Volume 243 — Minnesota Reports

<bold>Mandamus — petition for peremptory writ — case remanded</bold>. <block_quote> In view of our decision in Johnson v. Chicago, Burlington Quincy R. Co. <cross_reference>243 Minn. 58</cross_reference>, <cross_reference>66 N.W.2d 763</cross_reference>, we deem it unnecessary to pass on the petition for a peremptory writ of mandamus. The case is therefore remanded with instructions that the trial court vacate its order denying defendant's motion to dismiss and reconsider the matter in the light of the opinion in the above-mentioned case.</block_quote>

<bold>Eminent domain — personal property — applicability of c. 117</bold>. <block_quote> 1. M.S.A. <cross_reference>454.01</cross_reference> authorizes any city of the first class in Minnesota, except cities operating under a home rule charter framed pursuant to Minn. Const. art. <cross_reference>4</cross_reference>, § 36, and all cities of the fourth class, whether operating under such a home rule charter or not, to acquire plants for furnishing gas for municipal purposes as well as for the use of the inhabitants of the city. For that purpose, such city may exercise the power of eminent domain in pursuance of c. 117 and thereby may take any and all property necessary or convenient for acquiring and establishing such a plant and for adding thereto, including lands, manufacturing plants, pipe lines, storage plants, and any and all property necessary or convenient, wherever situate, within or without the corporate limits and whether devoted to public use or not. Lone Star Gas Co. v. City of Fort Worth, <cross_reference>128 Tex. 392</cross_reference>, <cross_reference>98 S.W.2d 799</cross_reference>, <cross_reference>109 A.L.R. 374</cross_reference>, distinguished. Chapter 117 and related sections are applicable and adequate in the condemnation of the gas properties involved herein even though such properties consist of about 90 percent personal property.</block_quote> <bold>Same — same — constitutionality of c. 117 as applied to gas</bold> <bold>company — adequacy for fairly appraising just compensation</bold>. <block_quote> 2. Chapter 117 is constitutional as it affects the rights of the gas company involved herein. Section <cross_reference>117.07</cross_reference> <italic>held</italic> sufficient and adequate for fairly appraising just compensation to be awarded the gas company involved for its gas utility system.</block_quote>

<bold>Criminal law — disorderly conduct statute — not</bold> <bold>unconstitutional for vagueness</bold>. <block_quote> 1. The disorderly conduct statute of this state, L. 1953, c. 661 (M.S.A. <cross_reference>615.17</cross_reference>), which provides that "Every person who engages in brawling or fighting, shall be guilty of disorderly conduct, herein defined to be a misdemeanor, and upon conviction thereof, shall be punished by a fine of not to exceed $100 or by imprisonment in the county jail for not to exceed 90 days," does not violate the federal and state constitutional guarantee of due process of law because of vagueness or indefiniteness.</block_quote> <bold>Same — same — nature of offense</bold>. <block_quote> 2. The question as to whether a particular act is disorderly depends largely on the facts in the particular case, and in the determination of such question, not only the nature of the particular act should be considered but also the time and place of its occurrence as well as all the surrounding circumstances.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. Conduct is disorderly in the ordinary sense when it is of such nature as to affect the peace and quiet of persons who may witness it and who may be disturbed or provoked to resentment thereby. However, to come within the prohibition of the statute, the annoyance caused by the act must be both offensive and disorderly.</block_quote> <bold>Same — same — same</bold>. <block_quote> 4. The conduct and the acts must be such as are of a nature to corrupt the public morals or to outrage the sense of public decency. The probable and natural consequences of the conduct or the acts committed must at all times be considered and given weight as an important element.</block_quote> <bold>Same — same — pleading</bold>. <block_quote> 5. Where a charge of disorderly conduct is made under § <cross_reference>615.17</cross_reference> it must be shown, in order to convict, that the act complained of is within<page_number>Page 197</page_number> the words of the statute, or in lieu thereof, the pleader must set forth the facts constituting the same.</block_quote> <bold>Same — same — nature of offense</bold>. <block_quote> 6. An actual intent to provoke a breach of the peace may or may not be an important element under the terms and provisions of § <cross_reference>615.17</cross_reference>, dependent on the nature of the act. See, State v. Shelby, <cross_reference>95 Minn. 65</cross_reference>, <cross_reference>103 N.W. 725</cross_reference>.</block_quote> <bold>Same — same — same</bold>. <block_quote> 7. Where a statute does not require that the disorderly conduct or act be committed in a public place or a specified place, then it is sufficient if the act is committed within the confines of the jurisdiction of the court, and, dependent upon facts and circumstances, it may be enough if the peace of only one member of the public or of one person is disturbed.</block_quote>

