Volume 242 — Minnesota Reports

<bold>Negligence — liability of possessor of land — alleged assault</bold> <bold>by third person — failure of action against third person —</bold> <bold>res judicata</bold>. <block_quote> 1. Where plaintiff sued defendant A and defendant B, alleging that the former had assaulted him and that the latter had negligently failed to prevent such assault, the judgment for defendant A is <italic>res judicata</italic> as to the fact that no assault was committed and requires this court to affirm the direction of the verdict in favor of defendant B.</block_quote> <bold>Appeal and error — review — grounds for decision — question</bold> <bold>raised for first time on appeal</bold>. <block_quote> 2. Where the district court disposed of an action against defendant recreational association on grounds other than the doctrine of <italic>res judicata</italic>, this court upon appeal can properly base its decision upon such a ground where the question raised for the first time on appeal is decisive of the controversy on the merits.</block_quote>

<bold>Insurance — coverage — failure to notify insurer of suit —</bold> <bold>estoppel</bold>. <block_quote> 1. In action brought by American Automobile Insurance Company as assignee of any rights its insured Gamble-Skogmo, Inc., may have had under a comprehensive general liability insurance policy issued by defendant St. Paul Mercury Indemnity Company by reason of a certain judgment rendered against Gamble-Skogmo, Inc., for negligence in a personal injury action, record examined and <italic>held</italic> to sustain trial court's finding that defendant Mercury was estopped to rely on breach of condition of its policy with respect to forwarding of suit papers as a bar to any recovery thereon.</block_quote> <bold>Same — same — rights between insurers — assumption of</bold> <bold>control of suit by liability insurer — estoppel to deny</bold> <bold>liability</bold>. <block_quote> 2. Various theories of estoppel advanced by defendant Mercury against plaintiffs considered in light of facts and circumstances presented and <italic>held</italic> that trial court properly rejected defendant Mercury's contention that plaintiffs are now estopped to assert any liability under the Mercury comprehensive general liability policy by reason of the accident, action, and judgment in question.</block_quote> <bold>Same — same — automotive and general liability hazard</bold> <bold>insurance — division of risk</bold>. <block_quote> 3. For the reasons stated in the opinion, the liability of Gamble-Skogmo resulting from the accident, action, and judgment in question did not arise out of the use or unloading of an automobile within the coverage provisions of the American automobile policy but involved a general liability risk covered by defendant Mercury's comprehensive general liability policy and, therefore, the judgment against defendant Mercury should be affirmed.</block_quote>

<bold>Pleading — complaint — amendment after responsive pleading —</bold> <bold>matter of discretion</bold>. <block_quote> 1. Wilful and wanton negligence is a reckless disregard of the safety of the person or property of another by failing <italic>after and not before</italic> discovering the peril to exercise ordinary care to prevent the impending injury. Upon the showing made by plaintiffs in support of their motions for leave to amend their complaints so as to charge the defendant with wilful and wanton negligence, it cannot be said that the court abused its discretion in denying the motions.</block_quote> <bold>Damages — adequacy of verdict</bold>. <block_quote> 2. Evidence examined and <italic>held</italic> insufficient to justify this court in holding that the trial court abused its discretion in denying the plaintiff Clark a new trial upon the ground that the verdict was inadequate and was rendered under the influence of passion or prejudice.</block_quote> <bold>Same — same</bold>. <block_quote> 3. Evidence examined and <italic>held</italic> insufficient to justify this court in holding that the trial court abused its discretion in denying the plaintiff Brannan a new trial upon the ground that the verdict was inadequate and was rendered under the influence of passion or prejudice.</block_quote>

