Volume 251 — Minnesota Reports

<bold>Insurance — fire — insurable interest — statements of person</bold> <bold>in possession</bold>. <block_quote> 1. In an action brought to recover on an insurance policy after destruction of the insured property by fire, where one of the issues is whether the named insured has an insurable interest in the property, statements and acts of a person in possession of the property are admissible as verbal acts characterizing his possession.</block_quote> <bold>Conspiracy — destroying property by fire — circumstantial</bold> <bold>evidence</bold>. <block_quote> 2. A conspiracy between two or more persons to destroy insured property by an incendiary fire may be established by circumstantial evidence.</block_quote> <bold>Same — acts of coconspirator — admissibility of evidence</bold>. <block_quote> 3. Ordinarily, evidence of acts or declarations of a coconspirator should not be admitted until a prima facie case showing existence of a conspiracy has been established by evidence apart from such acts and declarations, but the order of proof is a matter within the discretion of the trial court, and, if a conspiracy is subsequently proved, there is no error.</block_quote> <bold>Same — destroying property by fire — circumstantial evidence</bold>. <block_quote> 4. In establishing a conspiracy, it is enough if the circumstances shown warrant an inference of concerted conduct.</block_quote> <bold>Same — acts of coconspirator — admissibility of evidence</bold>. <block_quote> 5. Once a prima facie case of conspiracy is established, the acts, statements, and conduct of each coconspirator in furtherance of the common purpose may be shown as evidence against the other.</block_quote> <bold>Evidence — admissibility — deteriorated condition of premises</bold> <bold>— motive for incendiary fire</bold>. <block_quote> 6. Proof of the deteriorated condition of the insured premises<page_number>Page 75</page_number> is admissible on the issue of motive for destroying the property by an incendiary fire.</block_quote> <bold>Conspiracy — acts of coconspirators — increase in risk of</bold> <bold>fire — when issue for jury</bold>. <block_quote> 7. When a prima facie case of a conspiracy or common purpose to destroy the insured premises is established, the question of whether the acts of one of the coconspirators in furtherance of the common purpose increased the risk of loss was properly submitted to the jury.</block_quote> <bold>Evidence — admissibility — expert opinion — fire marshal</bold> <bold>trained in detecting incendiary fires</bold>. <block_quote> 8. Admission of expert opinion of a deputy fire marshal trained in detecting incendiary fires that acts of one of coconspirators increased risk of fire was not reversible error. Nor was it error to admit the opinion of such expert that a delayed-action fire could be started with material purchased by one of coconspirators shortly before fire occurred.</block_quote> <bold>Trial — cross-examination — prejudicial misconduct of</bold> <bold>counsel</bold>. <block_quote> 9. Misconduct of opposing counsel in asking plaintiff on cross-examination whether she had had trouble with other insurance and whether she had had a fire in other property she owned, while improper, was not so prejudicial in this case as to require a new trial.</block_quote> <bold>Same — instructions</bold>. <block_quote> 10. Instructions of the court examined and <italic>held</italic> to be without error.</block_quote> <bold>New trial — newly discovered evidence — discretion of court</bold>. <block_quote> 11. Whether a new trial should be granted on the ground of newly discovered evidence lies largely within the discretion of the trial court.</block_quote>

