Volume 254 — Minnesota Reports

<bold>Appeal and error — review — notice of appeal</bold>. <block_quote> 1. Where on appeal from judgment of conviction for violation of a city ordinance the notice of appeal is not served or filed within the time provided by M.S.A. <cross_reference>632.01</cross_reference>, the appeal must be dismissed for want of jurisdiction.</block_quote> <bold>Criminal law — stay of execution of sentence — effect on time</bold> <bold>for taking appeal</bold>. <block_quote> 2. A stay of execution of sentence does not extend the time for taking an appeal. The sentence in a criminal case is the judgment from which an appeal must be taken within the time provided by law.</block_quote>

<bold>Sales — installment sales — determination of price —</bold> <bold>distinction between cash and credit price</bold>. <block_quote> 1. The owner has the right to determine the price at which he will sell his property. He may fix one price for cash and another price for credit. A sale of personal property is, therefore, not a loan or a forbearance of money and is not within the usury law unless the sale is a mere form or device to evade the usury law.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. The increase of the credit price for the purposes of a conditional sales contract does not convert what otherwise would be a sale into a loan, and the fact that the credit price exceeds the cash price by a greater percentage than is permitted by the usury law does not make the transaction usurious for the very reason that the transaction is a sale and not a loan.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 3. The power to determine the extent of the increase of the credit over the cash selling price is incident to the owner's right to fix the latter and is a matter of contract between the parties. The owner in calculating the addition to the cash price in order to arrive at the credit price may consider all factors which influence vendors in that regard, such as profit, return on investment, overhead, handling charges, risks involved, insurance, sale discount of contract for deferred payments, and such other items as may properly find a place in ascertaining how a merchant may profitably sell upon time. This rule when applied to automobile sales involving a conditional sales contract is now limited, governed, and controlled by the Motor Vehicle Retail Installment Sales Act, L. 1957, c. 266 (M.S.A. <cross_reference>168.66</cross_reference>, et seq.).</block_quote> <bold>Usury — usurious contracts — test</bold>. <block_quote> 4. The test of a usurious contract is whether its performance will result in producing to the lender a greater return for the use of the amount loaned than is allowed by law and whether such result was<page_number>Page 63</page_number> intended. In deciding whether any given transaction is usurious or not, the courts will disregard the form which it may take, and look only to the substance of the transaction in order to determine whether all the requisites of usury are present, these requisites being: (1) An unlawful intent; (2) the subject matter which must be money or money's equivalent; (3) a loan or forbearance; (4) the sum loaned must be absolutely, not contingently, repayable; (5) and there must be an exaction for the use of the loan of something in excess of what is allowed by law.</block_quote> <bold>Same — same — same</bold>. <block_quote> 5. Whether a transaction constitutes a bona fide sale or a mere pretense to evade the usury laws is regarded as a question of fact. This court has never held as a matter of law that a sale involving a cash price plus a finance charge equalling a credit price is usurious. It has carefully distinguished between the situation involving a cash price plus a finance charge equalling a credit price and one which is closed wholly at a credit price, no cash price being involved.</block_quote> <bold>Sales — installment sales — statutory regulation of credit</bold> <bold>charges on automobiles</bold>. <block_quote> 6. The Motor Vehicle Retail Installment Sales Act was enacted by the 1957 legislature as a means of regulating the credit charge for the purchase of an automobile over a contractually specified period of time, and, by the controls and regulations therein provided, to standardize a maximum credit charge for the financing of automobile purchases in this state.</block_quote> <bold>Same — same — same</bold>. <block_quote> 7. The legislature has provided, through § <cross_reference>168.74</cross_reference>, constituting a part of the Motor Vehicle Retail Installment Sales Act, under what circumstances computation shall be made based upon descending balances. Section <cross_reference>168.74</cross_reference> is in no wise applicable to the facts of the instant case and we decline to follow plaintiff's contention that we have before us either a usurious contract or a contract wherein the maximum time price differential shall be computed on descending balances.</block_quote> <bold>Same — same — same</bold>. <block_quote> 8. The Motor Vehicle Retail Installment Sales Act is not an "interest statute." In the instant case the computation to be applied is governed by the provision contained in § <cross_reference>168.72</cross_reference>(b), providing that "the time price differential shall be computed proportionately." The<page_number>Page 64</page_number> proper method of computing the maximum time price differential under § <cross_reference>168.72</cross_reference> on a contract less than or greater than 1 year is the same as the method for computing the time price differential on a 1-year contract, and the maximum charge for a contract less than or greater than 1 year is to be computed according to the proportion (ratio) between the period of the contract under computation and 1 year.</block_quote>

<bold>Payment — evidence — burden of proof</bold>. <block_quote> 1. Defendant has the burden of proving payment of his admitted indebtedness to the decedent.</block_quote> <bold>Evidence — credibility — as fact question</bold>. <block_quote> 2. Whether the case made by the evidence of a party is one of fabrication and whether his version thereof is so inherently improbable as to be unworthy of belief are primarily for the jury and the trial court to determine.</block_quote> <bold>Appeal and error — review — findings of trial court</bold>. <block_quote> 3. Findings of fact based on conflicting evidence will not be disturbed on appeal unless manifestly and palpably contrary to the evidence as a whole; even though we might find the facts to be different if we had the factfinding function.</block_quote>

