Volume 258 — Minnesota Reports

<bold>Negligence — possessor of land — liability to trespassing</bold> <bold>child — presence not known — injury not foreseen</bold>. <block_quote> In an action to recover damages for wrongful death of trespassing child where the owner or occupier of the premises involved did not know or have reason to know that children frequented the premises, or it was not reasonably foreseeable that harm would come to them if they were there, the evidence is insufficient as a matter of law to establish negligence.</block_quote>

<bold>Workmen's compensation — employer-employee relationship —</bold> <bold>distinction between employee and independent contractor —</bold> <bold>common-law rule</bold>. <block_quote> 1. The distinction between an employee and an independent contractor is largely the difference between one who undertakes to achieve a given result under an arrangement with another who has authoritative control over the manner and means in which and by which the result shall be accomplished and one who agrees to achieve a given result but is not subject to the orders of another as to the method or means to be used.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. Under the facts of this case the evidence is conclusive that a relationship of vendor-vendee and not of employer-employee existed between the parties.</block_quote>

<bold>Workmen's compensation — proceedings — review — findings</bold> <bold>sustained</bold>. <block_quote> 1. If the testimony in the instant case is taken in the light most favorable to the employee, the record herein stands undisputed, both from the standpoint of lay testimony and medical testimony, that employee is permanently and totally disabled as a combined result of permanent partial disabilities sustained in three different accidents.</block_quote> <bold>Same — right to compensation from special fund — injury</bold> <bold>combining with previous nonindustrial disability</bold>. <block_quote> 2. Where a partially disabled workman suffers an injury which of itself would cause only partial disability, but which combined with other previous disability causes total disability, he is entitled to receive the additional compensation provided for by statute out of the special fund even though his previous disability did not result from an industrial accident.</block_quote> <bold>Same — proceedings — hypothetical question — truth of</bold> <bold>assumptions therein — determination</bold>. <block_quote> 3. It is for the Industrial Commission, as the trier of fact, to determine, in the light of the evidence as a whole, whether the assumptions of fact embodied in a hypothetical question upon which an expert witness bases his opinion of total disability are true.</block_quote> <bold>Same — total disability — ability to perform some parts of</bold> <bold>occupation — effect</bold>. <block_quote> 4. Even though an injured person may be able to perform some parts of his occupation, he may be held to be totally disabled if he is unable to perform the substantial and material parts of some gainful work or occupation with reasonable continuity.</block_quote><page_number>Page 337</page_number> <bold>Evidence — expert opinions — factors in determining weight</bold> <bold>given</bold>. <block_quote> 5. Conflicts in the opinions of expert witnesses are to be resolved by the trier of fact and, in determining the comparative weight to be given to the respective opinions, it may consider the qualifications of each expert and the source of his information.</block_quote> <bold>Workmen's compensation — proceedings — granting rehearing —</bold> <bold>vacating award — discretion of commission</bold>. <block_quote> 6. The granting of a rehearing under our workmen's compensation statutes rests in the discretion of the Industrial Commission; whether there exists sufficient cause to justify vacation of award ordinarily rests in the sound discretion of the commission.</block_quote> <bold>Same — same — review — function and policy of supreme court</bold>. <block_quote> 7. It is the function of this court in reviewing a decision of the Industrial Commission to determine whether the evidence is such that the commission might reasonably have come to the conclusion which it did. The findings of the commission will not be disturbed unless they are manifestly contrary to the evidence or unless consideration of the evidence and inferences permissible therefrom clearly requires reasonable minds to adopt a contrary conclusion.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 8. The policy of this court in reviewing the findings of the Industrial Commission is not to determine whether on the facts the decision of the commission is correct or even preferable to another, but, rather, only to determine whether the findings have sufficient basis of inference reasonably to be drawn from the facts.</block_quote> <bold>Administrative law — adoption of administrative rules —</bold> <bold>limitation</bold>. <block_quote> 9. It is axiomatic that an administrative body can neither make nor change substantive law. It may adopt administrative rules, but in doing so cannot change existing or substantive law, or make new law.</block_quote> <bold>Workmen's compensation — proceedings — review — findings</bold> <bold>sustained</bold>. <block_quote> 10. The record herein clearly sustains the commission's findings of total disability and that the employer and insurer have the sole liability.</block_quote>