<bold>Workmen's compensation — action by employee against third</bold> <bold>person — right of employer to intervene</bold>. <block_quote> 1. Under M.S.A. 1949, § <cross_reference>176.06</cross_reference>, subd. 2, if an employee entitled to and receiving compensation benefits under the Workmen's Compensation Act avails himself of the right, where legal liability exists, to take lawful action against a third-party tortfeasor, the trial court is given discretionary power to allow the employer, or its compensation insurer, to intervene in the action if the employee fails to prosecute the action diligently or it is otherwise necessary to protect the subrogation rights of the employer.</block_quote><page_number>Page 144</page_number> <bold>Same — same — subrogation of employer — extent</bold>. <block_quote> 2. The subrogation rights of an employer, or his compensation insurer, are not limited merely to the recovery of periodic disability benefits paid, but such subrogation rights to recover compensation benefits paid include payments for medical expenses.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 3. Section <cross_reference>176.06</cross_reference>, subd. 2, by its terms permits an employee to accept workmen's compensation and sue a third-party tortfeasor, limiting employer's right of subrogation, aside from certain suit costs, expenses, and attorney's fees, to the amount of workmen's compensation benefits paid to the employee or contributed on his behalf, the purpose of its subrogation provision being to reimburse the employer to the extent of his contributions under the act, the workman taking the excess.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 4. The testimony, and the court's instructions, made available in the instant case from the proceedings in the main trial coupled with the evidence disclosed by the record relative to plaintiff's agreement to protect intervenor's rights, as employer's insurer, during the progress of the trial amply support the trial court's conclusion that the jury's verdict at the first trial included an award for plaintiff's medical expenses, as special damages, and that the plaintiff thereby voluntarily made himself a trustee as to the compensation payments, including medical expenses, paid or contributed by the insurer.</block_quote> <bold>Same — same — same — apportionment of costs of action</bold>. <block_quote> 5. We are required in the present action to follow the procedure described in § <cross_reference>176.06</cross_reference>, subd. 2 (superseded by L. 1953, c. 755, § 6; M.S.A. <cross_reference>176.061</cross_reference>), and to apply the rule that, where either the employer or his workmen's compensation carrier has paid compensation benefits to an injured employee who sues and recovers from a third-party tortfeasor, the employer is entitled to reimbursement thereof, to the extent that recovery against the third party permits it, without an apportionment of attorney's fees, expenses, and costs, necessarily incurred, from the amount due the employer or his compensation insurer.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 6. Based upon the recovery made by employee in action against third-party tortfeasor, the insurer is entitled under § <cross_reference>176.06</cross_reference>, subd. 2,<page_number>Page 145</page_number> to receive the full amount of compensation benefits paid, including medical expenses, without deduction of attorney's fees, necessary expenses, or costs, incurred by the plaintiff at the first trial.</block_quote>

<bold>Damages — amount — excessive</bold>. <block_quote> 1. Verdict of $7,500 for injuries held excessive and new trial granted unless plaintiff consent that it be reduced to $4,000, in which event new trial is denied.</block_quote> <bold>Trial — instructions — failure to instruct on party's not</bold> <bold>calling medical witness</bold>. <block_quote> 2. An instruction that failure of party to call medical witness in his control permits jury to indulge in presumption that his testimony would have been unfavorable to party's contentions relative to injuries may be given in discretion of trial court when such a situation is presented; but, where it appears that such witness, who was plaintiff's doctor, was past age of 80 years and had retired from active practice, trial court's failure to give such instruction was not abuse of discretion.</block_quote> <bold>Evidence — irrelevant statement of witness — failure to</bold> <bold>strike</bold>. <block_quote> 3. Where plaintiff testified that she had experienced pain in her back immediately after accident, court's failure to strike a statement made by her after a question by her attorney to the effect that immediately<page_number>Page 218</page_number> after accident she had exclaimed "Oh, my back, what has happened" constituted harmless error, since such statement was merely cumulative of other testimony properly admitted relating to plaintiff's back injuries.</block_quote> <bold>Automobiles — negligence of driver — sudden stop for</bold> <bold>semaphore</bold>. <block_quote> 4. Where day was clear and streets dry, and there were no distracting circumstances, jury might properly find that driver of car, who brought car to such sudden stop for automatic semaphore that plaintiff was thrown against dashboard of car, was negligent in failing to keep a proper lookout and in failing to keep car under proper control.</block_quote>

