Volume 246 — Minnesota Reports

<bold>Appeal and error — review — failure of appellant to assign</bold> <bold>errors — question argued by respondent</bold>. <block_quote> 1. In a civil action where the appellant fails to specify his assignments of error as required by the rules of this court, he is ordinarily confronted with a rule that no question is presented to it; but, notwithstanding the rule, if respondent voluntarily argues a question argued by appellant, this court will consider it.</block_quote> <bold>Same — same — scope of review — appeal from judgment</bold>. <block_quote> 2. While the order denying the motion to amend findings and conclusions of law is not appealable, such order, or any intermediate order involving the merits or necessarily affecting the judgment appealed from, may be reviewed on appeal from the judgment.</block_quote> <bold>Evidence — value of automobile — right of owner to testify</bold>. <block_quote> 3. It is permissible in this state for the owner of an automobile to testify as to its value without laying any other foundation than that he<page_number>Page 2</page_number> is the owner thereof. Denying plaintiff the right as owner to testify as to the value of his automobile constitutes reversible error.</block_quote> <bold>Same — same — same</bold>. <block_quote> 4. While this court adheres to the rule that the owner of property either real or personal is presumptively acquainted with its value and may testify as to its value without any particular foundation being laid, it recognizes the rule quite generally applied that, if there is any apparent lack of knowledge on the part of the owner as to the value of his property, the same goes to the weight of the testimony given but not to the competency of that testimony.</block_quote> <bold>Same — same — determination in action for fraud</bold>. <block_quote> 5. It being the fair value which is sought to be arrived at in any case involving property values, it ought to be determined by reference to all relevant facts having probative value, and this applies to an action based on fraud and deceit.</block_quote> <bold>Damages — action for fraud — measure of damages</bold>. <block_quote> 6. The measure of damages in actions based upon fraud and deceit adopted and consistently applied in this state is the "out-of-pocket" rule, limiting the amount of recovery to the loss naturally and proximately resulting from the fraud, this usually being the difference between what the plaintiff parted with and what he got.</block_quote> <bold>Costs — in trial court — right to costs and disbursements —</bold> <bold>prevailing party</bold>. <block_quote> 7. Since the court below in determining the facts found fraud but no money damages, plaintiff was not as a matter of law entitled to an order for judgment with his costs and disbursements, having been denied money damages and thereby failing to qualify as the prevailing party.</block_quote>

<bold>Appeal and error — review — instructions not objected to</bold>. <block_quote> 1. Despite errors of fundamental law or controlling principle, a trial court's charge to the jury becomes the law of the case and is not subject to attack or review on appeal when such fundamental errors have not been <italic>seasonably</italic> and <italic>adequately</italic> called to the attention of the trial court — such as by appropriate objection or exception — or have not, as a minimum requirement, been assigned for the first time as error in the motion for a new trial. Rules of Civil Procedure, Rules 51 and <cross_reference>59.01</cross_reference>(6).</block_quote> <bold>Evidence — credibility of testimony — when jury may</bold> <bold>disregard</bold>. <block_quote> 2. The testimony of a witness may be disregarded if it contains inherent improbabilities or contradictions which, alone or in connection<page_number>Page 125</page_number> with other circumstances in evidence, furnish a reasonable ground for concluding that the testimony is not true.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. If the jury believes that a witness has knowingly and wilfully testified falsely as to any material fact, it may justifiably disregard his entire testimony except insofar as it is corroborated by other credible evidence.</block_quote> <bold>New trial — newly discovered evidence</bold>. <block_quote> 4. A motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court, which must be exercised cautiously and sparingly, and its decision will not be disturbed on appeal except for a clear abuse of discretion.</block_quote> <bold>Same — same</bold>. <block_quote> 5. If the same diligence which led to the discovery of the new evidence after trial would have led to discovery had such diligence been exercised before trial, a new trial need not be granted.</block_quote>

<bold>Minimum wages — establishment — prerequisite of valid order</bold>. <block_quote> Under M.S.A. <cross_reference>177.08</cross_reference> the making of rules and regulations governing the selection of members of an advisory board and the modes of procedure thereof as a prerequisite to the making of a valid order establishing minimum wages is mandatory under the express language of the statute, and a valid order establishing such minimum wages cannot be made without compliance with the statute.</block_quote>

<bold>Appeal and error — review — findings of trial court</bold>. <bold>Laches — application of doctrine — delay in seeking alimony</bold> <bold>after divorce</bold>. <block_quote> The Supreme Court will not reverse a finding having evidentiary support even though the court might find the facts differently if permitted to pass on them. The application of laches depends upon the facts of the particular case and rests largely with the discretion of the trial court; it is based on grounds of public policy which require for the peace of society the discouragement of stale demands. <italic>Held:</italic> Under the facts and circumstances presented here the trial court's decision based on the doctrine of laches must be affirmed.</block_quote>

<bold>Parent and child — custody — welfare of child</bold>. <block_quote> 1. In issue involving custodial rights of children, the rule of law that a mother's love and affection for child must yield to considerations of child's welfare has been applied where, through abandonment, neglect, or similar misconduct, future custody by parent would be detrimental to the welfare of the child.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. The welfare and best interests of the child and the legal and natural right of the parents must both be considered in a dispute as to its custody. In order to justify depriving a parent of the custody of a child in favor of third persons, there must be a grave reason growing out of neglect, abandonment, incapacity, moral delinquency, instability of character, or inability to furnish the child with needed care.</block_quote> <bold>Same — same — rights of parent</bold>. <block_quote> 3. There exists in the parent not a mere privilege but a right to the affection, comfort, and pride in his child.</block_quote> <bold>Same — same — same — third party acquiring custody by</bold> <bold>invalid means</bold>. <block_quote> 4. In action between parent and third party involving right of custody of infant, the question of fitness of third party to have custody is never reached when such third party has acquired custody by invalid means.</block_quote> <bold>Same — same — agreement transferring custody</bold>. <block_quote> 5. An agreement which, in effect, transfers from the natural mother to total strangers the right to keep, return, or otherwise dispose of her unborn child is contrary to public policy.</block_quote><page_number>Page 536</page_number> <bold>Same — same — placement of infant without assistance of</bold> <bold>welfare agency</bold>. <block_quote> 6. The practice of private placement of infants by physicians with nonrelatives without assistance of established welfare or social agency is disapproved.</block_quote>