Volume 231 — Minnesota Reports

<bold>Criminal law — evidence — res gestae — statements of</bold> <bold>13-year-old child — admissibility</bold>. <block_quote> Statements made to other members of a crew by a 13-year-old boy temporarily employed as a laborer with his father's construction crew as to criminal acts claimed to have been committed on the boy by defendant were not admissible as part of the <italic>res gestae</italic> where it appeared from the record that the statements were not spontaneous utterances made at the first opportunity and generated by an excited feeling which extended without a break or letdown from the time the alleged crime was committed to the time the statements were made, but, rather, that they were made an hour and a half or two hours after he had returned to the bunkhouse following the commission of the alleged act and after the boy had taken a shower bath, had thought the matter over, and had "dozed off" to sleep for a while.</block_quote>

<bold>Municipal corporation — zoning ordinance — construction —</bold> <bold>erection of accessory buildings</bold>. <block_quote> 1. A provision in a zoning ordinance authorizing the erection in a residence district of accessory buildings, including one private garage, should be construed as authorizing the construction of a private garage in such a district only when it also is an accessory building, where the ordinance divides the city into a business district and a residence district, permits in the latter only specified uses deemed suitable for a residential district, excludes therefrom business enterprises, and defines separately accessory buildings and private garages, and where the use of a private garage other than one which also is an accessory building would emasculate and defeat the purpose of the ordinance in dividing the city into the two districts mentioned.</block_quote> <bold>Same — building permit — issuance in violation of zoning</bold> <bold>ordinance — enforcement of zoning regulation</bold>. <block_quote> 2. A building permit issued in violation of a zoning ordinance by an official lacking power to alter or vary the ordinance is void, and the zoning regulation may be enforced notwithstanding the fact that the permittee may have commenced building operations.</block_quote>

<bold>Judgment — notwithstanding verdict — motion — necessity of</bold> <bold>motion for directed verdict at close of evidence</bold>. <block_quote> 1. Pursuant to M.S.A. <cross_reference>605.06</cross_reference>, a motion for a directed verdict <italic>at the close of all the testimony</italic> is a prerequisite to the making of a motion for judgment notwithstanding the verdict.</block_quote> <bold>Marriage and divorce — contract to marry — validity —</bold> <bold>execution by divorced person prior to expiration of period</bold> <bold>prohibiting remarriage</bold>. <block_quote> 2. A party who has been divorced may, within and before the expiration of the six-month statutory (§ <cross_reference>517.03</cross_reference>) period during which an act of remarriage to another is expressly prohibited, make a valid contract to marry a third party when such contract by its terms is to be consummated after the expiration of such period.</block_quote> <bold>Witness — examination — leading questions — discretion of</bold> <bold>trial court</bold>. <block_quote> 3. When and under what circumstances leading questions may be put to a witness is a matter resting almost wholly in the discretion of the trial court and is not ground for a new trial unless there has been a gross abuse of discretion.</block_quote> <bold>Appeal and error — review — exclusion of evidence —</bold> <bold>prejudicial effect</bold>. <block_quote> 4. The denial of admission into evidence of a marriage license issued to plaintiff and a third party 11 months after defendant's breach of promise was not prejudicial.</block_quote><page_number>Page 136</page_number> <bold>Evidence — materiality — remoteness — discretion of trial</bold> <bold>court</bold>. <block_quote> 5. Whether evidence should be excluded for remoteness rests largely in the discretion of the trial court.</block_quote> <bold>Breach of promise of marriage — recovery of damages</bold> <bold>notwithstanding subsequent marriage to another</bold>. <block_quote> 6. A woman may recover substantial damages for breach of promise of marriage notwithstanding her subsequent marriage to another.</block_quote> <bold>Appeal and error — record — memorandum of trial court —</bold> <bold>examination for clarification of grounds for new trial not</bold> <bold>clearly specified</bold>. <block_quote> 7. Where an order of the trial court fails to specify clearly upon what ground a new trial was granted, the court's memorandum, although not made a part thereof, may be examined <italic>for the limited purpose of clarification</italic> to enable the appellate court to discover the ground upon which the new trial was granted.</block_quote> <bold>New trial — denial — excessive verdict — remitting amount of</bold> <bold>excess</bold>. <block_quote> 8. Where the amount of damages awarded under a verdict is excessive and the excess appears to have been given under the influence of passion and prejudice, but the verdict in other respects is substantially correct and reasonably appears not to have been influenced by such passion and prejudice, the trial court <italic>in the exercise of a sound discretion</italic> may deny a new trial upon the condition that plaintiff remit such sum as shall, in the judgment of the court, eliminate the element of excessiveness.</block_quote> <bold>Breach of promise of marriage — damages — assessment —</bold> <bold>factors for consideration</bold>. <block_quote> 9. In a breach of promise of marriage action, the jury in assessing plaintiff's damages may take into consideration defendant's financial worth, his social position, the pecuniary and social advantages plaintiff would have enjoyed had defendant performed his contract, as well as the mental pain and anguish she suffered as a result of the breach.</block_quote> <bold>Appeal and error — review — assignments of error — necessity</bold> <bold>of argument or authorities in support thereof</bold>. <block_quote> 10. An assignment of error based on mere assertion and not supported by any argument or authorities is deemed waived and will<page_number>Page 137</page_number> not be considered on appeal unless prejudicial error is obvious on mere inspection.</block_quote>

