*1 * * * fied; ‘Facts, osteopath employee mony.’ proven that an whom point in saw November 1973 and several times demonstration, against control as mere ” thereafter treated but both shoulders most declarations witnesses.’ one; right often the and that neither the point, There comes even in workers’ a osteopath nor Dr. a history Steiner recorded cases, duty compensation where it is the Turay, 1973 incident. how- Unlike reject testimony in- the court to which is ever, objective no conclusively evidence dis- credible, my opinion this is a in such proves employee’s testimony. Moreover, he case. difficulty has some speaking English, and I would reverse. agreed the medical witnesses he that good a As historian. in other cases PETERSON, (dissenting). Justice turning credibility witness, on the of a we see no judgment reason substitute our join Otis. I in the dissent of Mr. Justice appeals’ court of judgment on that Dotstry Hotel, issue. v. Radisson (Minn.1978).

N.W.2d 716

Affirmed.

OTIS, (dissenting). Justice agree

I cannot majority with the relators have the conclusively burden of al., by May Rai-Anne SEELEY et Theresa disproving employee’s testimony. This Seeley, guardi their mother and natural is not a applied rule we have heretofore an, Individually, Seeley, and Theresa litigation civil and on contrary, re- Appellants, spondent has the proving by burden of preponderance evidence, fair first, second, that he injury; sustained an that it Lee, Anna I. SOBCZAK and Elwood B. related; third, was work that it was Tavern, al., d.b.a. et disability. the cause of his A fact finder is Respondents. not bound by claimant’s uncorroborated tes- timony without reference to whether or not No. 48937.

it is As Judge McCarthy points credible. Supreme Court of Minnesota. concedes, out his majority dissent and the nothing is support there in the record to June 1979. finding injury in November osteopath neither the nor the medical doc- respondent

tor who treated in November any history inju- recorded of such an

ry. Dr. Steiner first was aware in July

claim

It is experience to all human patient,

that a unsophisticated, however

who is treated for trauma would fail

advise his doctor of the events which led to injury,

his treating or physician

would fail to record that essential informa- if

tion it were furnished him.

Judge McCarthy’s aptly conclusions are

supported by reference to black letter law: “ ‘physical speak facts which the truth un-

erringly cannot overcome oral testi-

369 MAXWELL, L. Justice.* STEPHEN claim that defendants sold in- Plaintiffs toxicating liquor plaintiffs’ decedent intoxicated, in viola- obviously when was he Damage jury Civil Act. The tion of the defendants, for and returned a verdict asking hold plaintiffs appeal, this court to decedent, con- whose blood alcohol .269, was was tent at the time death obviously as a matter of law. We affirm. three minor are the wife and

Plaintiffs decedent, Douglas Seeley. De- children of Tavern, its owners Eagle fendants are the operators, and and its insurer. Eagle Tav- Douglas Seeley arrived at the 23, January p. m. on ern about 4:45 6 approximately there for He remained brandy blackberry and drinking hours beer friends and at times with various alone and relatives. m., p. Seeley left the

