Volume 235 — Minnesota Reports

<bold>Master and servant — relationship of parties — loaned servant</bold> <bold>— acts for which special employer is liable</bold>. <block_quote> 1. A servant in the general employe of one employer may become the loaned servant of another employer. This relationship may exist with respect to some acts of the servant and not as to others. Where the business of the general employer consists of renting machines and operators to perform work for others, the test of whether an operator is a loaned servant with respect to a given act is whether the special employer had the right to exercise detailed authoritative control over the act in question. Where, as here, it conclusively appears that the special employer alone had such right of control over the act of the servant which negligently caused plaintiff's injury, the special employer and not the general employer is liable therefor under the doctrine of <italic>respondeat superior</italic>.</block_quote><page_number>Page 2</page_number> <bold>Same — liability of servant for injury to coemploye</bold>. <block_quote> 2. Under the law of Wisconsin, where one coemploye negligently injures his fellow employe, it is no defense in a suit against him to assert that they both were employed under one master.</block_quote> <bold>Appeal and error — review — instructions — charge as a whole</bold> <bold>— prejudicial effect</bold>. <block_quote> 3. Trial court's instructions on contributory negligence when considered as a whole did not present prejudicial error, although a portion thereof, standing alone, could have been prejudicial.</block_quote> <bold>Trial — instructions — oral request at conclusion of charge</bold>. <bold>Appeal and error — review — instructions — failure to charge</bold> <bold>— prejudicial effect</bold>. <block_quote> 4. Requested instruction proffered orally at the conclusion of the charge comes too late. This rule is particularly applicable where, as here, the requested instruction was not essential to jury's consideration of the controlling issues in the case. Accordingly, there was no reversible error in court's failure to instruct jury that in determining damages for loss of future earnings it should allow only the present value of such earnings, especially where record on appeal discloses nothing to indicate that loss of future earnings was included as an element of damage by jury.</block_quote>

<bold>Contract — conditional acceptance of offer to sell real estate</bold> <bold>— request for abstract</bold>. <block_quote> 1. Request for abstract did not render conditional a positive acceptance of offer to sell real estate containing no provision for furnishing abstract where it clearly appeared that request merely looked toward performance of contract of sale and was not intended as a qualification of the acceptance.</block_quote> <bold>Landlord and tenant — lease — ambiguity — meaning of</bold> <bold>parties</bold>. <block_quote> 2. Option provision in lease providing that plaintiff's right to purchase real estate could be terminated prior to his giving notice of intention to purchase "and/or the consummation of said purchase" <italic>held</italic> ambiguous because of use of the expression "and/or." Therefore, trial court erred in excluding proffered evidence relating to circumstances surrounding formulation of lease and meaning parties ascribed to its terms.</block_quote>

<bold>Appeal and error — review — extent of review upon voluntary</bold> <bold>response to arguments not assigned as error</bold>. <block_quote> 1. Ordinarily, where there are no assignments of error, there is nothing for us to review; but where respondent in his brief answers the arguments of appellant we may, in our discretion, consider the merits of the appeal insofar as it is covered by the arguments.</block_quote> <bold>Same — record — settled case — presumption as to order</bold> <bold>settling case</bold>. <block_quote> 2. Where there are two orders of the trial court in the record bearing the same date, one of which appears to settle the case on the basis of a stipulation of the parties and the other appears to be based upon a hearing in which both parties participated, we shall assume, in the absence of an affirmative showing to the contrary, that the case was properly settled after a hearing on a motion, and that the order allegedly based on a stipulation was entered by mistake.</block_quote> <bold>Fraud — action — fraudulent representations — sufficiency of</bold> <bold>evidence</bold>. <block_quote> 3. In an action based on a fraudulent representation, the court properly dismissed the case on motion of defendant where evidence failed to establish such fraudulent representation or that plaintiff relied thereon.</block_quote>

<bold>Automobile — negligence of driver — violation of statute —</bold> <bold>left turn in intersection</bold>. <block_quote> 1. Defendant motorist was guilty of negligence as a matter of law where, under the facts of the case, he made a left-hand turn in an intersection when a vehicle approaching from the opposite direction was so close thereto as to constitute an immediate hazard.</block_quote> <bold>Negligence — imputed negligence — right to control — bailee</bold> <bold>of motorcycle</bold>. <block_quote> 2. Where plaintiff was riding on a motorcycle, of which he was a bailee, behind the operator of the motorcycle, whom he had asked to drive it, the court under all the facts in the case did not err in instructing the jury, as a matter of law, that the negligence, if any, of the operator was imputed to plaintiff.</block_quote>

<bold>Automobile — contributory negligence of driver — failure to</bold> <bold>approach hill crest at reduced speed — proximate cause of</bold> <bold>accident</bold>. <block_quote> 1. Failure to approach a hill crest at a reduced speed, as required by M.S.A. <cross_reference>169.14</cross_reference>, subd. 3, is not the proximate cause of an accident where the collision occurred on a downgrade one-tenth of a mile after the hill crest had been passed.</block_quote> <bold>Same — same — excessive speed — question for jury</bold>. <block_quote> 2. Where the uncontradicted testimony of witnesses was that plaintiffs' automobile was traveling between 45 and 50 miles per hour, the<page_number>Page 538</page_number> physical facts here shown are not so conclusive as to establish plaintiffs' contributory negligence as a matter of law.</block_quote> <bold>Evidence — opinion of attending physician — admissibility</bold>. <block_quote> 3. It was not error to permit the attending physician to state his opinion as to the cause of physical injuries based on his examination of plaintiff where plaintiff had not complained of such injuries to the original attending physician, but had indicated to nurses that such injuries existed, although she did not then realize the cause thereof.</block_quote> <bold>Appeal and error — review — conversation between witness and</bold> <bold>juror — prejudicial effect</bold>. <block_quote> 4. During the trial, one of plaintiff's doctors who testified for her was seen talking to one of the jurors on the case. The court promptly questioned both doctor and juror and was satisfied that they had not discussed the case. Defendants' counsel stated in open court that he was willing to waive any point about it, after which the trial proceeded. <italic>Held</italic> no reversible error.</block_quote> <bold>Damages — not excessive</bold>. <block_quote> 5. The jury returned a verdict for plaintiff of $21,000. The court, on a finding that the verdict was excessive and was rendered under the influence of passion and prejudice, reduced the verdict to $18,000. Plaintiff's injuries were substantial. The record fails to show anything that might arouse passion and prejudice. Verdict <italic>held</italic> not excessive.</block_quote> <bold>Parties — bringing in additional party defendant — right of</bold> <bold>dismissal as to party</bold>. <block_quote> 6. Where, on motion of plaintiff, a third party is brought in as an additional party defendant under § <cross_reference>540.16</cross_reference>, plaintiff has the same right to dismiss as to such party prior to trial as if such third-party defendant had been originally joined in the action.</block_quote>

<bold>Appeal and error — appealable order</bold>.