Volume 259 — Minnesota Reports

<bold>Workmen's compensation — proceedings — review — findings of</bold> <bold>Industrial Commission</bold>. <block_quote> 1. It is the function of this court upon appeal from 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. If so, findings will not be disturbed unless they are manifestly contrary to the evidence or unless the consideration of the evidence and inferences permissible therefrom would clearly require reasonable minds to adopt a contrary conclusion.</block_quote> <block_quote> <italic>Held</italic>, that there was evidence to justify the commission in affirming the findings and determination of the referee in connection with total and partial disability of the employee.</block_quote> <bold>Same — right to compensation for temporary partial disability</bold> <bold>— failure to secure other employment — effect</bold>. <block_quote> 2. <italic>Held</italic>, that there was no reversible error on the part of the commission under facts and circumstances here in not finding that employee's failure to secure other employment barred her right to recover temporary partial disability compensation.</block_quote>

<bold>Wills — construction — when in accordance with precedents and</bold> <bold>statutes</bold>. <block_quote> 1. Words of a will should be construed in accordance with precedents and statutes unless evidence shows testator intended some other meaning.</block_quote> <bold>Adoption — adopted children — status — policy of state</bold>. <block_quote> 2. By policy of this state, adopted children stand in same position as biological children and are presumed included in terms "children," "issue," and "descendants."</block_quote> <bold>Conflicts of law — construction of will — status of claimant</bold> <bold>— rights in estate — law determining</bold>. <block_quote> 3. When an estate is probated in Minnesota, claimant's status is determined by laws of his domicile but his rights in the estate are determined by laws of this state.</block_quote> <bold>Same — legal system of Scotland — basis</bold>. <block_quote> 4. Scotland has a separate legal system and different laws than England, and the basis of Scots law is Roman law, rather than English common law.</block_quote> <bold>Same — law of Scotland — adoption recognized</bold>. <block_quote> 5. Prior to establishment of statutory adoption, de facto adoption was recognized in Scotland.</block_quote> <bold>Same — construction of will — status of claimant — rights in</bold> <bold>estate — law determining</bold>. <block_quote> 6. Claimant who was a resident of Scotland at time of de facto adoption is presumptively intended to take under a will as a "descendant" of his adoptive father where there is no evidence of a contrary intent by testator.</block_quote><page_number>Page 194</page_number>

<bold>Trial — instructions — unlawful speed as negligence per se —</bold> <bold>when instruction required</bold>. <block_quote> Where a fact question is presented with respect to whether a vehicle exceeded the speed limit within a municipality, the trial court is required to charge the jury that if it finds the party was traveling at a speed in excess of the statutory speed limit it must find him guilty of negligence. Here a fact question was presented as to the speed of defendant's vehicle, and the failure of the court to so charge constitutes grounds for a new trial.</block_quote>

<bold>Workmen's compensation — recovery against third party —</bold> <bold>subrogation rights — extent</bold>. <block_quote> 1. Employer and insurer, under the facts and the applicable statutes in the instant case, are entitled to claim credit against the recovery by the surviving spouse in an action for death by wrongful act only to the extent of the compensation payable to her during the period of her widowhood.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. Since employer and insurer are only liable for payment of compensation during dependency, they are entitled to subrogation only for compensation payments for which they are liable because of such dependency.</block_quote> <bold>Same — dependents' rights to compensation — effect of widow's</bold> <bold>remarriage</bold>. <block_quote> 3. The compensation loss of the widow because of her remarriage inures to the deceased employee's minor child rather than to the employer to the exclusion of the dependent of the deceased employee.</block_quote> <bold>Same — subrogation rights of employer and Insurer —</bold> <bold>construction</bold>. <block_quote> 4. Since subrogation rights of employer and insurer are created<page_number>Page 443</page_number> by statute in derogation of common-law rights of the dependents, they must be strictly construed against the employer and insurer and in favor of the dependents.</block_quote> <bold>Same — dependents' rights to compensation — when finally</bold> <bold>determined — jurisdiction of commission</bold>. <block_quote> 5. Where there remains a continuing liability under the Workmen's Compensation Act subject to changes in dependency, the ultimate rights of the beneficiaries cannot be finally determined until such rights are definitely fixed by the occurrence of all contingencies which may affect dependency.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 6. The Industrial Commission retains jurisdiction to determine the credit to be allowed against workmen's compensation liability.</block_quote> <bold>Death by wrongful act — right of widow to share in recovery —</bold> <bold>effect of remarriage</bold>. <block_quote> 7. The right of the wife to continued compensation payment ceases with her remarriage, but not so as to her right to share in the proceeds of any recovery under the death-by-wrongful-act statute, Minn. St. <cross_reference>573.02</cross_reference>. If the dependent wife remarries during the pendency of the action for death by wrongful act, her right to share in the recovery stands unimpaired, and this share may far exceed the total of compensation benefits she has theretofore received.</block_quote> <bold>Workmen's compensation — action against third party — nature</bold> <bold>of action</bold>. <block_quote> 8. The action brought herein under Minn. St. 1949, § <cross_reference>176.06</cross_reference>, sub. 2, to recover damages, whether prosecuted or controlled by the employee's dependents or by the employer, is for the primary benefit of the deceased employee's dependents.</block_quote>

