Volume 268 — Minnesota Reports

<bold>Judgments — res judicata — estoppel by verdict — when</bold> <bold>applicable</bold>. <block_quote> It is error to apply the rule of estoppel by verdict to prevent relitigation of issues that are claimed to have been previously adjudicated when it appears that such issues were not in fact presented and determined in a former trial.</block_quote>

<bold>Appeal and error — law of case — instructions</bold>. <block_quote> 1. A charge to which the prevailing party has taken no exception becomes the law of the case and may not for the first time be challenged on appeal.</block_quote> <bold>Landlord and tenant — unsafe condition on premises —</bold> <bold>liability of landlord to patrons of tenants</bold>. <block_quote> 2. In an action for personal injuries against a landlord based on the negligent design and construction of a cold-air register in a dance floor, and against the tenants for its negligent maintenance, the landlord was entitled to an instruction that his liability was contingent on whether or not he had reason to expect the lessee to admit patrons without first putting the premises in a reasonably safe condition. Under such circumstances it was error not to submit forms of verdict which would permit the jury to determine the landlord's liability independently of the tenants'.</block_quote> <bold>Negligence — claimed negligent construction and maintenance of</bold> <bold>register — evidence of similar accident — admissibility</bold>. <block_quote> 3. In an action for personal injuries resulting from the negligent construction and maintenance of a cold-air register in a dance floor, it was proper to receive in evidence testimony of a similar previous incident involving the same instrumentality.</block_quote>

<bold>Trial — view by jury — extent — propriety</bold>. <block_quote> 1. Where upon plaintiff's motion court directed view of stairways involved in action; where one of defenses was that plaintiff could have used a front inside stairway as an alternate and less dangerous route and therefore assumed risk of falling on icy outside stairway which he had used in making milk delivery; where case was submitted to jury without objections on issue raised by this defense; where prior to view court had instructed jury in presence of plaintiff's counsel that it was to view both stairways; where plaintiff at no time made any objection to this procedure until his motion for new trial; and where at view court at no time had restricted jury in its view of either of such stairways, <italic>held</italic> no error in procedure described.</block_quote> <bold>Same — instructions — cautionary instructions — effect</bold>. <block_quote> 2. Where objections and exceptions taken to instructions of court prior to jury's retirement were based on ground that such instructions in a number of particulars overemphasized defenses of contributory negligence and assumption of risk and plaintiff's burden of establishing defendant's negligence; where court thereupon endeavored to correct them by cautioning jury that both sides of case should receive full and careful consideration without overemphasis of any particular phase of case, and plaintiff's counsel then manifested to court that he had no further requests; and where jury later returned for further instructions on issue of contributory negligence, which court, after consultation with plaintiff's counsel and in accord with his specific request, then gave; and where court then cautioned jury again not to place overemphasis on issue of contributory negligence because of such additional instructions, <italic>held</italic> such procedure did not constitute reversible error.</block_quote>

<bold>Pleading — defenses not involved in trial — denial of motion</bold> <bold>to strike — effect</bold>. <block_quote> 1. Where defenses to action on contracts for settlement of a prior cause of action were to effect that no such contracts had been made during lifetime of plaintiff in such prior action; and further that if any such contracts of settlement had been made they had been procured by fraud on the part of plaintiff or his agents, or as a result of mutual or unilateral mistake, or that the person entering into such contract on behalf of plaintiff lacked capacity to so contract; but where these affirmative defenses were not involved in the actual trial of the case and were not submitted or communicated to the jury; and where court instructed jury that any evidence bearing on issue of fraud was not to be considered by it, <italic>held</italic> court's denial of motion to strike such allegations from answer was not prejudicial error.</block_quote> <bold>Evidence — admissibility — letters</bold>. <block_quote> 2. Certain exhibits considered and found to have been irrelevant to issues in action and hence to have been properly rejected when offered in evidence by plaintiff.</block_quote> <bold>Same — same — conversations with deceased person</bold>. <block_quote> 3. Testimony offered by plaintiff and rejected by court to establish that in certain conversations between parents of plaintiff in prior action and his counsel, which were not in presence of defendant, such counsel had communicated to parents an offer of settlement in such action made by defendant; and to establish that parents later had talked to plaintiff and had been advised by him that he accepted such offer and to so advise his counsel, and none of which statements were communicated to defendant prior to death of plaintiff, <italic>held</italic> properly excluded under Minn. St. <cross_reference>595.04</cross_reference> (referred to as Dead Man's Statute), since parents had direct and beneficial interest in outcome of litigation as heirs at law of plaintiff therein.</block_quote><page_number>Page 242</page_number> <bold>Trial — misconduct of counsel — improper argument — effect</bold>. <block_quote> 4. Where at trial plaintiff's counsel made no objections and took no exceptions to statements made by opposing counsel in his argument to jury that present actions were an attempt to perpetrate a fraud on the defendant; where no reference to such argument and no claim of misconduct was made in plaintiff's motion for new trial; and where atmosphere during trial was such as to engender such remarks, <italic>held</italic> such remarks did not constitute misconduct so flagrant and reprehensible as to require court upon its own motion to act thereon or to require reversal here.</block_quote> <bold>Settlement — making of contract — evidence</bold>. <block_quote> 5. Where undisputed evidence established that before consummation of alleged contract for settlement made by attorney on behalf of his client latter had died so as to revoke authority vested in attorney to act on behalf of client, <italic>held</italic> in action by administratrix of deceased client on such settlement contract court properly denied motion of plaintiff therein for directed verdict based on ground that evidence established as a matter of law that such contract had been made.</block_quote> <bold>Appeal and error — failure to argue assigned errors — waiver</bold>. 6. Errors not argued on appeal will be deemed waived.

