Volume 306 — Minnesota Reports

<bold>Libel and slander — qualifiedly privileged communications —</bold> <bold>effect</bold>. <block_quote> 1. In an action for slander, it is held that communications between an employer's agents made in the course of investigating employee misconduct are qualifiedly privileged and that, in order to recover claimed damages, the person with respect to whom such statements are made must establish that the employer acted with malice.</block_quote> <bold>Same — findings of privilege and lack of malice — sufficiency</bold> <bold>of evidence</bold>. <block_quote> 2. <italic>Held</italic>, that jury findings that utterances claimed to be slanderous were made under circumstances which entitled defendant to qualified privilege and that defendant's employees did not act with malice were sustained by the evidence as a matter of law.</block_quote><page_number>Page 94</page_number>

<bold>New trial — grounds — misconduct of jury — failure to</bold> <bold>conduct inquiry into misconduct</bold>.

<bold>Criminal law — trial — communication by judge to jury during</bold> <bold>deliberations — when reversible error</bold>. <block_quote> In a criminal case, any communication relating to the case occurring during the trial judge's uninvited entry into the jury room during deliberations and in the absence of defendant and counsel constitutes reversible error.</block_quote>

<bold>Criminal law — trial — competence of witness — admissibility</bold> <bold>of evidence</bold>.

<bold>Physicians and surgeons — malpractice — proof of negligence</bold> <bold>— showing required</bold>. <block_quote> 1. In order to prove that a doctor is negligent, the burden is upon plaintiff to offer expert testimony (1) establishing the standard of care recognized by the medical community; and (2) showing that the defendant doctor in fact departed from that standard.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. On this record, plaintiff has failed to establish the standards in the medical community for diagnosis of malignant melanoma<page_number>Page 255</page_number> by pathologists or that defendant pathologist departed from those standards.</block_quote>

<bold>Criminal law — acceptance of guilty plea — basis required —</bold> <bold>voluntary, understanding entry</bold>.

<bold>Limitation of actions — contract claim against state —</bold> <bold>failure to comply with statute of limitations</bold>. <block_quote> 1. Where the record establishes that all original contract work and further work on minor deficiencies was completed by some 16 months prior to commencement of plaintiff's suit, plaintiff did not commence its action on a contract claim against the state within 6 months after contract work was completed within the meaning of Minn. St. <cross_reference>3.751</cross_reference>, subd. 2.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. Under the facts in this case, a letter from the commissioner of administration to plaintiff informing it of an amount of money to be permanently withheld from the contract price as liquidated damages was a "final estimate," and plaintiff's action on its contract claim against the state, not having been commenced within 90 days after it had been furnished a final estimate by the state, could not be maintained. Minn. St. <cross_reference>3.751</cross_reference>, subd. 2.</block_quote><page_number>Page 286</page_number>

<bold>Indemnity — indemnity claim by purchaser against seller of</bold> <bold>defective product — disallowance of attorneys fees —</bold> <bold>propriety</bold>. <block_quote> 1. Where plaintiff claims a breach of identical express warranties by both purchaser and seller, the court may properly disallow attorneys fees in an indemnity action between the purchaser and seller on the basis that the purchaser was defending against a claim involving its own breach of express warranty and not solely that of the seller.</block_quote> <bold>Same — claim against seller for attorneys fees incurred by</bold> <bold>purchaser in defense of suit for breach of warranty — scope</bold> <bold>of contract</bold>. <block_quote> 2. Where plaintiff claims a breach of express warranty by the purchaser and an indemnity contract between the seller and the purchaser makes no reference to indemnification for breach of express warranty but only as to negligence, the contract cannot be found to include indemnity for attorneys fees resulting from purchaser's own act of giving an express warranty to a buyer.</block_quote> <bold>Same — same — same — common law as basis for recovery</bold>. <block_quote> 3. Where a purchaser fails to tender defense to codefendant seller and insists on handling its own defense, thereby giving the seller no opportunity to control the litigation, purchaser is not entitled to attorneys fees and expenses either under common-law or contractual indemnity.</block_quote>

<bold>Lis pendens — action for amounts due on contracts for sale of</bold> <bold>land — cancellation of notice of lis pendens — propriety</bold>. <block_quote> Where plaintiff's complaint does not set forth a specific claim for the unpaid portion of a fixed and certain purchase price for realty, the cause of action does not involve a common-law vendor's lien and therefore cannot provide the basis for the filing of a notice of lis pendens.</block_quote>

<bold>Negligence — action for injuries from fall in shopping center</bold> <bold>parking lot — negligence of parties — assumption of risk</bold>. <block_quote> Where plaintiff, a business visitor injured in a fall, knew that a certain area of a shopping center parking lot was icy but was unaware of a thin coating of water covering the ice caused by the automobile exhaust of cars waiting for grocery pickup, it was for the jury to consider whether the owner maintained the premises in a reasonably safe condition, or contributed to plaintiff's injuries.</block_quote>

<bold>Mechanics lien — foreclosure action — findings on validity of</bold> <bold>lien and right of recovery — sufficiency of evidence</bold>.

<bold>Husband and wife — action against former wife for repayment of</bold> <bold>money paid on her note — offset of amount used for</bold> <bold>necessities — sufficiency of evidence</bold>.

<bold>Criminal law — trial — identification of defendant —</bold> <bold>propriety of pretrial procedure</bold>.