Volume 248 — Minnesota Reports

<bold>Appeal and error — review — scope of review</bold>. <block_quote> 1. An assignment of error that the lower court erred in refusing to grant a new trial is insufficient to raise any question other than whether the evidence justifies the verdict or finding. While defects in the assignments of error cannot properly be corrected in a reply brief, since the questions raised by the appellant were fully briefed and argued by the respondents and in view of our discretion, we have considered all the questions raised on the appeal.</block_quote> <bold>Automobiles — negligence of driver — proximate cause of</bold> <bold>accident</bold>. <block_quote> 2. Looking to the record in its entirety there is ample evidence from which the jury could reasonably conclude that the sole and only proximate cause of the accident in the instant case was the negligence of the defendant Degner.</block_quote> <bold>Trial — jury — submission on special verdict</bold>. <block_quote> 3. Under Rule 49.01 of Rules of Civil Procedure, when a case is submitted to the jury on a special verdict, if a party is of the opinion that the questions proposed do not adequately cover the case, he may propose additional ones for submission to the jury, if he does so before it retires; otherwise he waives his right to a trial by jury on such issues.</block_quote> <bold>Automobiles — two collisions — only one in issue</bold>. <block_quote> 4. While in the instant case it appears that there were two collisions, the first a head-on collision of considerable force, and the second a collision from behind of much less significance, a fair and impartial reading of the record in its entirety as well as the instructions to the jury clearly indicates that the only collision in issue and the only one upon which the jury was to base its verdict was the first or head-on collision.</block_quote> <bold>Same — negligence of driver — proximate cause of accident</bold>. <block_quote> 5. Where a case is submitted to the jury on the theory that there was but one collision and the jury finds that the negligence of one of<page_number>Page 60</page_number> the defendants was not a proximate cause of the collision, then such negligence could not be considered the proximate cause of the injuries resulting from the collision itself.</block_quote> <bold>Damages — not excessive</bold>. <block_quote> 6. Upon the record here, <italic>held</italic> that the verdict is not excessive.</block_quote>

<bold>Workmen's compensation — coverage of act — injury sustained</bold> <bold>by employee while driving home</bold>. <block_quote> Where bus driver employed by transit company was, in addition to regular wage rate, paid traveltime from bus terminal to and from relief point where he would begin and end actual work, such employee, who finished work at relief point and was injured while driving his personal car on way home, was not injured while engaged in a "regularly furnished" or paid transportation by employer within the meaning of M.S.A. 1949, § <cross_reference>176.01</cross_reference>, subd. 11, since record establishes that transportation time provided by employer was limited to transportation between bus terminal and relief point and back again and not between home and place of work and back again.</block_quote>

<bold>Appeal and error — review — verdict</bold>. <block_quote> 1. A verdict must be accepted as final by both the trial court and the supreme court if it has reasonable support in the evidence. <italic>Held</italic>, under the facts and circumstances of this case the trial court properly denied defendant's alternative motion for a judgment notwithstanding the verdict or for a new trial and his motions for a directed verdict at the close of plaintiffs' case and at the close of the testimony.</block_quote> <bold>Brokers — right to commission — effect of failure to disclose</bold> <bold>pertinent facts</bold>. <block_quote> 2. A real estate agent must deal fairly with his principal, and if he presents a person known to be incapable of performance and fails to disclose this or other pertinent facts to his principal, he is guilty of fraud and bad faith and forfeits his right to compensation. The principal may show the prospective purchaser's lack of financial worth, his inability or failure to perform the contract, and that it would not have been entered into had the true facts been known prior to the execution of the contract. <italic>Held</italic>, where the prospective purchaser's ability to raise the purchase price was contingent upon the outcome of a lawsuit or securing the money from her husband who was absent from the country at the time, and the real estate agent having knowledge of these facts failed to disclose them to his principal, the jury was entitled to find that he had forfeited his right to compensation.</block_quote> <bold>Evidence — admissibility — proof of agreement to purchase</bold> <bold>another house</bold>. <block_quote> 3. Questions of materiality and relevancy of evidence rest largely in the discretion of the trial court and its determination must control unless practical justice requires otherwise. <italic>Held</italic>, the trial court did not err in admitting evidence that the principals, relying upon the prospective purchaser's ability to raise the money required by the earnest money contract, had obligated themselves to purchase another house and of the extent of that obligation.</block_quote>

