Volume 305 — Minnesota Reports

<bold>Workmen's compensation — successive injuries — reimbursement</bold> <bold>of employer from special compensation fund for compensation</bold> <bold>paid employee with preexisting disability</bold>. <block_quote> 1. Where an employee sustains two successive injuries in the course of his employment with two successive employers, the second of which results in a disability which would not have occurred except for a preexisting physical impairment resulting from the first, the employer liable for benefits for the last injury is entitled to reimbursement from the second-injury special fund pursuant to Minn. St. 1971, § <cross_reference>176.131</cross_reference>, and as construed by Koski<page_number>Page 7</page_number> v. Erie Mining Co. <cross_reference>300 Minn. 1</cross_reference>, <cross_reference>223 N.W.2d 470</cross_reference> (1973), apportionment from the first employer is precluded.</block_quote> <bold>Same — compensation award — dispute between employers as to</bold> <bold>liability — award of attorneys fees to employee</bold>. <block_quote> 2. Where the occurrence of a work-related injury and the amount of compensation benefits due an employee are not in dispute but litigation results because of a dispute as to which of two employers-insurers is liable for payment, Minn. St. <cross_reference>176.191</cross_reference> authorizes the commission in its discretion to assess reasonable attorneys fees against the employer-insurer held liable and in favor of the employee for services rendered in protecting the employee's right to and the amount of benefits payable.</block_quote> <bold>Same — same — same — same — remand</bold>. <block_quote> 3. The record concerning the basis for and the amount of assessment of attorneys fees being inadequate for a proper review of the commission's assessment in this case, the matter is remanded for reconsideration by the commission.</block_quote>

<bold>Workmen's compensation — successive injuries — apportionment</bold> <bold>of liability between employers — effect of subsequent</bold> <bold>judicial interpretation of statute</bold>.

<bold>Mortgages — mortgagee in possession — right to possession and</bold> <bold>rents — effect of foreclosure</bold>. <block_quote> 1. The rights of a mortgagee, under a mortgage and a contemporaneous assignment of lease, to possession of the real estate and collection of rents and profits terminate upon a foreclosure sale for the full amount of the indebtedness. Minn. St. <cross_reference>559.17</cross_reference> does not authorize possession and control of the rents and profits during the period between the foreclosure sale for the full amount of the indebtedness and the expiration of the period of redemption.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. A "mortgagee in possession" is not given, under the facts presented, any additional rights to continue in possession after extinguishment of the outstanding mortgage.</block_quote>

<bold>Trial — withholding exhibits from jury — propriety</bold>. <block_quote> 1. Where soil samples are admitted into evidence for the limited purpose of assisting expert witnesses explain their testimony regarding the effect of an oil spill upon the soil, it is not prejudicial error for the trial court, in an exercise of its discretion, to refuse defendant's request for submission of the samples to the jury for its independent examination.</block_quote> <bold>New trial — grounds — misconduct of counsel</bold>. <block_quote> 2. No prejudice resulted from the remarks of plaintiff's counsel so as to mandate a new trial.</block_quote> <bold>Witnesses — expert witnesses — qualifications — lay persons</bold> <bold>with occupational experience</bold>. <block_quote> 3. Lay persons with vast knowledge in the fields of horticulture and the nursery business gained by extensive occupational experience may qualify as expert witnesses in those areas.</block_quote>

<bold>Negligence — instruction imposing on defendant duties of</bold> <bold>possessor of land — inspection required</bold>. <block_quote> 1(a). In a cause of action arising prior to our decision in Peterson v. Balach, <cross_reference>294 Minn. 161</cross_reference>, <cross_reference>199 N.W.2d 639</cross_reference> (1972), the trial court did not err in instructing the jury that defendant church<page_number>Page 289</page_number> owed to plaintiff the duties of a possessor of land with respect to the land on which plaintiff was injured. The evidence showed that the church had planned the snowmobile party at which plaintiff was injured, had invited the people who brought snowmobiles, had received permission from the owner to use the land for the party, had assumed the duty of inspecting the land to determine if it was free from hazards which would cause danger to those involved in snowmobiling, and had assured those involved that the party would be supervised and chaperoned by the church.</block_quote> <block_quote> (b) The trial court correctly instructed the jury that one who undertakes to make an inspection of land for conditions which may be dangerous assumes the duty of making an adequate inspection and discovering those conditions which are discoverable by such reasonable inspection.</block_quote> <bold>New trial — grounds — reference to liability insurance</bold>. <block_quote> 2. Defendant church is not entitled to a new trial on the grounds that its pastor, on two different occasions during cross-examination, had voluntarily testified that the church carried liability insurance.</block_quote>