<bold>Trial — summary judgment — when granted</bold>. <block_quote> Complaint which, construed in the light most favorable to the plaintiff, sets out facts from which it can be inferred that the plaintiff paid money to one of the defendants upon demand of a sheriff to whom a writ of execution based on a void judgment was issued by a justice of the peace, also named as a defendant, states a cause of action against both and dismissal in response to a motion by each defendant for summary judgment is reversed.</block_quote>

<bold>Workmen's compensation — proceedings — vacating award —</bold> <bold>discretion of commission</bold>. <block_quote> 1. The granting of a petition to set aside an award and grant a new hearing under Minn. St. <cross_reference>176.461</cross_reference> rests in the sound discretion of the Industrial Commission, and the commission's decision is final unless it can be said that there is an abuse of discretion.</block_quote> <bold>Same — same — same — when justified</bold>. <block_quote> 2. "Cause" sufficient to justify the vacation of an award means some such cause as fraud or surprise or some factor involving the disability or death of an employee unknown at the original determination that would lead to a conclusion that the original award was incorrect.</block_quote><page_number>Page 337</page_number> <bold>Same — same — same — conflict in medical evidence</bold>. <block_quote> 3. Where the medical evidence submitted in support of a petition to vacate an award is disputed, it is for the commission to resolve the same as upon an original hearing.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 4. Where the medical evidence is in dispute as to whether the disability of an injured employee is due to an injury received in the scope of his employment or to a degenerative disease, it is for the commission to resolve the dispute. In this case the evidence supports the commission's findings that petitioner's present disability is due to disease and not to his alleged injury.</block_quote>

<bold>Workmen's compensation — payments for disability sustained</bold> <bold>because of preexisting physical impairment — recourse to</bold> <bold>special compensation fund</bold>. <block_quote> The employer of a fireman who sustained a coronary occlusion with resultant anterior myocardial infarction on June 4, 1957, has recourse to the special compensation fund in accordance with Minn. St. <cross_reference>176.13</cross_reference>, when, about 2 years later, permanent total disability followed a work-connected coronary occlusion and posterior myocardial infarction, in light of testimony of the attending physician reasonably supporting the Industrial Commission's finding that, but for the preexisting physical impairment, the permanent total disability would not have been sustained.</block_quote><page_number>Page 413</page_number>

<bold>Evidence — admissibility — prior unsworn statements denied by</bold> <bold>witness under oath</bold>. <block_quote> 1. Where complaining witness in criminal proceedings withdraws unsworn accusations previously made against defendant, and under oath denies the truth thereof, prior unsworn statements would not be admissible as substantive evidence on issue of defendant's guilt.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. Cases cited in support of contention that foregoing rule should not be followed considered and found generally to relate to situations involving prior inconsistent statements made under oath, the truth of which was <italic>reaffirmed</italic> by witness presently testifying.</block_quote> <bold>Criminal law — conviction — sufficiency of evidence</bold>. <block_quote> 3. In absence of competent evidence to support jury's verdict of guilty, judgment is reversed and case remanded with directions to release defendant from custody.</block_quote>