<bold>Process — service of summons — requirements as to manner of</bold> <bold>service</bold>. <block_quote> 1. The service of a summons as authorized by M.S.A. <cross_reference>543.03</cross_reference> and the making of proof thereof in compliance with § <cross_reference>543.14</cross_reference>, by necessary statutory implication, requires that the act of effecting such service upon a defendant be performed both <italic>knowingly</italic> and <italic>intentionally</italic>.</block_quote> <bold>Appearance — nature of appearance — determination —</bold> <bold>examination of motion</bold>. <block_quote> 2. Where a notice of motion fails to indicate whether an appearance is general or only special, the motion itself to which the notice of motion is attached may be examined to determine the nature of the appearance.</block_quote>

<bold>Damages — inadequate damages</bold>. <block_quote> 1. Where plaintiff sustained special damages amounting to $781.79 and her injuries consisted of various fractures to the hipbone and sacrum, which required her confinement in the hospital for 17 days and her subsequent incapacity and loss of earnings for approximately a year after the accident, verdict of $2,000 <italic>held</italic> so inadequate as to require a new trial on the issue of damages.</block_quote> <bold>Same — general damages — factors for consideration —</bold> <bold>evidence of past earnings</bold>. <block_quote> 2. Where plaintiff was unemployed at time of accident, but had worked prior thereto and was possessed of earning capacity, general damages may properly include loss of earnings, evidence of past earnings constituting a factor for consideration in determining the amount thereof.</block_quote> <bold>New trial — issue of damages — inadequate award</bold>. <block_quote> 3. Where inadequate award indicates that jury may have been prejudiced by plaintiff's attendance at night clubs and places of entertainment prior to the accident, a new trial should be granted on the issue of damages.</block_quote> <bold>Same — same — same</bold>. <block_quote> 4. Where evidence on issues of defendants' negligence and plaintiff's contributory negligence is undisputed and amply sustains jury's verdict on such issues, but award is inadequate, case should be remanded for a new trial on issue of damages alone.</block_quote> <bold>Damages — general damages — exclusion of evidence as to</bold> <bold>earnings after accident — prejudicial effect</bold>. <block_quote> 5. Where there was no claim of permanent impairment of earning capacity, trial court did not err in excluding evidence of wages earned by plaintiff when she resumed work a year after the accident,<page_number>Page 304</page_number> such wages being substantially the same as she earned prior to the accident, evidence of former wages having been previously received.</block_quote>

<bold>Certiorari — time for issuance of writ — service of notice of</bold> <bold>proceeding</bold>. <block_quote> 1. In order to limit the time for issuance of a writ of certiorari under M.S.A. <cross_reference>606.01</cross_reference>, due notice requires written notice to be served upon the party applying for the writ.</block_quote> <bold>Municipal corporation — review of results of civil service</bold> <bold>examination — proceedings</bold>. <block_quote> 2. Actual knowledge of results of a civil service examination does not preclude review by writ of certiorari on the ground of laches where it was within power of civil service commission, by compliance with its own rules, to limit time by service of written notice on testee.</block_quote><page_number>Page 310</page_number> <bold>Same — civil service examination — validity</bold>. <block_quote> 3. Mere fact that others may be affected will not make legal an examination which did not substantially comply with law and with rules for holding examination.</block_quote>

