Volume 238 — Minnesota Reports

<bold>Automobiles — cause of collision — failure of</bold> <bold>driver to dim lights — question for jury</bold>. <block_quote> 1. In action to recover damages for the wrongful death of plaintiff's decedent, which occurred when an automobile driven by decedent collided with grain box on defendants' approaching truck on a tarvia-paved trunk highway at night, the causal relationship between defendant truck driver's violation of M.S.A. <cross_reference>169.61</cross_reference> in failing to dim truck's headlights when meeting decedent's car and the collision presented a jury issue.</block_quote> <bold>Same — contributory negligence of driver —</bold> <bold>driving in left lane — question for jury</bold>. <block_quote> 2. Upon state of evidence in instant case, the issue of decedent's contributory negligence in driving onto the left lane of the highway in violation of § <cross_reference>169.18</cross_reference> was for the jury, and it was error for trial court to dismiss plaintiff's action at the conclusion of plaintiff's case.</block_quote>

<bold>Equity — doctrine of laches — application in</bold> <bold>legal action</bold>. <block_quote> 1. Where only strictly legal rights are in controversy and an action is brought within the time prescribed by our statute of limitations, the equitable doctrine of laches has no application.</block_quote> <bold>Same — same — application to equitable defense</bold> <bold>in legal action</bold>. <block_quote> 2. Where equitable relief is sought in an action, the doctrine of laches may apply to such equitable relief, even though the statute of limitations has not run so as to bar the main action, where a delay in bringing the action has so adversely affected a party that it would be inequitable to grant the relief.</block_quote> <bold>Same — same — necessity of evidence of</bold> <bold>prejudice</bold>. <block_quote> 3. While evidence of prejudice is not always essential before the doctrine of laches may be applied, it is a circumstance of importance in determining whether a party has been guilty of laches that the situation of the parties has changed, or that material witnesses have died, or that because of lapse of time evidence has otherwise been lost, so that the ascertainment of essential facts is made difficult, and the exact facts upon which the rights of the parties depend must necessarily be in doubt.</block_quote> <bold>Same — same — evidence of prejudice —</bold> <bold>death of witness</bold>. <block_quote> 4. Before the doctrine of laches may be applied on account of prejudice resulting from the death of witnesses, it must appear that such prejudice has been the result of unreasonable delay. Where the death of witnesses occurs before there is unreasonable delay, such death, standing alone, cannot be used as the basis for application of the doctrine.</block_quote> <bold>Release — avoidance — mutual mistake —</bold> <bold>unknown injuries</bold>. <block_quote> 5. Where the parties contract for a release of all claims for known injuries, the release is a bar to recovery for unknown consequences of known injuries, but is not a bar to recovery for unknown injuries not<page_number>Page 238</page_number> within the contemplation of the parties at the time of contracting for such release. Where a release expressly covers unknown injuries, it does not bar an action for such unknown injuries if it can be shown that such unknown injuries were not within the contemplation of the parties when the settlement was agreed upon, but if the parties in fact intentionally agree upon a settlement for such unknown injuries such release is binding. Whether the parties intended the release to cover unknown injuries is usually a question of fact.</block_quote>

<bold>Boundaries — establishment — practical</bold> <bold>location — sufficiency of evidence</bold>. <block_quote> In a boundary dispute, it is held that the evidence to establish a boundary line by practical location is so clear, positive, and unequivocal that the court did not err in establishing such boundary.</block_quote>

