Volume 236 — Minnesota Reports

<bold>Pardon — commutation of sentence — revocation — waiver of</bold> <bold>right to notice or hearing</bold>. <block_quote> Under the terms of the commutation of sentence issued to petitioner, the pardon board had the authority to revoke the commutation where petitioner had expressly waived any right to notice or hearing on the question of the revocation thereof.</block_quote>

<bold>Judgment — notwithstanding verdict — view of evidence on</bold> <bold>motion</bold>. <block_quote> 1. A motion for judgment notwithstanding the verdict, whether made with respect to negligence or contributory negligence, accepts the view of the evidence most favorable to the verdict and admits every inference reasonably to be drawn from such evidence, as well as the credibility of the testimony for the adverse party; and if the application of this rule, <italic>in the light of the evidence as a whole</italic>, discloses a reasonable basis for the verdict, the motion must be denied.</block_quote> <bold>Evidence — weight and credibility</bold>. <block_quote> 2. Truthful testimony may come from a bad source, and there is no arbitrary rule for measuring its credibility or persuasive weight.</block_quote> <bold>New trial — inadvertent error in instruction — necessity of</bold><bold>seasonable objection</bold>. <block_quote> 3. Although a formal exception need not be taken to an inadvertent omission or error in a trial court's instruction to the jury, such omission or error is no ground for granting a new trial unless the trial court's attention has been seasonably directed thereto in some manner.</block_quote> <bold>Evidence — documentary — photograph — foundation for</bold><bold>admission — discretion of court</bold>. <block_quote> 4. The adequacy of evidence required to establish that a photograph accurately portrays actual conditions in issue, as a foundation for its admission into evidence, rests in the sound discretion of the trial court.</block_quote> <bold>New trial — on issue of damages only — passion and prejudice</bold><bold>in award</bold>. <block_quote> 5. In the exercise of a sound discretion, the trial court may, by reason of passion and prejudice exhibited in the award of excessive (or inadequate) damages, grant a new trial upon the sole issue of damages when it appears upon the evidence that the other issues, wholly unaffected by passion and prejudice, have been thoroughly litigated and<page_number>Page 87</page_number> justly determined, so that a right of recovery has been clearly established.</block_quote>

<bold>Eminent domain — reasonable necessity or convenience</bold>. <block_quote> 1. Although lands may not be taken by eminent domain unless such taking appears to be <italic>necessary</italic>, it is well settled in this jurisdiction that there need be no showing of absolute or indispensable necessity, but only that the proposed taking is <italic>reasonably necessary or convenient</italic> for the furtherance of the end in view.</block_quote> <bold>Same — same — public service corporation</bold>. <block_quote> 2. By M.S.A. <cross_reference>222.36</cross_reference>, <cross_reference>300.04</cross_reference>, this rule of reasonable necessity or convenience is made expressly applicable to a public service corporation, which in the exercise of a right of eminent domain for the furtherance of its corporate public purpose is required by statute (§ <cross_reference>117.07</cross_reference>) to establish that its proposed taking of land is necessary.</block_quote> <center> ON APPEAL FROM CLERK'S TAXATION OF COSTS.</center><center> March 28, 1952.</center><bold>Costs — transcript for use before appellate court</bold>. <block_quote> 3. Costs paid or incurred for a transcript may be allowed only when such transcript was prepared exclusively for use before this court, was<page_number>Page 136</page_number> so used in fact, and was necessary to a proper determination of the matter presented for review.</block_quote> <bold>Same — same</bold>. <block_quote> 4. In the absence of a definite showing to the contrary, it will be presumed, in taxing costs, that a transcript was prepared exclusively for use before the appellate court when such transcript was actually so used and was necessary to the appeal.</block_quote>

<bold>Electricity — care required of company maintaining</bold> <bold>high-voltage wires</bold>. <block_quote> 1. The owner or operator of electric lines carrying heavy voltages of electricity is held to a high degree of care and must exercise care commensurate with the peril reasonably to be apprehended to those who may have occasion to come in proximity to them.</block_quote> <bold>Same — distributor as insurer</bold>. <block_quote> 2. The distributor of electricity is not an insurer against accidents or injuries.</block_quote> <bold>Same — care required of company maintaining high-voltage wires</bold> <bold>— duty to insulate</bold>. <block_quote> 3. It is the duty of an electric company which maintains high-voltage wires at places where people are likely to come in contact with them to guard against danger from such wires by effectively insulating them or by providing other sufficient safeguards; but it is required to provide such insulation or other safeguards only at those places where in the exercise of reasonable prudence and foresight it ought to anticipate that injury might result to someone in the absence of such protection.</block_quote> <bold>Same — same — changes by third party</bold>. <block_quote> 4. Where an electric distribution line has been safe until it is made dangerous by the act of a third person which could not reasonably have been anticipated by the distributor, negligence cannot be predicated upon the failure to make such line safe from the changes brought about by the action of such third party, in the absence of notice to the one responsible for maintenance of the line.</block_quote> <bold>Same — same — duty to erect signs</bold>. <block_quote> 5. The distributor of electricity is not required to erect signs warning of the high voltage of its lines unless it may reasonably be anticipated that people will come in close proximity to the lines.</block_quote><page_number>Page 197</page_number> <bold>Same — same — duty to inspect</bold>. <block_quote> 6. The degree of care imposed on a distributor of electricity requires reasonable and proper inspection to discover and correct defects in its lines and apparatus. The evidence in this case does not warrant a finding of negligence based on a failure to inspect.</block_quote> <bold>Same — same — knowledge of dangerous condition — burden of</bold> <bold>proof</bold>. <block_quote> 7. Where plaintiff seeks to predicate negligence on a claim that defendant's employes saw the close and dangerous proximity of its wires carrying a high voltage of electricity to the roof of a new building on which plaintiff was working, the burden rests on plaintiff to show not only that defendant's employes had the opportunity to look, but that if they did look they could have seen defendant's wires and their close proximity to the roof on which plaintiff was working.</block_quote> <bold>Negligence — inference of negligence — based on inferred</bold> <bold>fact</bold>. <block_quote> 8. An inference of negligence based on an inferred fact, of which there is neither evidence nor predominating probability, cannot safely be made.</block_quote>