<bold>New trial — setting aside second verdict — excessiveness of</bold> <bold>award</bold>. <block_quote> 1. It is the peculiar province of the jury to assess the amount of damages, and where the evidence does not <italic>clearly</italic> indicate that the damages awarded are so excessive as to appear to have been given as a result of passion or prejudice, the court should act with <italic>increased</italic> caution when asked to set aside a second verdict on that ground.</block_quote> <bold>Same — instructions — inadvertent errors or omissions —</bold> <bold>exceptions</bold>. <block_quote> 2. Although errors in jury instructions as to controlling propositions of law may be called to the attention of the trial court for the first time in a notice of motion for a new trial, this is not the case — <italic>where the charge as a</italic> <italic>whole is substantially correct</italic> — with respect to inadvertent errors or omissions which creep into a charge such as ambiguities or unintentional inaccuracies arising from a failure to qualify general statements of law or fact or which involve nothing more than an obvious unintentional reflection of emphasis which arises from devoting more words in stating plaintiff's evidentiary claims than in expressing defendant's denials or defenses.</block_quote> <bold>Appeal and error — review — instructions — inadvertent</bold> <bold>errors or omissions — necessity of timely exception</bold>. <block_quote> 3. The right to call the court's attention to its inadvertent omission or error in the charge, or to take exception thereto, involves a corresponding duty to exercise such right seasonably before the jury has retired, and such inadvertent omission or error may not, <italic>for the purposes of</italic> <italic>review upon appeal</italic>, be raised for the first time in the notice of motion for a new trial.</block_quote>

<bold>Evidence — narrative testimony of events in which party</bold> <bold>participate — contradiction by other witnesses</bold>. <block_quote> 1. Where the testimony of a party to the action consists of a narrative of events in which the party participated or which he observed, such testimony may be contradicted by the testimony of other witnesses.</block_quote> <bold>Automobile — head-on collision — avoidance of parked truck —</bold> <bold>proximate cause of collision</bold>. <block_quote> 2. Conflicting testimony of witnesses as to the movement of defendants' truck presented question of fact for the jury as to negligence and proximate cause, even though it would appear as a matter of law from plaintiff's testimony, standing alone, that negligence was not proximate cause of plaintiff's injuries.</block_quote> <bold>New trial — excessive verdicts against weight of evidence —</bold> <bold>new trial rather than remittitur</bold>. <block_quote> 3. Where plaintiff in one action sued for $2,500 and jury returned a verdict of $4,500, which was reduced on motion of plaintiff to $2,500, and plaintiff in the other action sued for $1,100 and jury returned verdict of $1,600, which was reduced on motion of plaintiff to $946.04, the amount of the repair bill, and where the verdicts were against the great weight of the evidence, there should be a new trial rather than a remittitur.</block_quote>

<bold>Manslaughter in second degree — proximate cause of death —</bold> <bold>proof required</bold>. <block_quote> 1. To sustain a conviction of manslaughter in the second degree, the state must prove beyond a reasonable doubt that defendant's acts were the proximate cause of the victim's death.</block_quote> <bold>Same — prosecution — question for jury — intervening causes</bold> <bold>— acts of third parties</bold>. <block_quote> 2. Whether the acts of third parties constitute intervening causes is ordinarily for the jury.</block_quote> <bold>Same — proximate cause of death — question for jury —</bold> <bold>involuntary removal of defendant prior to act causing death</bold>. <block_quote> 3. The involuntary removal of defendant prior to the explosion which caused the death of the victim will not of itself constitute a defense, but may be considered by the jury in determining whether defendant's acts constitute the proximate cause.</block_quote> <bold>Same — same — want of care of third person</bold>. <block_quote> 4. Want of care of a third person may not be considered as a factor bearing on defendant's culpability.</block_quote> <bold>Criminal law — prosecution — defenses — contributory</bold> <bold>negligence of victim</bold>. <block_quote> 5. Contributory negligence of the victim is not a defense in a criminal prosecution. It may be considered only.</block_quote> <bold>Manslaughter — proximate cause of death — concurrent</bold> <bold>negligence of third persons</bold>. <block_quote> 6. Concurrent negligence of third persons is not a defense to a prosecution for manslaughter.</block_quote>

<bold>Habeas corpus — grounds for issuance of writs by supreme court</bold> <bold>— sufficiency</bold>.