Volume 250 — Minnesota Reports

<bold>Workmen's compensation — compensable injury — occupational</bold> <bold>disease — general public not equally exposed</bold>. <block_quote> 1. Ordinary diseases of life may be occupational because in the definition (M.S.A. <cross_reference>176.011</cross_reference>, subd. 15) the legislature does not prohibit ordinary diseases of life, but only ordinary diseases of life to which the general public is equally exposed outside of employment; therefore a so-called ordinary disease might become occupational if it meets the other requirements of the definition and if it can be shown that the general public was not equally exposed outside of the employment to the particular disease under consideration.</block_quote> <bold>Same — same — same — natural incident of particular</bold> <bold>occupation</bold>. <block_quote> 2. Under the present statutory definition ordinary diseases of life to which all members of the general public are equally exposed outside of the employment are not compensable, but an exception is to<page_number>Page 221</page_number> be recognized as regards ordinary diseases where they follow as an incident to an occupational disease, or where the exposure peculiar to the occupation makes of such disease an occupational hazard.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 3. To come within the definition an occupational disease must be a disease which is a natural incident of a particular occupation, and must attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of that attending employment in general.</block_quote> <bold>Same — same — same — purpose of act</bold>. <block_quote> 4. The obvious purpose of the 1943 act (L. 1943, c. 633), was to broaden the scope and enlarge the field within which such occupational risks were to be covered. The logical conclusion to be drawn is that the provision "arising out of and in the course of employment peculiar to the occupation in which the employee is engaged and due to causes in excess of the hazards ordinary of employment," refers to the hazard to which an employee may be exposed in doing his work.</block_quote> <bold>Same — same — same — tuberculosis — sufficiency of</bold> <bold>evidence</bold>. <block_quote> 5. The evidence in this case indicates that the employee was exposed in his employment to the risk of contracting tuberculosis in a far greater degree and in a wholly different manner than is the public generally.</block_quote> <bold>Same — same — same — same — same</bold>. <block_quote> 6. The evidence sustains the commission in finding that employee contracted the disease of tuberculosis arising out of and in the course of his employment either as a personal injury due to the invasion of the tuberculosis germs caused by occupational disease by reason of his contact with a fellow policeman proved to have been suffering from active tuberculosis, or in the alternative, as an occupational disease due to conditions peculiar to his employment as a policeman which caused him to be exposed to the disease to a greater extent than is the general public.</block_quote> <bold>Same — same — same — same — same</bold>. <block_quote> 7. The record discloses that employee was not affected with any diseases or disorders prior to beginning his work as a policeman in<page_number>Page 222</page_number> the employ of the city of St. Paul.</block_quote> <bold>Same — same — same — same — same</bold>. <block_quote> 8. In the instant case the conditions of the employment proximately caused the employee to become infected with tuberculosis and therefore his disease was under the circumstances and in fact a natural incident of his employment and due to the special work environment with a fellow policeman in squad-car duty differing from the ordinary exposure on the part of policemen. He encountered a hazard of contracting the disease far in excess of the hazard to which the ordinary policeman employee may be exposed in his employment.</block_quote> <bold>Same — same — same — purpose of act</bold>. <block_quote> 9. We deem the intent of the legislature in enacting L. 1943, c. 633, to have been to liberalize the approach in the consideration to be given to occupational diseases thereby intending to cover those (1) arising out of the employment, (2) where there is found to be a direct causal connection between the conditions under which the work is performed and the disease, and (3) that if the disease follows as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment and in the circumstances the public is not equally exposed to the hazard of the disease outside of the employment, it may be classed as an occupational disease.</block_quote> <bold>Same — proceedings — review — findings of Industrial</bold> <bold>Commission</bold>. <block_quote> 10. We apply the rule that the findings of the Industrial Commission on fact questions will not be disturbed unless consideration of the evidence with permissible inferences which may be drawn therefrom compels or requires reasonable minds to adopt contrary conclusions.</block_quote>

<bold>Contempt — constructive contempt — imprisonment —</bold> <bold>requirements</bold>. <block_quote> 1. Under our statutes a person may not be placed in jail for constructive contempt unless that person has first appeared before the court and been examined.</block_quote> <bold>Same — failure and inability to make alimony payments</bold>. <block_quote> 2. A person may not be found guilty of contempt for failing to make alimony payments where he is unable to make the payments even though such inability is due to a refusal to work.</block_quote> <block_quote> We are not deciding whether a party who wilfully refuses to comply with an order for the payment of alimony or one who stubbornly, defiantly, and rebelliously renders himself unable to obey the decree by refusing to perform his regular work, or who purposely and wilfully reduces his income with the intent of defying the court and evading alimony obligations, can successfully plead inability to pay as a defense in contempt proceedings as that question is not before us in the instant case.</block_quote> <bold>Same — failure to pay alimony — validity of imprisonment</bold> <bold>where payment ordered on promissory note endorsed to third</bold> <bold>party</bold>. <block_quote> 3. A court may not order that a person make payments on a promissory note and, upon his failure to make such payments, that he be placed in jail for contempt.</block_quote>

<bold>Appeal and error — review — order of dismissal — failure of</bold> <bold>trial court to specify whether made with or without</bold> <bold>prejudice</bold>. <block_quote> Upon an appeal from an order vacating a prior order permitting the service of a third-party complaint, which order of vacation failed to specify whether it was made with or without prejudice and therefore (pursuant to Rule 41.02 of Rules of Civil Procedure) is subject to the construction that it operates as an adjudication upon the merits, the case and return may, under the circumstances here existing, be remanded to the trial court for a clarification as to whether such order was made with or without prejudice.</block_quote>

