Volume 267 — Minnesota Reports

<bold>Automobiles — negligence of driver — collision — concurrent</bold> <bold>negligence of drivers</bold>. <block_quote> 1-2. Whether or not a collision in which a truck collided with the rear of an automobile was caused by the concurrent negligence of a truckdriver, upon a claim that he negligently operated the truck with known defective brakes and was otherwise negligent, and the negligence of the automobile driver, upon the claim that she violated Minn. St. <cross_reference>169.15</cross_reference>, the slow-speed statute, and was otherwise negligent, was for the jury and the evidence supports its findings.</block_quote> <bold>Same — same — slow-speed statute — inclusion in charge</bold>. <block_quote> 3. Section <cross_reference>169.15</cross_reference>, the slow-speed statute, was intended to apply whenever a driver proceeds at a speed slower than permitted and which, under the circumstances, is not reasonably necessary for safe operation and results in impeding the normal and reasonable movement of other vehicles upon the highway. When, in accordance with a party's claim or defense, sufficient evidence is introduced to support a finding that the statute was violated, it should be included in the charge to the jury — usually with such qualifying or cautionary instructions as the circumstances may require.</block_quote>

<bold>Pleadings — complaint alleging damages caused by garnishment</bold> <bold>— sufficiency</bold>. <block_quote> A complaint alleging that defendant by garnishment proceedings ancillary to a prior action against plaintiff on a promissory note had caused cancellation of certain contracts and consequent loss of profits to plaintiff, and that such garnishment proceedings had been instituted maliciously and wrongfully, did not state facts sufficient to constitute a cause of action. Where plaintiff had never attempted to obtain discharge of the garnishment proceedings pursuant to Minn. St. <cross_reference>571.55</cross_reference>, he was estopped from asserting the claims set forth in the complaint.</block_quote>

<bold>Hospitals — care required — extent of duty</bold>. <block_quote> Where a hospital patient suffered injury by falling from a portable commode after he was placed thereon and left unattended, question whether precautions taken by the hospital under particular combination of circumstances shown constituted negligence was for the jury.</block_quote>

<bold>Criminal law — evidence — admissibility — proof of similar</bold> <bold>offense</bold>. <block_quote> 1. The oral admission of a defendant charged with a robbery occurring April 27, 1959, to the effect that he had robbed the same place the preceding January 14 is held admissible where testimony subsequently received established a similar pattern of operation on the two occasions.</block_quote> <bold>Same — trial — cross-examination of alibi witness —</bold> <bold>propriety — effect</bold>. <block_quote> 2. Cross-examination of an alibi witness developing the fact that she had appeared in this role in another criminal case involving a different defendant was of doubtful propriety, but not prejudicial error under the circumstances of this case.</block_quote> <bold>Same — sequestration of witnesses — failure to sequester —</bold> <bold>effect</bold>. <block_quote> 3. While sequestration of witnesses in a criminal case should generally be ordered upon request, the matter is discretionary with the trial court and failure to sequester did not create reversible error in this case.</block_quote>

<bold>Workmen's compensation — death of injured employee — rights</bold> <bold>of dependents to compensation</bold>. <block_quote> 1. Where an employee suffers a compensable injury and death follows as a natural consequence of the injury, employee's dependents are entitled to recover as provided by Minn. St. <cross_reference>176.101</cross_reference>, subd. 6.</block_quote> <bold>Same — proceedings — review — scope of review</bold>. <block_quote> 2. On appeal to this court, we review the decision of the Industrial Commission, not that of the referee.</block_quote> <bold>Same — death of injured employee — cause — burden of proof</bold>. <block_quote> 3. The burden rests on petitioner to prove by a fair preponderance of the evidence the causal connection between a compensable injury and the subsequent death.</block_quote> <bold>Same — same — same</bold>. <block_quote> 4. Determination of the cause of death of an alleged injured employee presents a question of fact.</block_quote><page_number>Page 207</page_number> <bold>Evidence — opposing inferences drawn from same evidence —</bold> <bold>effect</bold>. <block_quote> 5. Where two opposing inferences can be drawn with equal justification from the same circumstantial evidence, it cannot be said that one preponderates over the other, in which event the party having the burden of proof must lose.</block_quote> <bold>Appeal and error — review — evidence justifying different</bold> <bold>inferences — effect</bold>. <block_quote> 6. If different inferences can justifiably be drawn from the evidence in the case, the inference drawn by the factfinder will not be disturbed on appeal.</block_quote> <bold>Workmen's compensation — proceedings — review — basis for</bold> <bold>findings</bold>. <block_quote> 7. Findings of the Industrial Commission must be based on inferences that can reasonably be drawn from competent evidence.</block_quote> <bold>Same — death of injured employee — cause</bold>. <block_quote> 8. At the best, the evidence in this case does not compel an inference that employee's death was a natural consequence of his precedent compensable injury.</block_quote>