<bold>Descent and distribution — ownership of property inherited by</bold> <bold>enemy nationals — seizure under Federal statutes — effect</bold>. <block_quote> 1. Where certain provisions of the Trading with the Enemy Act, <cross_reference>55 Stat. 839</cross_reference>, <cross_reference>50 USCA App. § 5</cross_reference>(b), and <cross_reference>40 Stat. 1020</cross_reference>, <cross_reference>50 USCA App. § 7</cross_reference>(c), were in effect on date of decedent's death; where at that time his surviving heirs were nationals of Germany with whom the United States was at war; and where assets in decedent's estate consisted entirely of personal property, <italic>held</italic> title thereto vested in heirs as of date of decedent's death, so that in consequence such property immediately became subject to vesting in the Attorney General of the United States pursuant to Trading with the Enemy Act, notwithstanding that administrator of decedent's estate held qualified title thereto for purpose of paying debts against estate and expenses of administration. Decree of distribution in estate made subsequent to seizure of property by the Attorney General and subsequent to termination of war with Germany would not divest title of Attorney General to such property.</block_quote> <bold>Same — vesting of property in heirs — effect of decree of</bold> <bold>distribution</bold>. <block_quote> 2. Under laws of descent and distribution, probate court's decree of distribution of property to heirs entitled thereto does not constitute source of their ownership of such property. While such a decree determines identity of heirs and also that obligations against the estate have been paid so that heirs may have full possession of property, actual ownership of property becomes vested in heirs as of date of death of the one from whom they inherited it. In re Trusteeship under Will of Schmidt, <cross_reference>256 Minn. 64</cross_reference>, <cross_reference>97 N.W.2d 441</cross_reference>, distinguished.</block_quote> <bold>Same — ownership of property inherited by enemy nationals —</bold> <bold>seizure under Federal statutes — effect</bold>. <block_quote> 3. Where joint resolution of Congress, dated October 19, 1951, <cross_reference>65 Stat. 451</cross_reference>, <cross_reference>50</cross_reference> USCA App. p. XX, terminating war with Germany,<page_number>Page 439</page_number> expressly provided that property which prior to January 1, 1947, was subject to vesting or seizure under Trading with the Enemy Act would continue to be subject thereto, <italic>held</italic> such resolution did not alter status of or affect title to personal property which became subject to vesting and seizure on November 5, 1942, and which was seized on June 14, 1949, by the Attorney General of the United States and thereby became vested in him under the Trading with the Enemy Act. Likewise, where provisions of Treaty of Friendship, Commerce and Navigation entered into between the United States and the Federal Republic of Germany in October 1954, 7 U.S. Treaties 1840, Article V, §§ 1, 2, and 4, and Article IX, §§ 2, 3, and 4, were not made retroactive as to property previously seized by Attorney General of the United States under Trading with the Enemy Act, such property remained vested in latter.</block_quote>

<bold>Railroad and Warehouse Commission — power to require</bold> <bold>construction and joint use of side tracks —</bold> <bold>constitutionality of statute</bold>. <block_quote> 1. Under Minn. St. <cross_reference>218.041</cross_reference>, the Railroad and Warehouse Commission has power to order extension of railroad services and facilities, and joint use of industrial side tracks wholly within the state, where security and convenience of public is thereby promoted. Thereunder, it may require a carrier to construct side tracks to an industry; "prescribe the terms therefor"; and subsequently direct joint use thereof by two carriers with such division of costs as may be agreed to between them.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2-3. Statute (§ <cross_reference>218.041</cross_reference>) which authorizes commission to direct that two carriers have joint use of industrial side track owned by one of them, with cost of construction and maintenance thereof to be shared by such carriers, <italic>held</italic> not to constitute delegation of authority to commission in violation of due process clauses of State or Federal Constitutions.</block_quote> <bold>Railroads — contract for exclusive service — legality</bold>. <block_quote> 4. Contract under which railroad limits the performance of its obligations to public without consent of state would be violative of its charter and in contravention of public policy. Accordingly, Railroad and Warehouse Commission may direct two carriers to jointly serve an industry over side track of one of them, where public interest would be promoted thereby, notwithstanding that such carriers had agreed that only one of them would have right to serve such industry.</block_quote> <bold>Railroad and Warehouse Commission — power to order</bold> <bold>construction and joint use of side tracks — effect of</bold> <bold>Federal regulation</bold>. <block_quote> 5. 49 USCA, §§ 1(9, 18, and 22) and 3(5), considered and held not to deprive Railroad and Warehouse Commission of its power to<page_number>Page 501</page_number> order construction of industrial side tracks wholly within state; or to direct joint use thereof by two carriers, where public interests would be promoted thereby and costs of construction and maintenance of such tracks would be divided between them.</block_quote>

<bold>Automobiles — negligence of driver — cyclist passing —</bold> <bold>application of statute</bold>. <block_quote> 1. Minn. St. <cross_reference>169.18</cross_reference>, subd. 4(d), governing passing on the right, has no application where the operator of a motorcycle proceeds into an intersection ahead of another vehicle as a result of the latter's unexpected stop to avoid colliding with a third vehicle.</block_quote> <bold>Trial — instructions — erroneous instruction — effect</bold>. <block_quote> 2. It is not prejudicial error to instruct a jury that a violation of a common-law duty is negligence per se where the record discloses that such breach of duty was not a decisive issue in the case.</block_quote>

<bold>Public employee — review — proceedings to discharge municipal</bold> <bold>employee</bold>. <block_quote> A certiorari review of proceedings conducted before a board vested with authority to discharge a municipal employee protected against arbitrary dismissal by Minn. St. <cross_reference>197.46</cross_reference> and an established civil service system is governed by rules applicable to judicial review of an administrative function. <italic>Held</italic>, that the proceedings resulting in relator's discharge were initiated upon a proper notice, that he was afforded a fair hearing, and that the findings upon which his discharge was based were supported by substantial evidence upon the record considered as a whole.</block_quote>