Shortly before 11:00 he was about home. When tavern to drive tavern, Seeley apparently 5 from the blocks attempting to while lost control of his truck body freeway Seeley’s ramp. a turn onto outside his vehicle. was found to St. Luke’s Seeley’s body was taken Duluth, Hospital autopsy where an performed. alcohol concentration His blood percent. grams to be .269 was determined drinking trial, Seeley’s compan- At one of Seeley was January 23 testified that ions of evening. companion, Another drunk that Seeley with only the tavern who was at January on 45 minutes about togeth- particular group got that when Arnold, Hunt & and Arnold Jerome G. drunk, and that they always got er Duluth, appellants. for con- Eagle Tavern would bartender at the Hanft, Pride, Harries, Gaylord O’Brien & Seeley’s liquor. wife tinue to serve them Swelbar, Erickson, Raymond W. and L. Du- Seeley with spoken who had daughter, luth, respondents. January during evening by telephone Tavern, testi- while he was at the YETKA, ROGOSHESKE, Heard before when he Seeley sounded drunk fied that MAXWELL, JJ., and considered them. by spoke decided en banc. court * Acting pursuant Supreme appointment as Justice of the Court art. Minn.Const. and Minn.St. subd. 2. experts, Two pathologist (a) and toxicolo- other corroborated evidence of gist testifying plaintiffs,- on policy behalf indi- curb state’s abuse alcohol and to cated that must have illegal consumed suppress liquor, (b) sales of the abuse proximately during 18 drinks drivers, time he (c) alcohol motor vehicle *3 Eagle was at the in Tavern order to reach a integrity sample of the blood and the accu- blood level They alcohol of .269.1 further racy analysis, (d) proximity of its the of the that, although experi- the more Tavern, (e) Eagle accident to the circum- enced drinker is better able to mask the itself, (f) stances of the accident the custom alcohol, symptoms anyone of with a blood person habit of drinking, the and of his alcohol content in excess of .2 would exhibit (g) liquor the custom and habit of the ven- signs of intoxication to a person. reasonable dor, (h) general knowledge the society experience of our of the relation of Five witnesses who testified on behalf of signs quantity of of alcohol intoxication to however, defendants, Seeley stated that ingested period over a certain of time must was obviously not intoxicated on the eve- establish as a matter of law that he was ning he died. Two of these witnesses had liquor by furnished defendants when he drinking been evening, on that “obviously was intoxicated” within the tavern, two were employees of the and one Minn.St.1974, 340.14, meaning la, subd. § was a off-duty former or employee who was which reads: assisting the cocktail part waitress for the evening. Each of these sold, witnesses testi- intoxicating liquor “No shall be Seeley, fied that heavy drinker, who was furnished, any purpose or delivered for to quiet January 23, was on and that he was any any person obviously minor or to staggering, boisterous, slurring or his persons any intoxicated or to words. by whom is prohibited sale statute.” (Italics supplied.) jury

The in answering special inter- rogatories found that the Tavern did position Plaintiffs’ is unfounded. In not furnish Douglas Seeley liquor after he Watson, Strand v. Village of 245 Minn. was obviously intoxicated. (1955), addressing N.W.2d 609 whether plaintiff required was prove Two issues are before the court on (urinalysis percent driver showed .27 alcohol (1) peal: Douglas Seeley’s Did blood-alcohol by weight) plaintiff’s injury who caused content .269 percent weight establish intoxicated, obviously was provided by as that he was obviously intoxicated as a mat- 340.14, required merely prove § or was ter (2) of law? jury’s Was the decision intoxicated, provided that the driver was as weight to the of the evidence? ordinance, village this court held Act, The Damage Minn.St.1974, Civil language 340.14 was control- § plaintiffs under § which seek relief ling, and stated: provides pertinent part: legislature “Where the has created “Every husband, wife, child, parent, right to a cause of action which did not guardian, employer, person or other who exist at provided common law and has injured is person or property, or means yardstick by right which that should support, by any person, or measured, be recovery may not be had by the any person, intoxication of has a application of some standard less than right action, name, in his own against * * prescribed by legislature. any person who, by illegally selling, bar- tering giving or liquors, intoxicating

caused the all damages, intoxication of such sustained; * * person, *.” “ * * * ¾5 n ! [Tjhere is a manifest differ- SfS Jk ^[*] n

1. Plaintiffs Douglas contend that ence between the term ‘under the influ- Seeley’s percent .269 blood (§ 169.12), alcohol content intoxicating liquor’ ence of as