<bold>Insurance — fire insurance — change of</bold> <bold>ownership of property covered — effect</bold>. <block_quote> 1. Whether change of ownership of a firm would make a policy of insurance carried on the firm property void or voidable at the election of the insurer is purely academic in this case as the insurer paid the full amount of the policy to one of the partners.</block_quote> <bold>Same — same — insurable interest —</bold> <bold>partnership property</bold>. <block_quote> 2. It is the general rule that an insurable interest exists in both the partnership and the partners and that a partner has an insurable interest in the firm property which will support a policy taken out thereon for his own benefit.</block_quote> <bold>Same — contract — personal nature</bold>. <block_quote> 3. Insurance policies are merely personal contracts between the insurer and the insured. They appertain to the person or party to the contract, and not to the thing which is subjected to the risk against which the owner is protected.</block_quote> <bold>Same — same — same</bold>. <block_quote> 4. In the absence of assignment or express stipulation of the parties to such an effect, contracts or policies of insurance do not attach to or run with the property insured, whether the property is real or personal.</block_quote> <bold>Contracts — construction — implied provisions</bold> <bold>— indispensable to intention of parties</bold>. <block_quote> 5. Whatever is necessarily implied in a contract is as much a part thereof as if expressly stated therein, but the implication must result from the language employed in the instrument or be indispensable to carrying the intention of the parties into effect.</block_quote> <bold>Insurance — fire insurance — insurance on</bold> <bold>partnership equipment — whether asset of</bold> <bold>partnership</bold>. <block_quote> 6. Where defendant sold a half interest in his medical practice to plaintiff, and where at the time of the transaction defendant carried<page_number>Page 275</page_number> fire insurance coverage on his office equipment, and where at the same time the plaintiff asked defendant, and this was the only conversation about insurance, "Is this equipment covered by insurance?" and received the reply that defendant thought there was five or six thousand dollars on it, and where the partnership equipment was totally destroyed by fire and the defendant received the full amount of the policy; <italic>held</italic> that the policy under all the facts of the case was not an asset of the partnership and that, therefore, plaintiff was not entitled to receive one-half of the proceeds of the policy.</block_quote>

<bold>Automobiles — negligence of driver — failure</bold> <bold>to keep proper lookout</bold>. <block_quote> 1. In action arising out of intersection collision occurring when appellant's automobile, in which plaintiff was a passenger, was traveling on an arterial highway and collided with another automobile traveling on an intersecting highway, which automobile failed to stop for stop sign, record examined and <italic>held</italic> that, since there was evidence from which the jury might reasonably find that the driver on the arterial highway was negligent in failing to keep a proper lookout and that such negligence was a contributing proximate cause of the collision, trial court properly denied appellant's motion for judgment notwithstanding the jury's verdict against him.</block_quote> <bold>Same — reduced-speed statute —</bold> <bold>construction</bold>. <block_quote> 2. In an arterial highway intersection case such as this, where the speed of the driver on the arterial highway was prima facie lawful under M.S.A. <cross_reference>169.14</cross_reference>, subd. 2, and where the application of the reduced-speed statute (§ <cross_reference>169.14</cross_reference>, subd. 3) was predicated solely upon the presence of an intersection and none of the other factors enumerated in § <cross_reference>169.14</cross_reference>, subd. 3, were present in the case, to hold that the reduced-speed statute requires the driver on the arterial highway to always reduce his speed when approaching and crossing an intersection protected by stop signs would be both unreasonable and impractical and such an intention will not be ascribed to the legislature.</block_quote> <bold>Same — same — application</bold>. <block_quote> 3. Under circumstances presented, trial court should have instructed the jury that provisions of reduced-speed statute were not applicable until such time as appellant reasonably should have seen that approaching automobile on intersecting highway was not going to stop and danger was imminent unless he reduced his speed. Therefore, it was error to instruct the jury that provisions of reduced-speed statute were applicable if jury found that appellant saw the approaching automobile before he entered the intersection. Trial court's failure to<page_number>Page 293</page_number> properly qualify the instruction after appellant's timely objection thereto <italic>held</italic> to constitute reversible error.</block_quote>

<bold>Evidence — uncontradicted testimony —</bold> <bold>effect</bold>. <block_quote> 1. The unimpeached and uncontradicted testimony of a witness may not be disregarded by the court.</block_quote> <bold>Contracts — validity — note and mortgage</bold> <bold>inferior to HOLC loan</bold>. <block_quote> 2. A second mortgage, taken as part of a refinancing transaction together with bonds of the Home Owners' Loan Corporation in a redemption from a foreclosure sale, is not void if taken with the knowledge and consent of the Home Owners' Loan Corporation but is void if secretly taken or fraudently exacted.</block_quote>

<bold>Automobiles — contributory negligence —</bold> <bold>question for jury</bold>. <block_quote> 1. Under the facts presented in this personal injury action, plaintiff's contributory negligence was a question for the jury.</block_quote> <bold>Same — same — cases distinguished</bold>. <block_quote> 2. Present fact situation distinguished from fact situation in Henry v. Hallquist, <cross_reference>226 Minn. 39</cross_reference>, <cross_reference>31 N.W.2d 641</cross_reference>, and Dragotis v. Kennedy, <cross_reference>190 Minn. 128</cross_reference>, <cross_reference>250 N.W. 804</cross_reference>.</block_quote>