<bold>Criminal law — trial — instructions with regard to</bold> <bold>presumptions — instruction that premeditation is presumed</bold> <bold>from act of killing</bold>. <block_quote> 1. It is error to instruct a jury that, unless rebutted, the element of premeditated design necessary for first-degree murder is presumed from the unlawful act of killing.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. The giving of instructions with regard to presumptions is not proper in criminal cases, at least where all of the facts are disclosed and countervailing evidence is adduced.</block_quote> <bold>Same — same — instructions — error — failure to object</bold>. <block_quote> 3. Viewing the instructions as a whole, and in light of the overwhelming evidence of the defendant's guilt and his failure to make timely objection, <italic>held</italic> that the challenged instruction, although erroneous, did not materially prejudice the defendant's rights so as to require a new trial.</block_quote> <bold>Same — evidence — admissibility — reputation of deceased for</bold> <bold>violence</bold>. <block_quote> 4. While the deceased's reputation for violence might be relevant in determining who was the aggressor, a specific act of violence is not admissible for this purpose.</block_quote> <bold>Same — trial — instructions — refusal to submit lesser crime</bold> <bold>to jury</bold>. <block_quote> 5. Under the evidence the court did not err in refusing to submit to the jury the offense of manslaughter in the second degree.</block_quote>

<bold>Workmen's compensation — proceedings — review — findings of</bold> <bold>commission — view of evidence</bold>. <block_quote> 1. The record in the instant case establishes that employee sustained a compensable injury on July 3, 1952; that, as a result thereof, thereafter, on June 15, 1954, surgery was necessitated because the employee's injured leg had grown worse and "locked." There is competent evidence in the record to clearly establish that employee suffered disability during this period.</block_quote> <bold>Same — earning capacity after injury — findings of</bold> <bold>commission</bold>. <block_quote> 2. It is not what the employee earns after the injury, but what the employee is able to earn which is determinative in a case of this character.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. The record in the instant case contains substantial evidence that for the period between employee's injury and his surgery he could not do heavy labor, and that his earning capacity was seriously affected by the injury during this entire period.</block_quote><page_number>Page 426</page_number> <bold>Same — same — same</bold>. <block_quote> 4. The commission could reasonably find from the record that, during the periods when no work was available to the employee with which he could cope in his disabled condition, his inability to get light work of the type which he could do was traceable to the injury as well as to the unwillingness of prospective employers to hire him due to his disability and the probability that he would be unable to perform the work while that disability continued.</block_quote> <bold>Same — earning capacity — inability to obtain work — injury</bold> <bold>isolating employee from employment</bold>. <block_quote> 5. An injured person may recover to the point where he can, if favored, perform special service, if such is obtainable, but, if none can be obtained because of his injury, his capacity to work and earn cannot be measured against his incapacity. If his injury isolated him from employment, then, of course, he is not to be held to have capacity to work and earn wages.</block_quote> <bold>Same — proceedings — review — findings of commission — view</bold> <bold>of evidence</bold>. <block_quote> 6. It is the duty of this court to view the evidence in the light most favorable to the findings of the Industrial Commission.</block_quote>

<bold>Workmen's compensation — permanent total disability —</bold> <bold>compensation payable</bold>. <block_quote> Employee in the instant case suffered permanent total disability, not permanent partial disability, and compensation payments recoverable by him are limited by the provisions contained in M.S.A. 1945, § <cross_reference>176.11</cross_reference>, subd. 4, to $10,000 for his permanent total disability and $5,000 from the special compensation fund.</block_quote><page_number>Page 514</page_number>

<bold>Attorney and client — reinstatement proceedings — evidence of</bold> <bold>rehabilitation and good conduct</bold>.