<bold>Negligence — care required of merchant displaying wares near</bold> <bold>stairway — sufficiency of evidence</bold>. <block_quote> 1. A merchant who displays wares on his premises near some opening, stairway, or obstruction and invites customers to inspect and make selections therefrom, cannot reasonably expect such customers to bestow the same degree of attention on their surroundings as would be required under other circumstances, and the duty rests upon him to give them adequate warning of such risks or dangers.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. This rule held applicable here where evidence supports findings that defendant failed to warn decedent, who was examining sacks which defendant had for sale, of an open stairway back of her and where decedent stepped backward during such examination and fell down stairway to her death.</block_quote> <bold>Same — same — contributory negligence</bold>. <block_quote> 3. Under above principles and the facts described, issue of decedent's contributory negligence was for the jury.</block_quote> <bold>Cases distinguished</bold>. <block_quote> 4. Johnson v. Ramberg, <cross_reference>49 Minn. 341</cross_reference>, <cross_reference>51 N.W. 1043</cross_reference>; Anderson v. Sears, Roebuck Co. <cross_reference>223 Minn. 1</cross_reference>, <cross_reference>26 N.W.2d 355</cross_reference>; and Ryberg v. Ebnet, <cross_reference>218 Minn. 115</cross_reference>, <cross_reference>15 N.W.2d 456</cross_reference>, distinguished.</block_quote>

<bold>Unemployment compensation — scope of review —</bold> <bold>disqualification from benefits — quitting without good cause</bold> <bold>attributable to employer</bold>. <block_quote> On appeal from a decision of the commissioner of the department of employment security, our scope of review is limited to a determination of whether the evidence was such that the commissioner might reasonably make the decision which he made. Where there is any evidence reasonably tending to sustain his findings, they will not be disturbed on review. <italic>Held</italic>, under this rule the commissioner's decision in the instant case that relator voluntarily discontinued her employment without good cause attributable to the employer must be sustained.</block_quote>

<bold>Criminal law — trial — argument of prosecuting attorney —</bold> <bold>improper — statements tending to create prejudice</bold>. <block_quote> The evidence is sufficient to support the verdict of conviction, but substantial rights of the defendant were prejudiced by the quoted statements made by the prosecuting attorney in his closing argument to the jury.</block_quote>

<bold>Conversion — burden of proof</bold>. <block_quote> 1. In an action brought to recover personal property belonging to the estate of a deceased person, proof that the property belonged to decedent immediately or shortly prior to death makes out a prima facie case of ownership. The burden then rests on one who asserts a gift of such property to prove such gift.</block_quote> <bold>Same — double liability — good faith is defense</bold>. <block_quote> 2. Where it is alleged that a person has converted property of a decedent's estate prior to the appointment of a representative, good faith of the alleged converter is a defense to imposition of double liability under M.S.A. <cross_reference>525.392</cross_reference>.</block_quote> <bold>Evidence — conversation with deceased person — when</bold> <bold>admissible</bold>. <block_quote> 3. The testimony of a wife is not inadmissible under § <cross_reference>595.04</cross_reference> in an action against her husband to recover property, or the value thereof, alleged to have been converted, unless it is shown that she has a direct pecuniary interest in the outcome of the litigation.</block_quote> <bold>Same — same — testimony on acts of deceased is admissible</bold>. <block_quote> 4. Section <cross_reference>595.04</cross_reference> does not exclude evidence of the acts of a decedent.</block_quote>