Mahowald v. Thompson-Starrett Co.

• Decision Date: 06 October 1916
• Docket Number: No. 19886 [245].,19886 [245].
• Citation: 159 N.W. 565,134 Minn. 113
• Parties: MAHOWALD v. THOMPSON-STARRETT CO. et al.
• Court: Minnesota Supreme Court

134 Minn. 113

159 N.W. 565

MAHOWALD

v.THOMPSON-STARRETT CO. et al.

No. 19886 [245].

Supreme Court of Minnesota.

Oct. 6, 1916.

On petition for rehearing.Rehearing denied.Former opinion affirmed.

For former opinion, see158 N. W. 913.

PER CURIAM.

The petition for rehearing asserts that this court misunderstood the position taken by the parties at the trial and on appeal.We think not.The trial court did not submit the defense pleaded that, if the death of plaintiff's intestate was caused by respondent's negligence, recovery was to be under the Workmen's Compensation Act(Gen. St. 1913, c. 84a).Hence, if the evidence raised disputed issues of fact upon that defense, the court was clearly right in granting a new trial.We, therefore, think that plaintiff, in order to ask a reversal of the order, must take the position that the record contains no evidence from which a finding could be made that the accident which caused Mahowald's death arose out of and in the course of his employment.The only assignment of error at all debatable on this appeal is based on that proposition.And, on the other hand, respondent, by the motion to dismiss at the close of the testimony and in the motion for a new trial, specifically requested the court to rule, as a matter of law, that the death of Mahowald was caused by an accident arising out of and in the course of his employment.The trial court in granting a new trial so held.This ruling was approved in the opinion filed...