<bold>Evidence — admissibility — telephone conversation</bold>. <block_quote> 1. Foundation for admission of telephone conversations may be established by showing recognition of voice. Identity may also be established by other surrounding facts or circumstances preceding or following the conversation, or the subject matter of the conversation may serve to establish identity of the party.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. Where a place of business installs a telephone and invites the public to use it by listing its name in a telephone directory, it is not essential to prove identity of the person answering for such business. Identity of the business itself is sufficient to render such conversation admissible.</block_quote> <bold>Principal and agent — authority of person answering telephone</bold> <bold>at place of business — presumption</bold>. <block_quote> 3. Where an employee of such place of business answers a call over the telephone and purports to act for such business, a presumption arises that such person has authority to act. The burden thereupon rests on the business establishment to rebut the presumption. In the absence of rebutting evidence, the presumption controls as a matter of law.</block_quote> <bold>Insurance — assignment of policy — necessity of consent —</bold> <bold>waiver</bold>. <block_quote> 4. Where a policy of insurance provides that assignment of interest under the policy shall not bind the insurer unless its consent is endorsed thereon, such consent is essential to a valid assignment, but a consent in writing may be waived by the insurer.</block_quote>

<bold>Judgments — by default — municipal court — when clerk may</bold> <bold>enter</bold>. <block_quote> 1. Rule 55.01 of the Municipal Court Rules of Civil Procedure provides that the clerk of municipal court is restricted to entering judgments by default to cases involving contracts for the payment of money only. These are instances where a definite contractual sum is involved and no discretionary determination of the amount due need be made. <italic>Held</italic> that a complaint which alleged the unlawful conversion of plaintiff's property and asked for $1,000 damages as the reasonable value of the property was not in contract but in tort and thus not a proper case for the entry of default judgment by the clerk of municipal court.</block_quote> <bold>Same — relief from final judgment in municipal court</bold>. <block_quote> 2. Rule 60.02(6) provides for relief from a final judgment for any other reason justifying relief than those reasons set forth in (1), (2), and (3) of Rule 60.02 as long as the party seeking such relief applies to the court within a reasonable time. What is a reasonable time depends upon the facts in each case.</block_quote> <bold>Same — by default — opening — grounds — judicial</bold> <bold>discretion</bold>. <block_quote> 3. Courts should be liberal in opening default judgments. Where a proposed answer sets forth a meritorious defense, where a reasonable excuse for the delay is shown, and where it appears that a party will not be prejudiced, the default should be opened.</block_quote><page_number>Page 462</page_number> <bold>Same — same — same — same — same</bold>. <block_quote> 4. Although the opening of default judgments is almost entirely within the sound discretion of the trial court, where it acts under a misapprehension of the law so that justice is denied, its action will be reversed on appeal. <italic>Held</italic>, in view of the particular facts of this case and in the absence of any reason for the trial court's denial of the motion to open the default, the judgment should be vacated.</block_quote>

<bold>Evidence — admissibility — hearsay — declaration against</bold> <bold>interest</bold>. <block_quote> 1. Declarations of persons since deceased as to facts relevant to the issue are admissible in evidence between third parties when it appears that such facts are opposed to pecuniary interests of the declarant and related to a matter of which he was personally cognizant and that he had no probable motive to falsify the facts. Whether foundation for admission of such declaration has been shown is a question addressed to the discretion of the trial court and to be admissible it should relate to a statement of the decedent which is definite, and distinctly import the fact of which it is offered as an assertion.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. The trial court did not abuse its discretion in sustaining an objection to a letter offered as a declaration against interest where the probative value of the letter did not depend for its veracity upon the statements contained therein but required explanation and depended upon the knowledge of the author.</block_quote> <bold>Same — same — same — letter distinguished from business</bold> <bold>record</bold>. <block_quote> 3. The letter described was in the nature of a casual inquiry and not of such a character as to give it the status of business entry so as to bring it within the business-records exception to the hearsay rule.</block_quote> <bold>Appeal and error — review — findings of trial court</bold>. <block_quote> 4. In considering the weight and sufficiency of the evidence it is unnecessary for an appellate court to detail the evidence in order to demonstrate the absolute correctness of the trial court's findings of fact. Its duty is performed when it has considered all the evidence in the light most favorable to the trial court's findings and has determined whether the trial court's findings are reasonably sustained by the evidence as a whole. Such findings should not be reversed on appeal unless they are manifestly and palpably contrary to the evidence and without reasonable support in the record.</block_quote><page_number>Page 563</page_number>

<italic>Attorney and client — disbarment of attorney — conviction of</italic> <italic>subornation of perjury</italic>.