*1 right appellants have a to in- would whether need not decide we right Rule under 24.01. tervene of remanded. Reversed AVIATION v. GOPHER L. MANSFIELD

MARJORIE ANOTHER. AND COMPANY 2d 135. August 9, 1974 No. D.

Schermer, Schwappach, & John Borkon Ramstead and Mwriani, for relator.

Raymond Fitch, respondents. Yetka, Todd, J., Otis, Sheran, Kelly,

Heard before C. JJ., the court. and considered decided

Per Curiam. proceeding

This a decision of certiorari review dependency denying Compensation Commission Workmen’s Mansfield, em- relator, deceased of Austin benefits widow ployee. airplane crash in Mansfield

The claim arises out of an which Sr., president May 17, 1969. The reversed killed on who had determined that the death arose out of and in the course of the of decedent. We reverse and remand. employed by Gopher

Mansfield was November Avia- *2 Company (Gopher) principally pilot on a mail contract At highly qualified run. the time of his he was a pilot transport rating, rating, with air instructor’s instru- rating, multi-engine rating ment instructor’s and issued Federal Authority. Aviation His the home record at Gopher Rochester, Minnesota, ratings office of at disclosed these employment. Gopher engaged at the time his of was in the busi- selling airplanes giving flight ness of Beechcraft and instruc- Gopher department flight tions. branch maintained a sales and department Fleming Paul, instruction at in Min- Field St. South nesota. In December 1968 decedent was transferred to sales department Gopher Fleming occasionally oper- of at and Field flights Gopher. ated charter for February Liv-A-Snaps, Inc., pur- in became interested

chasing twin-engine Gopher. Beechcraft Baron from At that time, Carlson, Sr., president manager Dean was of com- pany, Carlson, Jr., Dean manager, was assistant and John W. (Bill) Kennedy, Carlson, Sr., a brother-in-law of Dean and a co- pilot Airlines, contemplating doing with Northwest some flying corporation. for the Contact between Gopher originally Carlson, Jr., Dean between Noteboom, Gopher Fleming Arthur a salesman for Field. At original negotiations, Carlson, Jr., the time of the Dean was a pilot, private Carlson, Sr., pilot’s student Dean had a license but multi-engine planes, Kennedy was not rated and John W. light had a plane, commercial license was not rated multi- engine. 14,1969, Carlson, Sr., capacity presi-

On March Dean in his signed Liv-A-Snaps, Inc., purchase agreement dent for the airplane agreement question. The was executed on behalf Gopher agreement purchase provided Arthur Noteboom. Kennedy, Bill check-out to solo: Mr. “Gopher to part: Aviation Carlson,.Sr., Dean Jr.” Mr. Dean

Mr. Carlson, Jr., that testified before Dean ac- purchase aircraft Noteboom was of the at the time flying Dean quainted license witness’ status Kennedy, Carlson, Sr., and that Noteboom knew and Bill ratings fly plane multi-engine to needed none of them had ratings that these being purchased. Dean testified testi- purchase airplane. Noteboom included in would be agreement only originally con- that the on behalf of fied namely, to provided provide contract, templated com- However, he admitted that behalf solo instruction. agreement subsequent to its execution pany he modified Kennedy multi-engine rating for that it was the basis include easy rating relatively qualify of his him for such a because experience. agreements ex- He that similar denied Carlson, Sr., tended to Jr. Arthur Hoff- Dean nothing man, president Gopher, vice that he testified knew *3 multi-engine including any agreements ratings, for about agreement Kennedy. Noteboom between employed by Gopher

Gopher Henry, provided Robert who was time, Kennedy. at a Henry qualified to instruct Mr. was Kennedy qualify him FAA to instructor and did instruct so as multi-engine rating. obtaining requirement A final for rating properly is a “recommendation ride.” Another instructor regulations pilot qualified fly under FAA must with the student rating. Mansfield, approve application obtained to his for Henry service, gave recommendation ride Ken- for this to Kennedy pay nedy. he Mansfield testified that offered to for this there 'would but was advised Mansfield that be no service purchase plane. charge part price as this was Sr., Carlson, giving Dean at instructions to also was employ- May 1, 1969, However, he his terminated time. on employ Gopher and entered ment with give company. He to instructions to pilot continued for Carlson, Sr., Dean but received no additional remuneration Liv-A-Snaps Gopher. Henry either testified that this from arrangements give him a rec- he had made with Mansfield for to May Carlson, 17,1969, a ride to Dean On Satur- ommendation Sr. day, copilot accompanied as a charter Mansfield Hoffman returning by flight Minneapolis Rochester, commercial from they Minneapolis. that at no time did airline to Hoffman testified Carlson, Sr., giving a recommendation ride to Dean discuss that date. Gopher decedent, employed by Mansfield,

David the son of was Fleming a He testified that on Sat- line attendant at Field. urday phone a someone” he received call “from notify recommenda- father to Rochester to his never The source this call was to Dean ride Sr. message, response contact established to this determined. following gone his he had the deceased at home where his Fleming proceeded He left home and from Rochester. The them took off he met Dean two of Field where Sr. purpose ride. airport of the recommendation for the from parties killed. plane crashed and both The judge decedent’s death had compensation determined that allowed his and in the course of arisen out of On dependency the statute to the widow-relator. under benefits Commission, finding appeal to the Workmen’s finding judge a new set aside and and in not arise out of the accident did Thereafter, relator decedent. the course of right consist- additional evidence petitioned to submit original presented hear- at the ing she had not ing of Robert original hearing. allowed

presented The commission at the *4 any addi- refused to allow of relator but Carlson, Relator testified Jr. or tional appearing her home some- her recollection of Hoffman as to stating check and deliver an insurance time after accident to 40 decedent to he had never told her that he wished any recollection

