any worse position, because of anything said or done by their stepfather with reference to the homestead. Ekblaw never abandoned the land as a homestead or surrendered possession while he lived. The only authority which defendants cite, Lucy v. Lucy, 107 Minn. 432, 120 N. W. 754, 131 Am. St. 502, is not in point. There the grantor subsequent to making the deed abandoned the premises as a homestead and gave complete possession to the grantee. The latter was to make some payments during the grantor's life. Afterwards, when a misunderstanding arose as to these, the grantor sued the grantee and obtained judgment reforming the deed so as to embody provisions for the payment of the annuities to the former and other conditions. These the latter thereafter paid and performed. It was held that a subsequent grantee, taking with full knowledge of these facts, was estopped from asserting title as against the first grantee in possession under the deed and judgment mentioned, although the grantor's insane wife was not party to either. There are no similar facts in the case at bar upon which to predicate an estoppel. Judgment affirmed. KATE TRUAN v. LONDON GUARANTEE & ACCIDENT COMPANY.1 January 16, 1914. Nos. 18,409(176). Garnishment. A guarantee insurance company held not liable as garnishee upon a judg ment against the assured on an indemnified risk, where, at the time of service of the garnishee summons and when disclosure was made, it held a valid claim for policy premiums against assured in excess of such judgment, though it defended the main action, the rule of Patterson v. Adan, 119 Minn. 308, being inapplicable. 1 Reported in 145 N. W. 26. The London Guarantee & Accident Co., Ltd., was summoned as garnishee in an action in the district court for St. Louis county, wherein defendant Kate Truan recovered judgment against the Range Power Co. The disclosure was taken before Hughes, J., and plaintiff's motion for judgment against the garnishee for the amount of her judgment was granted. From the judgment entered pursuant to the order for judgment, the garnishee appealed. Reversed. Alexander Marshall, for appellant. Austin & Austin, for respondent. PHILIP E. BROWN, J. Appeal by the garnishee from a judgment adjudging a recovery against it in plaintiff's favor. The facts are undisputed. Those material are: On June 5, 1910, the garnishee issued a policy, agreeing to indemnify defendant against loss from liability imposed by law upon it for damages on account of bodily injuries accidentally suffered by any person or persons not employed by assured during the year following, to the extent of $5,000. The instrument contained the usual undertaking to defend, in assured's name and behalf, suits brought against it for recoveries contemplated by the policy, payment of costs, and provided no action should lie against the assurer for any loss thereunder, unless brought by assured for loss actually sustained after payment thereof by it in money, all substantially as set out in the policy considered in Patterson v. Adan, 119 Minn. 308, 138 N. W. 281. Assured stipulated therein to pay premiums calculated at the rate of 4 per cent on the entire compensation earned by its employees during the period of the policy, estimated at $142.50, and, further, if at the end of such period the entire compensation exceeded this estimate, then assured would immediately pay the additional premium earned. Plaintiff obtained judgment against defendant for $452.41, in an action, commenced September 8, 1911, to recover $20,000, grounded on an accident indemnified by the policy and occurring during its life, the defense whereof was conducted by the garnishee in the name and behalf of assured, but at its own cost and expense, though the latter became insolvent and its effects passed into the hands of a receiver July 26, 1911, upon whose appointment a renewal issued June 5, 1911, was cancelled. Plaintiff, after return of execution unsatisfied, garnished appellant, and the facts stated were disclosed. Appellant, however, denied liability, and it appeared that, at the time of service of the garnishee summons and disclosure, defendant was indebted to it, for unpaid. premiums on the original policy, in the sum of $815.16. Judgment was subsequently entered against the garnishee on the disclosure for the amount of plaintiff's judgment, and this appeal followed. No claim is made by appellant that the legal relations of the parties were in any wise affected by the receivership. The question involved is: As to plaintiff, was the garnishee indebted to defendant under the facts disclosed? Relying mainly upon Patterson v. Adan, supra, plaintiff insists on an affirmative answer, contending assurer's assumption and conduction of the defense in the main action imposed a liability to pay the judgment recovered, notwithstanding defendant's indebtedness to it in a greater amount for unpaid premiums on the policy in force at the time of the accident. As pointed out by Mr. Justice Bunn, in Butler Bros. v. American Fidelity Co. 120 Minn. 157, 164, 139 N. W. 355, 358, referring to the Adan case: "The question * * * was whether the insurer was liable to pay the amount of a judgment rendered against the insured after a trial of the issue, but before the insured had paid such judgment." This court held in the case referred to that the assurer could not take sole charge of the defense of an action seeking a recovery indemnified by the policy, to the exclusion of the assured, according to its right thereunder, and, after judgment entered against defendant, deny obligation to pay assured the amount thereof, not exceeding, however, the limit of liability stipulated in the policy, and also that the sum payable could be recovered in garnishment proceedings instituted by plaintiff-the fact of defendant's nonpayment of the judgment being regarded neither as a contingency nor condition precedent to its liability therein. Notwithstanding ap pellant's vigorous argument to the contrary, it is difficult to assign reasons, aside from those of a technical character, for holding otherwise. Defendant's insolvency in the present case illustrates the propriety of the rule; for under such circumstances assurer would otherwise often escape liability, simply because of assured's inability to pay the judgment. No fair purpose can be subserved, as between parties to the policy, by the useless circuity of requiring assured first to pay the judgment with its money and the assurer forthwith to reimburse. But the general language of the opinion must be taken as confined, and as intended by the court to be confined and applicable, to a determination of the particular questions involved (State v. Johnson, 111 Minn. 255, 262, 126 N. W. 1074), and these clearly did not include the present inquiry. Plaintiff was not a party to the contract, and by its terms the amount of the premiums could be ascertained only at termination of the policy period. She can neither object to the stipulation in this regard, nor complain because the assurer, who was under no legal obligation to her to do either, failed to collect or declined to file a claim therefor with the receiver. If defendant had paid the judgment and sued the garnishee, beyond doubt the latter could have offset its claim for unpaid premiums. It would be unjust to penalize the assurer and deprive it of this right, merely because it exercised a further contractual right in defending the action, for the outcome of which it might be held responsible and where the verdict was for one-fiftieth of the amount demanded, thus placing it in a worse position than it would have occupied had defendant paid the judgment in accordance with the strict terms of the policy. This cannot be done. See Bacon v. Felthous, 103 Minn. 387, 390, 115 N. W. 205. Moreover, insistence on its claim to offset is not an assertion inconsistent with the obligation assumed in defending the action because, among other reasons, a much larger verdict could have been returned under the allegations of the complaint. We hold the assurer was not indebted to defendant at the time of garnishment. Judgment reversed. JOSEPH RESNIKOFF v. LOUIS FRIEDMAN.1 January 16, 1914. Nos. 18,430-(199) Use of independent contractor's scaffold-duty of defendant. Plaintiff was injured by the breaking of one of the timbers in a scaffold erected by carpenters in the construction of a house under a contract with defendant. Plaintiff had entered into a contract with defendant to furnish and put in place the tin valleys and gutters for the house at a specified price, and was injured while using the scaffold in the performance of his contract. It is held: (1) The relation of master and servant did not exist between plaintiff and defendant, and the rule of safe place to work does not apply. (2) Defendant owed plaintiff the duty of exercising ordinary care to avoid injuring him. The scaffold was erected by the carpenters, who were not servants of defendant, but independent contractors. The rule of respondeat superior does not apply. Defendant did not select the timber that went into the scaffold, but it was selected by the carpenters out of the timber furnished by defendant for the erection of the house. Defendant was not bound to inspect the timber so selected by the carpenters for the scaffold, and was not guilty of a breach of his duty to use ordinary care to avoid injuring plaintiff. Action in the district court for Ramsey county to recover $5,250 for injury received while in the employ of defendant. The answer admitted a contract between plaintiff and defendant by the terms of which plaintiff agreed for a stipulated price to construct certain tin eaves upon a certain building, and alleged that, if plaintiff met with any accident, it was occasioned solely by reason of his negligence in the premises. The case was tried before Catlin, J., who granted de 1 Reported in 144 N. W. 1095. Note. The question of the liability of a master to a servant for failure to provide independent contractor with safe appliances is treated in a note in 1 L.R.A. (N.S.) 283. And for the general rule as to the absence of the master's liability for acts of independent contractor, see elaborate note in 65 L.R.A. 622. |