<bold>School and school district — teacher — transfer to another</bold> <bold>position — authority of superintendent under city ordinance</bold>. <block_quote> 1. Under ordinance No. 8824, c. I, § 4, subsection 5, superintendent of schools of St. Paul may transfer a member of the teaching corps employed by the department of education of St. Paul from one position in the department to another therein for which such member is eligible, provided the transfer does not result in a diminution in salary or demotion in rank of the person transferred.</block_quote> <bold>Same — same — same — authority of superintendent under</bold> <bold>teachers tenure act</bold>. <block_quote> 2. There is nothing in the state teachers tenure act (M.S.A. 130.22 to 130.32) limiting or restricting the power of the superintendent of schools of the city of St. Paul to transfer a member of the teaching corps of the department of education of St. Paul from one position to another of equal rank therein where no diminution of salary is involved.</block_quote> <bold>Same — same — same — necessity of filing charges and hearing</bold> <bold>evidence</bold>. <block_quote> 3. There is nothing in school ordinances of St. Paul or the teachers tenure act requiring the filing of charges or the hearing of evidence in connection with the transfer of a member of the teaching corps of the department of education of St. Paul from one position in the department to another therein of equal rank and salary for which the person transferred is eligible, provided the requirements of the school ordinances have otherwise been complied with.</block_quote> <bold>Same — same — same — determination of equality in rank and</bold> <bold>salary</bold>. <bold>Appeal and error — dismissal of appeal — where issues have</bold> <bold>become moot</bold>. <block_quote> 4-5. Where plaintiff, a member of the teaching corps of the department of education of St. Paul, subsequent to the trial court's judgment, was assigned to an additional principalship under the school system and, as a result thereof, earned a salary in excess of that received<page_number>Page 354</page_number> in her former position; and where the specifications of ordinance No. 8824, c. I, §§ 12-C, 12-V, 13-A, and 13-C, and other evidence presented establish that her present position is equal if not superior in rank to her previous position, defendants' actions in making the additional assignment subsequent to the trial court's decision <italic>held</italic> to constitute full compliance with the school ordinances of St. Paul and the teachers tenure act. Consequently, the issues raised on appeal have become moot, and plaintiff's appeal should be dismissed.</block_quote>

<bold>Landlord and tenant — premises used in common by lessees —</bold> <bold>control by landlord</bold>. <block_quote> 1. There is a presumption that a landlord retains control over those portions of his premises which are intended for the common use of different lessees of his property. Such control may be established by direct evidence thereof or by reasonable inferences drawn from present circumstances.</block_quote> <bold>Same — same — duty of landlord to keep reasonably safe</bold>. <block_quote> 2. When a landlord reserves control of a portion of his premises for the common use of his tenants and their invitees, he is obligated to exercise ordinary care to keep the reserved portion in a reasonably safe condition for those entitled to its use.</block_quote> <bold>Same — same — same — evidence of failure</bold>. <block_quote> 3. Evidence that defendant landlord failed to provide proper facilities for closing door to elevator reserved for common use of his tenants and their invitees, and that method adopted by plaintiff for such purpose appeared practicable and reasonably free from danger, but led to accident and plaintiff's injuries, <italic>held</italic> sufficient to sustain finding that defendant failed to exercise ordinary care to keep elevator<page_number>Page 404</page_number> and door thereto in a reasonably safe condition for those for whose use they were intended.</block_quote> <bold>Same — same — same — class to whom obligation owed</bold>. <block_quote> 4. Where plaintiff had been directed by defendant's lessee to use elevator controlled by defendant as a means of access to lessee's premises in basement of defendant's property, the place where plaintiff's work was to be performed, and where all other means of access thereto had been forbidden him, plaintiff's use of elevator for this purpose held to be lawful and to bring him within the class of those to whom defendant owed the obligation of exercising ordinary care to maintain elevator and door thereto in a reasonably safe condition for their intended use.</block_quote> <bold>Negligence — contributory negligence — assumption of risk —</bold> <bold>questions for jury</bold>. <block_quote> 5. Where plaintiff's attempt to close elevator door by pulling down on upper section thereof appeared reasonably proper and free from danger or peril, and other facilities therefor had been removed or become defective, plaintiff's action in following this method <italic>held</italic> not to constitute contributory negligence or assumption of risk on his part as a matter of law, notwithstanding fact that he was aware of such defects and the possibility that if upper section of door closed suddenly his thumb might be caught between it and lower section thereof.</block_quote> <bold>Appeal and error — review — consideration of defense</bold> <bold>presented for first time</bold>. <block_quote> 6. On appeal, this court will not consider an issue or a defense presented here for the first time.</block_quote>

