Volume 291 — Minnesota Reports

<bold>Schools and school districts — failure to supervise children</bold> <bold>during recess — claimed negligence — questions</bold>. <block_quote> Where an injury to a school child results from pebbles being thrown at her for several minutes by other students during a recess on a playing field, it was proper for the court to submit to the jury the questions of whether the injury was foreseeable and, if so, whether it was proximately caused by the school's failure to provide adequate supervision.</block_quote>

<bold>Unemployment compensation — disqualification for benefits —</bold> <bold>unemployment due to strike</bold>. <block_quote> 1. The record supports the holding of the commissioner of the Department of Manpower Services that claimants were disqualified for unemployment benefits because their unemployment was due to a strike or other labor dispute in progress at the establishment at which they were employed, within the meaning of Minn. St. <cross_reference>268.09</cross_reference>, subd. 1(5).</block_quote><page_number>Page 7</page_number> <bold>Same — same — unemployment due to strike in which claimants</bold> <bold>did not participate</bold>. <block_quote> 2. The contention that the statute operates unfairly to the prejudice of nonstriking employees who did not recognize, condone, sanction, or in any way participate in the strike is one which should be addressed to the legislature.</block_quote>

<bold>Estoppel — use of subcontractor's bid in submission of prime</bold> <bold>bid for building construction — refusal of subcontractor to</bold> <bold>perform at bid price — effect</bold>. <block_quote> Promissory estoppel was properly applied to permit recovery of damages sustained by a prime contractor in constructing a building because of a subcontractor's refusal to perform a subcontract at the price it had named in a bid submitted by it to the prime contractor and on which the latter reasonably relied to its detriment by using such bid in preparing its own prime bid on the project, with which prime bid it was required to furnish a bond in the amount of 5 percent of the amount of the bid.</block_quote>

<bold>Dismissal — policy reflected in Rules of Civil Procedure</bold>. <block_quote> 1. In the absence of manifest finality or flagrant or inexcusable circumstances, courts are loath to permit substantive rights to be lost by a procedural lapse. Rule 41.01, Rules of Civil Procedure, relating to dismissal of actions, should be construed so as to reflect<page_number>Page 159</page_number> a well-considered policy to discourage technicalities and form and to permit controversies to be settled on their merits rather than to terminate actions by dismissal on technical grounds.</block_quote> <bold>Eminent domain — dismissal by condemnor — when permitted</bold>. <block_quote> 2. The provision of Rule 41.01, which permits dismissal of actions without order of court, except where a counterclaim is made or "other affirmative relief" is demanded, does not comprehend that an appeal from a commissioner's award in a condemnation proceeding is a claim for affirmative relief. The object of such an appeal is to transfer to the district court the issue of the reasonable value of the property involved in the condemnation proceedings. It does not assert a new right independent of those proceedings. Affirmative relief, as comprehended by the rule, is that for which a party might maintain an action entirely independent of the plaintiff's claim, and which he might proceed to establish and recover even if plaintiff abandoned his cause of action or failed to establish it.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. Subject to express limitations contained therein, Rule 41.01 does not prevent a condemnor in condemnation proceedings from abandoning them by ex parte dismissal before interests vest, either by occupancy, appropriation, judgment, or by operation of law, as in State, by Lord, v. Myhra G.M.C. Truck Equipment Co. Inc. <cross_reference>254 Minn. 17</cross_reference>, <cross_reference>93 N.W.2d 204</cross_reference>.</block_quote> <bold>Same — same — same</bold>. <block_quote> 4. In the absence of statutory provisions which expressly regulate the dismissal or abandonment of condemnation proceedings, and absent a situation as in State, by Lord, v. Myhra G.M.C. Truck Equipment Co. Inc. <bold>supra</bold>, where there was a failure of either party to appeal or to take some action to maintain the viability of the proceedings, the condemnor should be permitted to discontinue them at any time before the rights of the parties have become reciprocally vested by operation of law, confirmation, or judgment even though an award of the commissioners or a verdict may have been returned.</block_quote> <bold>Same — dismissal or abandonment of proceedings by condemnor —</bold> <bold>right of condemnee to recover damages</bold>. <block_quote> 5. Pursuant to Minn. St. <cross_reference>117.16</cross_reference>, a condemnee who sustains<page_number>Page 160</page_number> damages by reason of dismissal or abandonment of condemnation proceedings by the condemnor may recover reasonable costs and expenses which may result therefrom.</block_quote>

