods, the car ahead turned out to the right of the road and stopped. Dr. Sackett did not slacken speed, but caught up with the front car in an instant and stopped a little ahead of it on the left side of the road; the cars being only 3 or 4 feet apart. Dr. Sackett was sitting on the left side of the front seat with the marshal beside him. The occupants of the other car immediately began firing, and the marshal returned the fire. Dr. Sackett was shot and fatally wounded. There was no evidence that he spoke during the ride, or that he noticed the shot fired in their direction from the front car, or heard the marshal say that they were shooting back at them. The only remark made by Dr. Sackett of which there is any evidence was when he exclaimed that he was hurt. The main point urged for reversal is that the undisputed evidence just detailed makes out a clear case of "voluntary exposure to unnecessary danger," and that the trial court should have so held, as a matter of law, and dismissed the action. Counsel have cited, and we have found, no adjudicated case in which the act of a private citizen in going with an officer in pursuit of criminals has been considered in connection with such a clause in an insurance policy. The elements of the inquiry must be: First, whether, under the facts, Dr. Sackett voluntarily exposed himself to danger; and, second, whether it was an unnecessary danger. To be voluntary, his act in exposing himself to danger must have been intentional and of his own will. This, of course, implies that he was conscious of the peril and purposed to incur it. That he was conscious of the danger could be shown by his acts or words at the time, or, in the absence of such direct evidence, by circumstances indicating that the danger was so apparent that a man of ordinary intelligence must necessarily have known of its existence. Evidence is lacking of acts or words on his part such as would specifically show that Dr. Sackett was conscious of the danger. Were the circumstances such as to impute that knowledge to him as a man of ordinary intelligence? There can be no doubt that when he offered to drive the marshal in his car, and while the preparations were going on, Dr. Sackett knew that the purpose was to overtake the car ahead, if possible, and to capture the men seeking to escape in it, who were presumably burglars who had broken into the store. There is no evidence that anyone in his car, other than the marshal, was armed, but he knew that but he knew that the marshal deemed it necessary to be armed. As a reasonable man Dr. Sackett must have foreseen the possibility of resistance on the part of the supposed fleeing criminals, that physical force might be required to stop and detain them, and that firearms might be brought in play. The danger, in our opinion, was obvious, and knowledge thereof must be attributed to Dr. Sackett at the time the pursuit was started. Furthermore, the circumstances indicate that he exposed himself voluntarily to the danger. The suggestion that his car be used came from him. While the marshal told him to get it, this was not a command, but an acquiescence in and acceptance of his previous offer. There is nothing to support the inference that he was coerced against his will to take his car and go. a Was it "unnecessary danger" within the true meaning and interpretation of the language relied upon to defeat the policy? That question should be answered in view of what should reasonably be deemed to have been within the contemplation of the parties to the insurance contract. In placing therein. clause defeating liability in case of "voluntary exposure to unnecessary danger," the intent was to establish a reasonable limit and check upon the insured in order to protect the insurer against reckless acts and ventures in which the insured might engage, beyond the sphere of his ordinary avocation and mode of life. Whether any particular hazard to which he exposed himself was necessary is to be determined, however, with reference not only to his ordinary activities, but also to those unusual situations and emergencies which are likely to confront any person in the performance of his duty as a citizen. The law gives every citizen the right, when crime has been committed in his presence or within his knowledge, to assist in the pursuit and apprehension of those detected in its commission or under reasonable suspicion of fleeing from justice after perpetrating the unlawful act. Kennedy v. State, 107 Ind. 144, 57 Am. Rep. 99, 6 N. E. 305, 7 Am. Crim. Rep. 422; Brooks v. Com. 61 Pa. 352, 100 Am. Dec. 645. And the moral duty to lend aid under such circumstances becomes a legal duty when the citizen is called upon by a peace officer. Rev. Stat. 1913, § 8744. In the interest of the safety and well-being of society, men should not be deterred from the willing performance of that duty through fear that, in so doing, they will overstep the bounds of prudence and forfeit their rights under insurance contracts. The law regards such contracts as made with reference to the perils incident to the fulfilment by the insured of his obligation to assist in bringing criminals to justice. Such hazards do not come within the definition of "unnecessary danger." The rule is well settled that exposure to danger in the effort to save human life is not "exposure to unnecessary danger" within the meaning of the clause under consideration. DaRin v. Casualty Co. of America, 41 Mont. 175, 27 L.R.A. (N.S.) 1164, 137 Am. St. Rep. 709, 108 Pac. 649. We think there is equally strong ground to hold, by analogy, that the duty of the citizen to act for the pres- Insuranceervation of society accidentitself by helping to pursuit of pursue and take voluntary criminals into cus criminal exposure. tody is none the less urgent and controlling. Public policy forbids that contracts should be given a construction tending to discourage that sense of duty which should, in either case, be instinctive with every citizen. For that reason, the risk incurred in the performance of such duty does not, as a matter of law, constitute "exposure to unnecessary danger," but in every case arising under such conditions it will be for the jury to say whether the insured exposed himself so wantonly and recklessly as to have subjected himself to needless risk. Certain instructions given by the trial court are criticized, but, in view of the conclusion hereinbefore reached, they were not objectionable. There being no error in the record, we recommend that the judgment be affirmed. Per Curiam: For the reasons stated in the foregoing opinion, the judgment of the District Court is affirmed, and this opinion is adopted by and made the opinion of the court. |