<bold>Divorce — custody of child — considerations determining —</bold> <bold>welfare of child</bold>. <block_quote> 1. The primary consideration in determining custody is the welfare of the child, and to this welfare the selfish and unselfish desires of the parents must be subordinated, without regard to which parent is to blame in making a divorce necessary.</block_quote> <bold>Same — division of property — homestead in joint tenancy</bold>. <block_quote> 2. Where homestead of parties was held in joint tenancy and consideration therefor was furnished almost exclusively by defendant husband, who was granted a divorce on his cross complaint, court did not err in permitting wife to retain her interest in the property.</block_quote> <bold>Same — support of minor children — payment of attorneys'</bold> <bold>fees</bold>. <block_quote> 3. Trial court did not err in its determination of the amount required to be paid by husband for the support of the minor children of the parties or in the amount required to be paid by him to plaintiff as counsel fees.</block_quote>

<bold>Negligence — contributory negligence — submission to jury</bold>. <block_quote> 1. In personal injury action, held not error for trial court to submit to jury question of plaintiff's contributory negligence.</block_quote> <bold>Automobile — negligence of driver — violation of ordinance —</bold> <bold>proximate cause of accident</bold>. <block_quote> 2. Upon state of evidence in instant case, proximate relationship between plaintiff's violation of a city ordinance and the accident in question presented a jury issue, and it was not error to instruct jury with respect to the ordinance.</block_quote> <bold>Evidence — scope of cross-examination — discretion of court</bold>. <block_quote> 3. The manner and scope of inquiry on cross-examination is a matter resting largely within the sound discretion of the trial court, and unless a clear abuse of discretion is shown its ruling will not be reversed on appeal.</block_quote>

<bold>Limitation of actions — statute of limitations — part payment</bold> <bold>— burden of proof</bold>. <block_quote> 1. Where a promissory note shows on its face that it is more than six years past due, if the holder relies upon part payment to avoid the bar of the statute of limitations, the burden is on him to prove it. In the instant case, trial court's finding against plaintiff on this issue <italic>held</italic> justified by the evidence.</block_quote> <bold>Same — same — effect of absence from state — statute</bold> <bold>construed</bold>. <block_quote> 2. The words "he departs from and resides out of the state" as used in M.S.A. <cross_reference>541.13</cross_reference> mean he departs from and acquires a domicile out of the state. A departure from the state which involves merely a temporary sojourn elsewhere, as distinguished from the acquirement of a new domicile, is insufficient to toll the statute of limitations. Whether a person departs from the state to domicile himself elsewhere is generally a fact question. Finding that note was outlawed and statute of limitations was not tolled in instant case <italic>held</italic> justified by the evidence.</block_quote>

<bold>Libel — published words — libelous per se — determination of</bold> <bold>defamatory meaning</bold>. <block_quote> 1. Published words which injure the reputation of a person, expose him to contempt, or degrade him in society are, if untrue, libelous per se, although they involve no imputation of crime. Words, which by themselves have an innocent meaning, in connection with surrounding circumstances may convey a defamatory meaning to those familiar with such circumstances. Whether defamatory meaning is conveyed is dependent upon how ordinary men understand the language used in the light of surrounding circumstances, and this question is ordinarily for the jury.</block_quote> <bold>Same — same — determination of defamatory meaning — term</bold> <bold>"deficit in funds."</bold> <block_quote> 2. Allegation in complaint that defendant caused to be published in a newspaper an article wherein it was stated that check received from insurance company was in payment of bond covering plaintiff at time he was employed by defendant "to take care of deficit in funds" <italic>held</italic><page_number>Page 508</page_number> susceptible of conveying a defamatory meaning, and hence, if untrue, sufficient to support an action for libel.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 3. Term "deficit in funds" <italic>held</italic> broad enough to cover shortage due to defalcations or misappropriations, as well as to shortage occasioned by shrinkage, losses, costs, or other like items.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 4. Whether the term "deficit in funds" was intended to convey a defamatory meaning must rest upon jury's determination of how ordinary men would have understood its use in published article in the light of surrounding circumstances present at time of publication.</block_quote> <bold>Same — action — truth as a bar — establishment of facts</bold>. <block_quote> 5. Allegations of complaint examined and <italic>held</italic> not to establish truth of published article alleged to be libelous. Until <italic>claimed deficit in funds for which obligor on</italic> <italic>plaintiff's bond became responsible</italic> is established as a fact, published article expressing such a conclusion cannot be said to be a publication of the truth so as to bar an action for libel based thereon.</block_quote>