<bold>Municipal corporations — tort claim — notice requirement —</bold> <bold>incapacity exception</bold>. <block_quote> The general test for determining whether an injured person is "incapacitated by the injury" from giving written notice of tort claim against a municipality within 30 days from the time of the injury, as provided in Minn. St. <cross_reference>466.05</cross_reference>, subd. 1, is whether the injured person was himself physically unable to investigate and otherwise prepare and give legally sufficient notice of his claim, and, if so, whether he was during the same time unable to cause another to do it for him. Under the facts in this case, plaintiff was not so physically incapacitated as to come within the statutory exception.</block_quote>

<bold>Automobiles — use with owner's consent — use by friend of</bold> <bold>subpermittee</bold>. <block_quote> The owner of an automobile granted the unrestricted use of his automobile to another adult, who in turn granted restricted use of the automobile to his son. The subpermittee-son in turn permitted its use by a friend and was not present in the automobile at the time it became involved in an accident injuring a third person. <italic>Held:</italic> The automobile owner, for purposes of liability under Minn. St. <cross_reference>170.54</cross_reference>, is deemed to have consented to these uses, extending the doctrine of Granley v. Crandall, <cross_reference>288 Minn. 310</cross_reference>, <cross_reference>180 N.W.2d 190</cross_reference>.</block_quote>

<bold>Workmen's compensation — proceedings — notice of injury —</bold> <bold>when employer has "actual knowledge" of injury</bold>. <block_quote> The word "injury" as used in Minn. St. <cross_reference>176.141</cross_reference> means an injury arising out of and in the course of employment and it is so defined in § <cross_reference>176.011</cross_reference>, subd. 16. Thus, mere knowledge obtained by an employer that an employee has sustained an "injury" within 90 days of its occurrence where no written notice is given does not comply with the rule in § <cross_reference>176.141</cross_reference> that no compensation shall be allowed unless "actual knowledge" of the "injury" is obtained by employer or written notice given within 90 days, unless the information is such that a reasonable man would be put on inquiry that the injury was causally related to his employment.</block_quote>

<bold>Bonds — public contractor's bond — coverage — right of</bold> <bold>remote supplier of doors required under prime contract</bold>. <block_quote> 1. A business concern which agreed to furnish a prime contractor 1,107 doors for use in construction of a public building <italic>held</italic> to be a subcontractor, and its supplier who actually fabricated the material was therefore entitled to recover on the prime contractor's bond when the subcontractor became bankrupt.</block_quote> <bold>Same — action on public contractor's bond — issue first</bold> <bold>raised on appeal</bold>. <block_quote> 2. A prime contractor and its surety may not for the first time on appeal raise the question of whether a bond is executed pursuant to Minn. St. <cross_reference>574.26</cross_reference>, which allows attorneys' fees as part of claimant's recovery.</block_quote><page_number>Page 294</page_number>

<bold>Divorce — decree — modification of alimony and child support</bold> <bold>provisions — propriety</bold>. <block_quote> The trial court did not abuse its discretion by reducing alimony payments from $500 to $200 per month and increasing child support payments from $75 to $150 per month.</block_quote>