<bold>Public utilities — rates — legislative control</bold>. <block_quote> 1. The legislature possesses plenary power to regulate the rates charged by public service corporations under its police powers, and although this power may be delegated to municipalities by home rule charters, such delegated powers are always subject to the paramount power of the legislature and may be suspended or abrogated whenever the legislature sees fit to exercise its reserve power.</block_quote> <bold>Same — same — same — delegation</bold>. <block_quote> 2. When the legislature delegates the power and authority to regulate rates to be charged by public service corporations, this authority, power, and duty is limited by and subject to the terms and limitations stated in the enabling legislation.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 3. In the absence of express legislative authority, a Minnesota municipality cannot deprive itself by contract of any governmental powers delegated to it by the legislature for public purposes.</block_quote> <bold>Same — same — same — same — exercise of powers</bold>. <block_quote> 4. Where the legislature has delegated certain powers and duties to the governing body of a municipality, in the absence of express legislative command, regulations duly enacted pursuant thereto need not be submitted to the electorate for approval.</block_quote> <bold>Same — same — same — same — authorizing ordinance —</bold> <bold>severability</bold>. <block_quote> 5. Where a portion of a municipal ordinance is held invalid, if the remainder of said ordinance is in harmony with the statute authorizing such regulatory ordinance and the ordinance is not rendered ineffective by the deletion of the offending portion, the balance of said ordinance is not vitiated but will remain in full force and effect.</block_quote><page_number>Page 303</page_number> <bold>Statutes — title — single subject</bold>. <block_quote> 6. The requirements of Minn. Const. art. <cross_reference>4</cross_reference>, § 27, are satisfied if an act does not include legislation which by fair intendment cannot be considered germane to the subject expressed in the title.</block_quote>

<bold>Arbitration and award — Minnesota arbitration act —</bold> <bold>substitution by agreement</bold>. <block_quote> 1. Minnesota arbitration act, M.S.A. c. 572, plainly preserves the common-law right of arbitration, and if the parties to an arbitration agreement have by their own action substituted a common-law arbitration for one within the terms of the statute, that agreement will be given effect.</block_quote> <bold>Same — powers of arbitrators</bold>. <block_quote> 2. Arbitrators derive their powers from the parties, and if the parties by their agreement do not insist that the applicable law shall govern the decision on the facts, the arbitrators may decide the dispute according to their own notion of justice without regard to the applicable law, and the parties are bound thereby.</block_quote> <bold>Same — demands — form of presentation</bold>. <block_quote> 3. It is not necessary that the demands arising from a controversy between parties which are to be submitted to arbitration be in the same specific form as required in a pleading. The only requirement is that the demands be sufficiently described as to be identifiable either from the terms of the contractual provision or with the aid of parol evidence if that be necessary.</block_quote> <bold>Same — award — review</bold>. <block_quote> 4. The matter of the required approval by the Interstate Commerce Commission of any revision of a pooling agreement arrived at pursuant to an arbitration award is not before a state court which is concerned only with the validity and interpretation of an arbitration clause in such agreement.</block_quote><page_number>Page 440</page_number> <bold>Same — same — effect</bold>. <block_quote> 5. Any arbitration award made within the scope of the authority of the arbitrators becomes a part of the contract which the parties voluntarily assented to on execution, and the parties are bound thereby.</block_quote>

<bold>Continuance — granting — discretion of trial court —</bold> <bold>appointment of general guardian</bold>. <block_quote> 1. In unlawful detainer proceedings in municipal court of the city of Minneapolis, where upon motion of defendant and her special guardian court has continued return date to permit such special guardian, vested with "all the powers of a General Guardian," to appear and defend action, <italic>held</italic> trial court did not abuse discretion in denying motion, on subsequent return date, for further continuance so that general guardian might appear and defend, no showing being made as to how general guardian might afford ward any greater protection than could such special guardian.</block_quote> <bold>Appeal and error — municipal court — judgment in unlawful</bold> <bold>detainer proceedings</bold>. <block_quote> 2. Appeals from judgments in unlawful detainer proceedings in municipal court of Minneapolis being governed by the rules of procedure relating to appeals from judgments in district court may be taken directly to this court.</block_quote><page_number>Page 565</page_number> <bold>Same — notice of appeal — unlawful detainer proceedings —</bold> <bold>lack of supersedeas bond — cost bond</bold>. <block_quote> 3. Notice of appeal from judgment in unlawful detainer proceedings in municipal court of Minneapolis does not stay the execution of a writ of restitution issued under such judgment, unless supersedeas bond be approved and filed pursuant to provisions of M.S.A. <cross_reference>605.15</cross_reference>. Ordinary cost bond in sum of $250, filed under § <cross_reference>566.11</cross_reference>, which governs appeals from justice court to district court where justice courts have jurisdiction in unlawful detainer proceedings, would not authorize stay of such proceedings instituted in municipal court of city of Minneapolis.</block_quote>