1. 80-proof liquor A strong “drink” as used here means one or ounce of twelve ounces of beer. laws, Damage used in our traffic and the term The Civil Act is a creation intoxicated,’ ‘obviously as used in 340.- § expand of statute and therefore cannot be may In the former it well case beyond ed explicit by judicial its terms con urinaly- that the results of a blood test or Bloom, struction. Fitzer v. 253 N.W.2d 395 may sis alone be sufficient to establish a (Minn.1977). Holding, plaintiffs urge, case, violation of the law. In the latter given may that a blood-alcohol content es while a urinalysis may blood test or in a person tablish as a matter of law that a is proper case be admitted to assist the trier obviously intoxicated would render mean determining of fact in buyer whether the ingless the “obviously” word in 340.14 and had reached such a state of intoxication significantly duty would increase im that the seller should have known that he posed furnishing intoxicating on those li intoxicated, not, standing it does See, Lake, quor. Mjos Village of Howard *4 alone, probative have the force or value (1970). 287 Minn. 178 862 If N.W.2d involving which it has in a case a viola- desirable, expansion liability such an tion of our traffic laws. The reason for imposed by the act should come from the this per- distinction is obvious. Where a legislature, from this court. son partaken intoxicating liquor has of automobile, is driving an he himself The issue whether the verdict for should know what his state intoxica- weight defendant the tion is. In the case of a violation of appeal the evidence must be reviewed on 340.14, the § seller must determine from light prevailing the most favorable to what he buyer observes whether the has party. Ferknes, Ruskamp v. 261 N.W.2d point reached a of saturation where it (Minn.1978). 612 fully As out more set illegal would be liquor. to sell him more above, witnesses, including Seeley’s five hardly It can supposed be that the seller drinking companions employees and the intoxicating liquor subject buy- must tavern, appar testified that it was not er to urinalysis a blood test or between ent that was intoxicated on the eve each peril drink or sell at his if there are hand, ning he dece died. On the other signs no of intoxication which should rea- daughter dent’s wife that he sonably lead him to conclude that they sounded intoxicated when talked to time has come to refuse to sell more evening telephone. him that over the Al liquor. give any To the statute other testi though plaintiff expert did introduce meaning would render word ‘obvious- mony anyone whose to the effect that ly’ in meaningless.” 340.14 245 Minn. percent blood-alcohol exceeds .2 content 421, 72 N.W.2d 615. to a symptoms would exhibit of intoxication urge Plaintiffs now this court to “answer expert testimony person, reasonable such affirmatively question left undecided” need not be conclusive considered Store, Municipal Liquor Jaros v. Warroad jury, given greater weight it nor must 303 Minn. (1975), 227 N.W.2d 376 where See, presented. any than other evidence we held that the admission into evidence 390, 399, 70 Berg Ullevig, 244 Minn. demonstrating blood test the dece- (1955). N.W.2d dent’s percent blood-alcohol content was .28 us, the evi- Based on the record before by weight strong prima established a facie dence the verdict for defend- does sustain intoxication, case of expressly but declined ant. to hold that a blood test establishes intoxi-

cation as a matter of law. At the time the Affirmed. arose, however, Jaros cause of action statute made no person reference to a obvi- WAHL, J., part no in the considera- took ously “obviously” intoxicated. The word this case. tion or decision of was reintroduced into Minn.St. subd. OTIS, (concurring specially). Justice 1, by L.1971, any question c. 264. Thus understood By affirming we are not to be ques- unanswered Jaros is not the same shop tion can appeal. holding liability raised this on a dram imposed merely never be pa- because the

tron “obviously involved was not intoxicat- may

ed.” There be circumstances where

employees of a dram shop charged are patron’s

notice of the condition,

regardless appearance, of his they if have

furnished quantities him with such liquor premises

on the that he could not possibly being

avoid intoxicated. Minnesota, by

STATE of Arnold K. Jacqueline Skeie,

SKEIE and A.

Appellants, *5 COOPERATIVE,

MINNKOTA POWER

INC., Respondent.

No. 48847.

Supreme Court of Minnesota.

June

Thompson Klaverkamp Nielsen & James Merritt, and Grant J. Minneapolis, for pellants.

Cann Schmidt & Weddel and James W. Haskell, Bemidji; respondent.

Heard, considered and decided court en banc.

SHERAN, Chief Justice. appeal This is the of an reconsideration County from the of the Polk judgment Dis- dismissing plaintiffs’ trict Court action un- enjoin der Minn.St. 116B.03 to Minnkota Cooperative, (Minnkota) Power Inc. from constructing power, proposed line on a plaintiffs’ property. May route across On 16, 1978, this court restrained construction power of the pending disposition line