<bold>Contracts — implied in fact</bold>. <block_quote> 1. A contract implied in fact is a true contract requiring a meeting of the minds the same as an express contract.</block_quote> <bold>Same — same — effect of misrepresentation</bold>. <block_quote> 2. A material misrepresentation prevents the establishment of a contract implied in fact the same as an express contract for the reason that there never has been a meeting of the minds.</block_quote> <bold>Same — same</bold>. <block_quote> 3. The question of whether there is a contract implied in fact usually is to be determined by the trier of fact as an inference of fact to be drawn from the conduct of the parties.</block_quote><page_number>Page 185</page_number> <bold>Same — same</bold>. <block_quote> 4. Mutual assent may be manifested wholly or partly in written or oral words or partly in written or oral words and partly by the conduct of the parties. It may be partly expressed in words and partly implied in fact from acts and circumstances.</block_quote> <bold>Same — same — sufficiency of evidence</bold>. <block_quote> 5. The evidence in this case sustains a finding that there was a contract implied in fact that defendant would pay plaintiff the reasonable value of his services and that there was not such a misrepresentation as to avoid the establishment of such contract.</block_quote> <bold>Trial — findings of fact — effect of denial of motion to</bold> <bold>amend</bold>. <block_quote> 6. Where the evidence would sustain a finding of fact, denial of a motion to amend the findings is equivalent to a contrary finding.</block_quote> <bold>Contracts — implied in fact — burden of proving</bold> <bold>misrepresentation</bold>. <block_quote> 7. The burden rested on defendant to establish the defense of misrepresentation.</block_quote> <bold>Same — same — sufficiency of evidence</bold>. <block_quote> 8. The evidence sustains the court's findings as to the reasonable value of plaintiff's services.</block_quote> <bold>Same — same — same</bold>. <block_quote> 9. Where the court finds plaintiff is entitled to recover on the theory of a contract implied in fact and such determination is sustained by the evidence, there is no need to determine whether plaintiff would be entitled to recover as well on the theory of quasi-contract or unjust enrichment.</block_quote>

<bold>Workmen's compensation — proceedings — review — findings of</bold> <bold>Industrial Commission</bold>. <block_quote> 1. It is the function of this court on appeal from a decision of the Industrial Commission to determine whether the evidence is such that the commission might reasonably have come to the conclusion which it did. If so, the findings will not be disturbed unless they are manifestly contrary to the evidence or unless consideration of the evidence and inferences permissible therefrom would clearly require reasonable minds to adopt a contrary conclusion.</block_quote> <bold>Same — employer-employee relationship — sufficiency of</bold> <bold>evidence</bold>. <block_quote> 2. In view of the entire record in the instant case we cannot say as a matter of law that the Industrial Commission erroneously gave controlling weight to certain conversations and conduct between the alleged employer and a third party while excluding from consideration evidence pertaining to the employee's reasonable and good-faith belief that he was contracting with said employer.</block_quote>

<bold>Divorce — custody of child — considerations determining</bold>. <block_quote> 1. Stability in the home surroundings and in parental supervision of a child of tender years is an important factor which has a deep and lasting effect upon the child's emotional life and development, and that stability, <italic>after it</italic> <italic>has once been maintained over a period of years</italic>, should not be disturbed by a change of custody unless other paramount considerations demand a change for the child's welfare.</block_quote> <bold>Same — same — visitation rights</bold>. <block_quote> 2. In determining or limiting the custodial or visitation rights relating to a minor child, the court may properly take into consideration a parent's wilful violation of its decrees.</block_quote><page_number>Page 304</page_number> <bold>Same — same — same</bold>. <block_quote> 3. A trial court is vested with a broad discretion in determining what custodial arrangements best serve the welfare of a child, and since the determination of the facts are within the trial court's province, an appellate court will interfere with the exercise of that discretion only on a showing of arbitrary action or a clear abuse of discretion.</block_quote>

<bold>Workmen's compensation — liability for compensation — notice</bold> <bold>of injury — trivial-injury doctrine</bold>. <block_quote> 1. Where an employee in the course of his employment sustains an apparently trivial injury which does not result in present disability and which no person of ordinary prudence, similarly situated, would reasonably anticipate as likely to cause future disability, but which injury in fact after a period of latency does cause future disability, the time for giving notice of the occurrence of the injury to the employer, pursuant to M.S.A. <cross_reference>176.141</cross_reference>, runs from the time when it becomes reasonably apparent that such injury has resulted in, or is likely to cause, compensable disability.</block_quote> <bold>Same — proceedings — determination of whether injury is</bold> <bold>trivial</bold>. <block_quote> 2. Whether an individual case comes within the trivial-injury rule is a question of fact to be resolved by the Industrial Commission.</block_quote>

<bold>Criminal law — review — necessity of printed record</bold>. <block_quote> Inasmuch as no printed record has been submitted to this court for review in the above-entitled matter, this court has no alternative but to grant the state's motion to vacate the writ of error.</block_quote>