Rasmussen v. George Benz & Sons
| Decision Date | 30 July 1926 |
| Docket Number | 25,374 |
| Citation | 210 N.W. 75,168 Minn. 319 |
| Parties | JOSEPHINE F. RASMUSSEN v. GEORGE BENZ & SONS |
| Court | Minnesota Supreme Court |
Rehearing Granted, January 28, 1927, Reported at 168 Minn 319 at 326.
Defendant appealed from a judgment of the district court for Ramsey county, Hanft, J., in favor of plaintiff in an action for personal injuries. Reversed and remanded.
Questions for jury -- Examination of medical experts.
1. Defendant owned a building, parts of which were leased to different tenants. It maintained a freight elevator and also a stairway adjacent to the elevator shaft leading from the first floor to the basement. The elevator was in charge of defendant's employe and served the tenants and their tradesmen. A man delivering ice to a tenant was taken to the basement on the elevator. He returned by way of the stairs. The elevatorman in attempting to adjust a tile in the wall between the stairway and elevator shaft caused it to fall toward the stairway. The iceman was injured on the stairway. He did not know what hit him. He, his employer and the defendant were under the compensation act. Held that:
(1) The evidence was sufficient to take to the jury the question whether the employe was injured by the falling tile and also whether there was a causal connection between the injury and the act of negligence.
The mental impairment of a witness is for the consideration of the jury.
(2) The question of defendant's negligence was for the jury.
(3) The practice in the examination of medical experts as disclosed in the opinion, is disapproved.
(4) Defendant and the ice company, at the time the employe was injured, were engaged in the due course of business in the accomplishment of related purposes on the premises within the purview of G.S. 1923, § 4291, subd. 1, and employe's exclusive remedy is under the compensation act.
AFTER REARGUMENT.
January 28, 1927.
Employe may sue third party for damages or proceed against employer for compensation.
2. Where injury for which compensation is payable under part 2 of the compensation act is caused by circumstances also creating a legal liability for damages on the part of any party other than the employer, such party also being subject to the provisions of part 2 of said act, the employe may, at his option, proceed either at law against such party to recover damages, or against the employer for compensation, but not against both. If he brings an action for the recovery of damages, the amount thereof and the manner of payment shall be as provided in part 2 of said act.
Amount of compensation payable to be declared by this court.
3. In such action the court shall declare the amount to be paid under said act.
Appeal and Error, 4 C.J. p. 1032 n. 36.
Evidence, 22 C.J. p. 724 n. 3.
Landlord and Tenant, 36 C.J. p. 253 n. 51; p. 254 n. 59 New.
Trial, 38 Cyc. p. 1520 n. 73; p. 1599 n. 45; p. 1600 n. 46.
Witnesses, 40 Cyc. p. 2201 n. 61; p. 2202 n. 62.
Workmen's Compensation Acts, C.J. p. 19 n. 34; p. 140 n. 92 New.
Denegre, McDermott & Stearns and D. E. Dwyer, for appellant.
Otto Mork and Stanley S. Gillam, for respondent.
Appeal from a judgment entered after a denial of defendant's motion for judgment non obstante.
Chris Rasmussen was an able bodied men employed by the Citizens Ice & Fuel Company. Defendant owned a lease of ground on which it erected a building part of which is known as the St. Francis hotel and is leased to the St. Francis Hotel Company. Other tenants occupy other parts of the building. Defendant maintains a freight elevator and stairway adjacent thereto in the building. This stairway from the basement to the first floor has one landing at the turn in the middle. Between the stairway area and the elevator shaft is a wall composed of tile about 12" X 12" X 4".
Rasmussen and one Thorson, a co-employe, delivered ice daily to the hotel company. On a regular trip Rasmussen took a cake of ice on the elevator and defendant's employe, Thill, in charge thereof, lowered it to the basement floor. Rasmussen proceeded with the ice to the hotel ice-box, the elevator being taken back to the first floor landing. Thorson, standing nearby, noticed a loose tile in the wall. It protruded slightly into the elevator shaft. He attempted to adjust it with a broom. Thill, apparently dissatisfied with the results, took the broom and in an effort to more properly adjust the tile caused it to fall on the other side of the wall toward the stairway, perhaps 15 feet below. One or two minutes thereafter Rasmussen, who had delivered the ice and procured a receipt therefor, returning by the stairway, which was his usual route, emerged, pale and with blood on the right side of his face, nose and cheek bone, having a slight cut or abrasion under the eye and on the nose. He bled freely. He said that he nearly got killed. He continued with his work. There is evidence showing that he had a lump on his head, a large bump on his right wrist, and his lower right forearm was swollen and that his teeth were loose. On the same day his associates noticed that he was peculiar. This continued for about 10 days when he was taken to a hospital where his trouble was diagnosed as dementia precox paranoid which is a medical term indicating that form of dementia in which the patient exhibits ideas of persecution and has delusions. During the interval between the accident, August 25, 1924, and the trial, April 7, 1925, his mental impairment increased. A guardian was appointed who prosecuted this action resulting in a verdict of $8,130. Upon the trial Rasmussen testified: "Well, as I was coming up the steps, why something hit me and I didn't know nothing until I got to the wagon." Plaintiff's medical experts testified that Rasmussen was suffering from a form of insanity which comes on after or at the time of an injury caused by a combination of sudden fright and physical injury.
1. Appellant claims the physical facts on the record show conclusively that Rasmussen was not struck by the falling tile. It seeks to bring this case within the doctrine of Larson v. Swift & Co. 116 Minn. 509, 134 N.W. 122. Appellant also claims that the evidence leaves the question of causal connection between the injury and alleged negligence a matter of conjecture only, as discussed in La Pray v. Lavoris Chemical Co. 117 Minn. 152, 134 N.W. 313. It is urged that if Rasmussen was insane his testimony must be disregarded. It would seem however that whether his mental impairment was of such character as to totally destroy his competency as a witness was for the determination of the jury. Such is the practice. Dushaw v. G.N. Ry. Co. 157 Minn. 171, 195 N.W. 893. We cannot adopt the argument advanced by appellant in support of its contention that we must conclude from the record as a matter of law that there was no causal connection between the injury and the act of negligence. Nor can we hold that the cause of injury rests in the field of conjecture. We have no difficulty in concluding that it was a matter of fair inference for the jury to say from the evidence and circumstances that Rasmussen received his injuries proximately as a result of the fall of the tile. The law does not demand unreasonable things. The circumstances are convincing that the falling tile caused the injury. It is not necessary for plaintiff to attempt to explain why the tile did not make a more serious cut or open wound. No one knows whether a flat side or sharp edge of the tile first struck Rasmussen or whether his hat served as some protection. Appellant is demanding that plaintiff show exactly how the injuries were received. This is not necessary. The jury is required to determine the facts from the evidence according to the reasonable probability of the truth. Lillstrom v. N.P.R. Co. 53 Minn. 464, 55 N.W. 624, 20 L.R.A. 587. We must not overlook the fact that negligence may be and often is established by circumstantial evidence. It is sufficient if the evidence furnishes a reasonable basis for satisfying the jury that the act complained of was the proximate cause. Absolute certainty is not necessary. Hedin v. N.W. Knitting Co. 127 Minn. 369, 149 N.W. 541. Respondent by direct and circumstantial evidence sufficiently met the burden of producing evidence justifying the jury in concluding that the causal connection between the negligence and the injury was established.
2. When defendant's employe attempted to readjust the tile in the wall he knew of the existence and necessity of the stairway on the opposite side, the use to which it was being put, and that Rasmussen used...
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