<bold>Negligence — cause of airplane crash — proof required — rule</bold> <bold>adopted</bold>. <block_quote> 1. There are two lines of authority in airplane accident cases. One holds that the jury cannot infer negligence in the absence of direct evidence of a specific act of negligence. The second permits an inference of negligence where the evidence tends to exclude causes for a plane crash other than human fault. The latter view is more appropriate and consonant with contemporary conditions and is adopted.</block_quote> <bold>Same — as cause of airplane crash — when properly inferred</bold>. <block_quote> 2. Where evidence regarding plane crash eliminates mechanical or structural failure, meteorological conditions, or collision as cause, the only reasonable inference remaining is that the cause was human fault.</block_quote> <bold>Airplane — operation in negligent manner — responsibility of</bold> <bold>pilot in command</bold>. <block_quote> 3. If an aircraft is operated in a negligent manner, the pilot in command is negligent regardless of whether or not he is at the controls at the time.</block_quote> <bold>Negligence — as cause of airplane crash — responsibility in</bold> <bold>absence of evidence as to identity of operator</bold>. <block_quote> 4. Where evidence sustains an inference that plane crash was caused by human fault and there is no evidence as to who was operating controls at time of fault, the pilot in command is responsible.</block_quote>

<bold>Schools and school districts — school board — termination of</bold> <bold>teacher's contract — prerequisites</bold>. <block_quote> 1. Minn. St. 1957, § 130.18, subd. 3, (now Minn. St. <cross_reference>125.12</cross_reference>, subd. 3) sets forth prerequisites to termination of a teacher's continuing contract of employment by a school board. It provides that teacher shall first be notified of proposed termination and shall have 10 days after its receipt to request hearing thereon before board and that such request must be granted before board may take final action.</block_quote> <bold>Same — same — same — sufficiency of notice</bold>. <block_quote> 2. In instant case where notice sent plaintiff teacher by defendant school board under Minn. St. 1957, § 130.18, subd. 3, did not set forth that defendant <italic>proposed</italic> to terminate plaintiff's contract, but rather was to effect that such contract had been terminated, <italic>held</italic> such notice did not comply with provisions of said section.</block_quote> <bold>Same — same — same — prerequisites</bold>. <block_quote> 3. Where, within 10 days of notice, defendant received from plaintiff written communication in which she protested termination of her contract and stated "I would appreciate a reconsideration"; where plaintiff appeared at next meeting of board of which she had been advised in notice; where nothing further was done with reference to termination of her contract either at such meeting or at any subsequent time; and where no further hearing was ever granted her, <italic>held</italic> plaintiff's contract was not terminated in accordance with provision of § 130.18, subd. 3, but remained in effect for following school term.</block_quote> <bold>Damages — breach of employment contract — employee's</bold> <bold>subsequent earnings — burden of proof</bold>. <block_quote> 4. Burden of proving that plaintiff could have earned or did earn compensation subsequent to wrongful discharge rested upon defendant who asserted such claim in defense of plaintiff's action, and in absence of any evidence with reference thereto, plaintiff became<page_number>Page 488</page_number> entitled to full compensation for the 1958-1959 school term under the contract.</block_quote>