<bold>Negligence — care required of landlord — maintenance of</bold> <bold>common hallway</bold>. <block_quote> 1. Where instructions on issue of landlord's negligence were separated into two divisions, one of which related to obligation as between landlord and tenants of maintaining and keeping in repair common hallways; and other of which related to landlord's obligation under ordinances and statutes; and it was made clear to jury that latter obligation rested upon the landlord alone, <italic>held</italic> such instructions were not misleading and could not have given jury impression that no obligation rested upon landlord to comply with applicable ordinances and statutes.</block_quote> <bold>Same — same — same — contributory negligence of tenant</bold>. <block_quote> 2. Where, in conjunction with court's instruction on issue of contributory negligence, it charged jury that, where there was no agreement to repair leased premises, and landlord was not guilty of fraud or concealment as to their condition, and defects therein, if any, were obvious, tenant took risk of their safe occupancy and landlord was not liable for injuries sustained by reason of unsafe condition of premises, <italic>held</italic> such instruction did not lead jury to believe that tenant assumed any risks arising because of landlord's failure to comply with applicable municipal or statutory requirements.</block_quote><page_number>Page 351</page_number> <bold>Same — same — same — same</bold>. <block_quote> 3. Where evidence would support finding that plaintiffs, as tenants of defendant, were required to keep common hallways clean and in repair; that they had permitted debris and rubbish to accumulate therein; and that a subsequent fire appeared to have originated in such debris, <italic>held</italic> trial court properly submitted to jury question whether plaintiffs' negligence was a proximate cause of fire so as to absolve defendant from liability therefor.</block_quote> <block_quote> However, where record did not disclose any negligence on part of 6-year-old Barbara Chapman, <italic>held</italic> court's refusal to instruct jury that she was free from negligence as a matter of law constituted material error requiring new trial for her.</block_quote>

<bold>Unfair competition — sales at less than cost — when illegal</bold>. <block_quote> 1. Under Minnesota law, offers or sales at less than cost are illegal only where <italic>both</italic> injury to competitors and the destroying of competition are established as either the purpose or the effect of the defendant's action.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. M.S.A. <cross_reference>325.06</cross_reference>(4), which requires, among other things, that the provisions of § <cross_reference>325.04</cross_reference> shall not apply to any sale made in good faith to meet the legal prices of a competitor, does not require that the defendant establish the absolute legality of his competitor's prices in order to rely on such price and come within such exemption. If a<page_number>Page 505</page_number> merchant in good faith sets the price of an article on the basis of a competitor's price, which he in good faith believes to be a legal price, there is no violation.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. Section <cross_reference>325.06</cross_reference>(4) does not prevent the introduction of competitor's prices in all instances or for all purposes without the foundation required by this section. Where the defendants claim that sales below cost were necessary to actual business survival as well as a type of business promotion and advertising, and that such sales did not have the effect of destroying competition, competitors' prices, for a reasonable time before and after the defendants' prices, may be shown to substantiate such claims.</block_quote> <bold>Same — same — action to enjoin — sufficiency of evidence</bold>. <block_quote> 4. In an action by the state to enjoin the operators of a small retail grocery chain from offering and selling merchandise at less than cost as prohibited by law, the evidence examined and <italic>held</italic> to support the trial court's finding that, although certain items were advertised and sold at less than cost, such advertisements and sales were not made for the purpose or with the effect of injuring competitors and destroying competition.</block_quote> <bold>Trial — court sitting without jury — findings of fact</bold>. <block_quote> 5. A trial court sitting without a jury need only find the ultimate issuable facts. Where the decisive facts found by the trial court are sustained by the evidence, it is not necessary to specifically discuss proposed findings of fact which would not change the result.</block_quote> <bold>Evidence — admissibility — deposition</bold>. <block_quote> 6. Where full latitude is afforded a plaintiff on cross-examination of a defendant, including the use of parts of the defendant's deposition, there is no prejudicial error in the trial court's excluding the introduction of the entire deposition of the defendant, particularly where the plaintiff does not set forth the allegedly damaging evidence contained in the deposition and no offer of proof appears in the record.</block_quote>

<bold>Workmen's compensation — persons entitled to compensation —</bold> <bold>partial dependents of deceased employee — determination</bold>. <block_quote> 1. Whether petitioners are partial dependents under our workmen's compensation laws at the time of the death of an employee is a question of fact for determination by the Industrial Commission. If there is evidence reasonably sustaining a finding, it must stand.</block_quote> <bold>Same — purpose of act</bold>. <block_quote> 2. The Workmen's Compensation Act is remedial and should be construed liberally to effectuate its purpose.</block_quote> <bold>Same — persons entitled to compensation — partial dependents</bold> <bold>of deceased employee — determination</bold>. <block_quote> 3. Substantial regularity in contribution is essential to a finding of partial dependency.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 4. The regular contributions essential to a partial dependency need not necessarily be contributions in money but may consist of labor or other benefits. The test is whether the alleged dependents regularly derive substantial benefits from the acts of the employee.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 5. The test of dependency is not whether the dependents could support life without the employee's contribution but whether they receive contributions, as part of their means of living, with substantial regularity.</block_quote> <bold>Same — same — same — same</bold>. 6. The evidence in this case sufficiently sustains the commission's finding of partial dependency.<page_number>Page 545</page_number>