<bold>Criminal law — evidence — admissibility — testimony of</bold> <bold>witness discovered during illegal interrogation</bold>. <block_quote> 1. The testimony of a factual witness is admissible even though his identity is discovered as a result of disclosures made by the accused during an illegal detention and investigation. A distinction is made between discovery of evidentiary material and discovery of the identity of witnesses. Where no evidence is introduced as a result of an illegal interrogation but only the identity of a factual witness is elicited, testimony of that witness is admissible.</block_quote> <bold>Evidence — admissibility — motion pictures — experiments</bold> <bold>performed outside jury's view</bold>. <block_quote> 2. The admission of motion pictures or evidence of experiments performed outside the jury's view rests in the sound discretion of the trial court. To overturn a trial court's ruling, a clear abuse of discretion must be both alleged and proved.</block_quote> <bold>Criminal law — accusation by indictment — denial of</bold> <bold>preliminary hearing — constitutionality</bold>. <block_quote> 3. When the accusation of a criminal offense is by indictment, a preliminary hearing is not required, nor does a denial thereof<page_number>Page 408</page_number> constitute a violation of due process and equal protection guarantees of either the United States or Minnesota Constitutions.</block_quote> <bold>Evidence — impeachment of defendant — proof of prior</bold> <bold>convictions</bold>. <block_quote> 4. A prosecutor has the right to introduce evidence of the defendant's prior convictions to impeach his credibility if he takes the stand to testify in his own behalf. The prosecutor has the right to cross-examine the defendant concerning the fact of conviction, the nature of the offense, and the identity of the defendant for the purpose of affecting the weight of his testimony. On appeal one cannot obtain review of an advisory opinion of the trial court.</block_quote> <bold>Trial — error in admission of evidence — cure — effect of</bold> <bold>exceptionally prejudicial evidence</bold>. <block_quote> 5. Any error which may occur by reason of the erroneous admission of evidence is cured when that evidence is stricken from the record and is accompanied by a clear instruction to disregard so that the evidence is not put to use by the jury. If, however, the evidence is of such an exceptionally prejudicial character that its withdrawal from the jury cannot remove the harmful effects caused by its admission, a new trial should be granted.</block_quote> <bold>Criminal law — trial — use of depositions — restrictions</bold>. <block_quote> 6. It is within the trial court's discretion to allow depositions to be taken in criminal cases. It is also within the trial court's discretion to determine the manner and extent to which expert testimony may be used to impeach prior expert testimony. Out-of-court deponents are subjected to the same testimonial restrictions as the in-court witnesses.</block_quote>

<bold>Highway traffic regulation — license revocation proceedings —</bold> <bold>nature — effect of agreement by county attorney to dismiss</bold>. <block_quote> A hearing pursuant to Minn. St. <cross_reference>169.123</cross_reference>, subd. 6 (revocation of driver's license pursuant to so-called "implied-consent" law), is civil rather than criminal in nature. Under the statute such proceedings are to be brought by the commissioner of public safety, who is represented by the attorney general of the State of Minnesota. Without express authorization, the county attorney does not have the authority to act in behalf of the commissioner of public safety in such proceedings, and any agreement by the county attorney to waive or dismiss such proceedings is without force or effect.</block_quote>

<bold>Libel — action by grand jurors — necessity of proof of</bold> <bold>"actual malice."</bold> <block_quote> 1. Grand jurors are "public officials" or "public figures" and, therefore, fall within the rule of New York Times Co. v. Sullivan, <cross_reference>376 U.S. 254</cross_reference>, <cross_reference>84 S.Ct. 710</cross_reference>, <cross_reference>11 L. ed. 2d 686</cross_reference>, 95 A.L.R. 2d 1412 (1964), which conditions recovery in a state libel action by such individuals upon proof of "actual malice," i. e., knowledge that the statement was false or reckless disregard of whether or not it was false.</block_quote> <bold>Same — same — publication of material of "public concern" —</bold> <bold>necessity of proof of "actual malice."</bold> <block_quote> 2. An editorial relating the official activities or lack of activity of a grand jury is a matter of "public or general concern" within the rule of Rosenbloom v. Metromedia, Inc. <cross_reference>403 U.S. 29</cross_reference>, <cross_reference>91 S.Ct. 1811</cross_reference>, <cross_reference>29 L. ed. 2d 296</cross_reference> (1971), which requires proof of "actual malice" in order to recover damages in a state libel action involving the publication of material of "public concern."</block_quote> <bold>Same — actual malice predicated upon "reckless disregard" of</bold> <bold>truth — showing required</bold>. <block_quote> 3. If "actual malice" in a state libel action is predicated upon "reckless disregard" of the truth of the material, it must be shown that the publication was made with a high degree of awareness of its probable falsity. The trial court, on the record in this case, was justified in finding that the statements made by defendant in the editorial upon which the libel actions were based were made without "actual malice."</block_quote>

<bold>Forum non conveniens — action by nonresident against</bold> <bold>nonresidents — refusal to exercise jurisdiction</bold>.

<bold>Criminal law — sentence — compliance with plea agreement</bold>.

<bold>Criminal law — guilty plea entered pursuant to plea bargain —</bold> <bold>right to withdraw plea when court rejects bargain</bold>.

<bold>Criminal law — acceptance of guilty plea — propriety</bold>.