<bold>Evidence — admissibility — party's testimony about</bold> <bold>conversations among decedent, his father, and witness</bold>. <block_quote> 1. Plaintiff, who commenced this wrongful death action as trustee for the parents and next of kin of decedent, is only a nominal party; is not an interested person within the meaning of Minn. St. <cross_reference>595.04</cross_reference>, the so-called deadman's statute; and therefore is not barred from testifying concerning conversations which took place among decedent, decedent's father, and plaintiff.</block_quote> <bold>Same — same — testimony of parents about intentions to rely</bold> <bold>financially on deceased son</bold>. <block_quote> 2. Decedent's parents, for whose benefit this action is brought, are not barred from testifying concerning their expectations and intentions to rely upon their deceased son for income for 10 years and support thereafter; and the testimony of decedent's father that he had made and fulfilled a similar arrangement with his father (decedent's grandfather) is admissible into evidence.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. The contested testimony is relevant and material to the issue of pecuniary loss.</block_quote><page_number>Page 376</page_number> <bold>Same — same — same</bold>. <block_quote> 4. The contested testimony is not so speculative and conjectural as to justify its exclusion.</block_quote>

<bold>Evidence — admissibility — blood sample taken from deceased</bold> <bold>driver — sufficiency of foundation</bold>.

<bold>Schools and school districts — tenured teachers' refusal to</bold> <bold>teach on holiday — contractual obligation</bold>. <block_quote> In plaintiffs' action for injunctive and other relief against defendant school district and school board members, <italic>held</italic>:</block_quote> <block_quote> 1. Plaintiffs, teachers employed by defendant school district, were contractually obligated to perform their teaching duties on Columbus Day, October 9, 1972, for defendant school board pursuant to Minn. St. <cross_reference>126.13</cross_reference> lawfully determined to conduct school on that holiday, and all plaintiffs except plaintiff Fedeler held continuing contracts pursuant to § <cross_reference>125.12</cross_reference>, subd. 4, and, in accordance with a specific clause inserted in such contracts, agreed to teach on holidays designated as school days by the board.</block_quote><page_number>Page 465</page_number> <bold>Same — probationary teacher's refusal to teach on holiday —</bold> <bold>contractual obligation</bold>. <block_quote> 2. Plaintiff Fedeler, although a probationary teacher under § <cross_reference>125.12</cross_reference>, subd. 3, was similarly obligated on the basis of a contract implied in fact.</block_quote> <bold>Same — teachers' refusal to teach on holiday — claim for</bold> <bold>wages</bold>. <block_quote> 3. Plaintiffs, having contracted to teach on Columbus Day, upon their failure to do so are contractually not entitled to be paid wages for the day they refused to teach.</block_quote> <bold>Same — nonrenewal of probationary teacher's contract —</bold> <bold>propriety</bold>. <block_quote> 4. Since plaintiff Fedeler received proper notice and, upon her request, defendant board's reason for nonrenewal of her teaching contract in compliance with § <cross_reference>125.12</cross_reference>, subd. 3, its refusal to rehire her was justified.</block_quote> <bold>Same — teachers' refusal to teach on holiday — denial by</bold> <bold>board of salary increments — propriety</bold>. <block_quote> 5. Although upon this record defendant board's denial of scheduled salary increments to plaintiffs for the 1972-1973 school year solely as a penalty for their willful refusal to perform teaching duties on Columbus Day 1972 is justified by the board's general discretionary authority to manage the district's schools, its subsequent denial of scheduled salary increments for the 1973-1974 school year constitutes a second penalty for a single act of insubordination and is unreasonable.</block_quote>

<bold>Workmen's compensation — review — finding of causal relation</bold> <bold>between work and heart attack</bold>.

<bold>Divorce — stipulation for property settlement — power of</bold> <bold>court to set aside — sufficiency of evidence to support</bold> <bold>findings</bold>.

<bold>Criminal law — postconviction proceeding — denial of relief</bold> <bold>— propriety</bold>.

<bold>Dismissal — dismissal for want of prosecution — propriety</bold>.