<bold>Criminal law — withdrawal by participant in plan to commit</bold> <bold>crime — effect</bold>. <block_quote> 1. A person who is originally a participant in a scheme or plan to commit a crime may withdraw before the actual commission of the crime and thereby be absolved of criminal responsibility if the crime is consummated by confederates.</block_quote> <bold>Same — trial — evidence of defendant's character —</bold> <bold>admissibility</bold>. <block_quote> 2. The character of a defendant in a criminal prosecution may not be attacked by the prosecution until the defendant puts it in issue. The state may not impugn the character of defendant by insinuations and innuendoes which plant in the minds of the jury a prejudicial belief in the existence of evidence which otherwise is inadmissible.</block_quote> <bold>Same — same — prejudicial questions and insinuations —</bold> <bold>effect</bold>. <block_quote> 3. Asking questions which by innuendo leave a prejudicial supposition as to the existence of facts which cannot be proved may require a new trial even though objection to the question is sustained.</block_quote> <bold>Same — same — evidence admissible to impeach testimony of</bold> <bold>accused</bold>. <block_quote> 4. When a defendant takes the witness stand, the credibility of his testimony may be tested by showing that he had previously been convicted of a felony. The state may not show that he has been arrested, since an arrest is not a conviction.</block_quote><page_number>Page 295</page_number> <bold>Same — same — conduct of prosecuting attorney — prejudicial</bold> <bold>questions and insinuations — effect</bold>. <block_quote> 5. The good faith of the prosecutor in asking improper prejudicial questions does not affect the propriety of asking them.</block_quote> <bold>Same — evidence of withdrawal from plan before commission of</bold> <bold>crime — effect</bold>. <block_quote> 6. Where defendant was a participant in a scheme or plan to defraud by uttering forged drafts, it need not be shown that she actually participated in the overt act of cashing them, but, when she has adduced evidence of a withdrawal before actual commission of the crime, the state must assume the burden of proving that she remained an accomplice while the crime was consummated.</block_quote> <bold>Same — same — contrary testimony by accomplice — need of</bold> <bold>corroboration</bold>. <block_quote> 7. If a defendant introduces evidence which raises a reasonable doubt as to her withdrawal, the testimony of an accomplice that she did not withdraw must be corroborated.</block_quote>

<bold>Trial — right to jury trial — origin</bold>. <block_quote> 1. The right to a jury trial is derived from Minn. Const. art. <cross_reference>1</cross_reference>, § <cross_reference>4</cross_reference>, which preserves unimpaired the right to a jury trial as it existed by the laws of the territory at the time our state constitution was adopted.</block_quote> <bold>Appeal and error — reversible error — denial of jury trial</bold>. <block_quote> 2. Where a constitutional right to a jury trial exists, denial of the right is reversible error.</block_quote> <bold>Trial — right to jury trial — determination</bold>. <block_quote> 3. The nature and character of the controversy as determined from all the pleadings determine the right to a jury trial.</block_quote> <bold>Same — same — action requiring accounting</bold>. <block_quote> 4. A suit on a contract for the recovery of money is a legal action triable to the jury even though an accounting may incidentally be necessary to a final determination of the action.</block_quote> <bold>Same — same</bold>. <block_quote> 5. This action, which is an action to recover commissions alleged to be due under a contract, is a legal action triable to a jury.</block_quote>

<bold>Attorney and client — disbarment proceedings — conviction of</bold> <bold>crime</bold>.

<bold>Attorney and client — disbarment proceedings — conviction of</bold> <bold>felony</bold>.

<bold>Appeal and error — when appeal can be taken — in criminal</bold> <bold>cases</bold>.