Sr., Hoffman denied ride. recommendation previous its The commission affirmed of such conversation. this writ of certiorari issued from and the denial of benefits court. matter, considering must determine whether this we manifestly clearly con- commission are

conclusions of further, evidence, and, its trary the commission abused to the if refusing testimony of to consider additional discretion Jr. regarding scope repeated rule of review The often findings Com- of the Workmen’s court is that considera- questions be disturbed unless will not mission fact may be permissible inferences which of the evidence with adopt requires compels reasonable minds drawn therefrom Minneapolis Ry. 268 Co. contrary Roman v. St. conclusion. (1964). find- 367, 129 550 the commission’s Minn. N. If W. evidence, ings supported by the court are substantial decision retry reached not the case rather affirm the decision will will 524, Residence, Minn. below. Methodist Watkins Walker (1972). by the Further, considering reviewing a determination findings aside the commission which sets findings judge, and not the it is the of the commission for con- that are court before Church, Congregational sideration. Farnam v. Linden Hills Minn. N. 2dW. question did determined the accident Mans- of decedent

not arise out the course accompanying decision, the its follow- field. In the memorandum ing appears: record, opinion that the entire it is our

“Based our review of weight that Mansfield’s evidence does establish direction and control of fatal was made under the

41 of and not arise out that his death did and thus we conclude Gopher.” of his the course highly questionable from the facts a determination Such seems upon proof is applicable law. burden of this case and the conjecture that speculation or the claimant to establish without employ the course of injury out of or in the the or death arose Minn. Scheppmann 294 & Const. Co. Funk A. F. Sons ment. v. issue, the stat (1972). In this 483, 199 N. W. 791 showing activity giving rise to require a ute does not relationship. solely injury motivated employer’s purposes enough It is if the desire serve Bemidji, Sandmeyer City Minn. 281 v. the dominant motive. performs (1968). employee serv 217, 2d 318 When N. W. employer-employee consequence of the existence of ices employment, is within relationship as incidental such he Koktavy Compensation protection Act. Workmen’s (1956). 550, Prague, City v. 75 N. W. 2d 774 Minn. New Compensation Act Further, we have held that Workmen’s coverage liberally all cases reason- is afford to be construed to Trojan ably purview. 242 Minn. v. Seed Co. within its Chillstrom liberally, construing 471, (1954). In the act 2d 888 relationship will defeat that a exists which court will not hold reasonably a deter- sustain if the evidence will relationship employer-employee exists which that an mination permit recovery. Suk, Hammes will 291 Minn. ap- us, it

Applying record would these standards to the before questionable. How- pear the decision commission believe, ever, because we ultimate we do not reach the fully devel- stated, must more that the record be as hereinafter necessitating oped, a remand. thus denying request the additional leave to submit relator’s Jr., indi- gentlemen of these the affidavits the evidence which

cated that find merely cumulative. We indicated be offered would not cumulative and witnesses were of the two that the affidavits developed their affidavits were consistent with that if evidence extremely important deter- hearing, in the final it be in a would principal issue. mination of its discre-

Consequently, the commission abused we hold that refusing the additional evidence offered to receive Henry. Therefore, the decision of Jr., we reverse mat- and remand the Commission Workmen’s consider and hear ter to the commission with instructions to of Robert *6 findings and con- to issue new conclusion of said record as then before them and in clusions based on the overall applicable the law to the facts as determined consideration of by them. attorneys

Relator allowed fees of $400.

Reversed and remanded.

Otis, (dissenting). Justice agree part I do not that it of discretion on the abuse deny of the commission to relator’s motion to submit Nor, my opinion, determina- evidence. the commission’s “highly employee’s questionable” it held that the death when employment. did not arise out of the course of his The commission stressed the fact that “Noteboom and Hoff- man denied that was to instructions Sr. be furnished beyond by Gopher part as solo deal.” commission fur- ther found:

“* * * phone Mans- that call received D. We believe Gopher, field from as considered with record a whole considering party speaking, given no recollection of the should be weight authority little as with from evidence someone the recom- ordered Mansfield to Sr. flight. pre-rating mendation or There is a admis- sibility phone being by Gopher call D. since place call authentica- Mansfield did not and there was no party calling.” tion of the testimony by Mrs. Mansfield

The commission allowed further In an denied that of as cumulative. accompanying memorandum, the addi- commission held that arranged employer tional evidence did not establish that the had given given by it test ride decedent or that be for Carlson’s to be nothing re- place. I in the record which at the time it took find quires us that the commission was to hold as a matter of law justified evidence was neither that the additional hearing new, significant, nor unavailable at the time of the Schleck, 296 Minn. merits. O’Connor I its deci- would affirm the commission’s finding supports there sion and would hold that evidence express agreement part implied on the was neither an nor an provide Carlson, Sr., recommendation employer to ride part purchase price aircraft. Peterson, (dissenting). Justice join

I in the dissent of Mr. Justice Otis. E. LANDREVILLE. OF PAUL v. ALDEN CITY ST. *7 August 16, 1974 No. Philip Hanzel Davies, City Attorney, A. Keith

R. Scott Attorneys, appellant. Byrne, City B. Assistant Belisle, respondent. Wayne T.