<bold>Trial — motion for directed verdict — when granted</bold>. <block_quote> 1. A motion for a directed verdict presents only a question of law. It contemplates, for the purposes of the motion, the credibility of the evidence for the adverse party and every inference which may reasonably be drawn from such evidence. When the motion is made on the ground of a manifest preponderance of the evidence, it should be denied if different persons might reasonably draw different conclusions from the evidence.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. The evidence in this case presents a fact issue as to whether defendant driver knew, or should have known, that his brakes were defective; hence, plaintiff was not entitled to a directed verdict and is not now entitled to judgment notwithstanding the verdict.</block_quote> <bold>Same — instructions — emergency rule — application</bold>. <block_quote> 3. Where the evidence is such that a jury may find either way on the question of whether a litigant has created an emergency, it is proper to instruct the jury on the sudden-emergency rule with directions that it is to be applied if the jury finds that the emergency was not created by the one who seeks to invoke the rule.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 4. The emergency rule exists for and is applied in situations where the actor either has no time to act deliberately or has such limited time that he cannot be expected to act with the same dispatch as usually would be required of him.</block_quote> <bold>Automobiles — negligence of driver — vicarious liability of</bold> <bold>owner — application of emergency rule</bold>. <block_quote> 5. Where the owner of a motor vehicle driven by an employee may be vicariously liable for negligence of employee, the master is entitled to the benefit of the emergency rule in determining whether<page_number>Page 83</page_number> the employee was negligent. The instruction in this case could not have misled the jury as to the proper application of the rule.</block_quote> <bold>New trial — grounds — newly discovered evidence</bold>. <block_quote> 6. Where the alleged newly discovered evidence is merely cumulative, contradictory, or impeaching of evidence adduced at the trial, there ordinarily is no abuse of discretion in denying a new trial based on such evidence.</block_quote> <bold>Same — same — same</bold>. <block_quote> 7. Before a new trial will be granted on the ground of newly discovered evidence, it should be made to appear positively, and not merely as a matter of conjecture and speculation, that evidence may be produced which is material upon an issue determined adversely to the moving party.</block_quote> <bold>Same — same — same</bold>. <block_quote> 8. The matter of granting a new trial upon the ground of newly discovered evidence rests largely in the discretion of the trial court. The inquiry of the appellate court is not whether, upon the record, a new trial might properly have been granted but whether the refusal of it involved the violation of a clear legal right or a manifest abuse of judicial discretion.</block_quote>

<bold>Damages — inadequate damages — as grounds for new trial</bold>. <block_quote> 1. The plaintiff either was entitled to recover her actual special damages and something additional for general damages or was not entitled to recover anything at all. Where the general damages are substantial, an award of nothing, or a mere nominal award, will not do. Although the granting of a new trial for inadequate damages rests largely in the discretion of the trial court, a new trial will be ordered by the appellate court where, upon the record, the damages awarded appear entirely inadequate.</block_quote> <bold>Same — same — effect of additur</bold>. <block_quote> 2. Where defendant's liability has been established and plaintiff's special damages are reasonably supported by the evidence, and no evidence has been offered in contradiction thereof, an additur increasing the verdict will not cure the deficiency if the amount of the recovery, in spite of the additur, still remains less than the amount of the special damages proved, for the reason that a mere nominal award will not suffice if substantial general damages are proved.</block_quote>

<bold>Automobiles — regulation — drivers' licenses — revocation</bold>. <block_quote> 1. The legislature has given the commissioner of highways the exclusive authority to issue and to suspend and revoke drivers' licenses.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. The municipal court is, under M.S.A. c. 171, without authority to suspend any form of driver's license, restricted or not. It may recommend to the commissioner, but it cannot suspend or revoke a driver's license.</block_quote> <bold>Same — same — restricted drivers' licenses — nature of</bold> <bold>restrictions</bold>. <block_quote> 3. Where commissioner imposes restrictions on driver's license pursuant to his authority under § <cross_reference>171.09</cross_reference>, it is elementary that the restrictions imposed must be clear and positive by way of expression so that the licensee may understand what he can do and what he cannot do. Purely statutory offenses cannot be established by implication, and acts otherwise either innocent or lawful do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal.</block_quote><page_number>Page 264</page_number> <bold>Statutes — construction — remedial and penal provisions</bold>. <block_quote> 4. Where a statute contains remedial and penal provisions, the former are to be construed liberally and the latter strictly.</block_quote> <bold>Automobiles — regulation — drivers' licenses — revocation</bold>. <block_quote> 5. A license to operate an automobile, once acquired, is a right and privilege of real value and may not be suspended or revoked arbitrarily and taken away capriciously.</block_quote> <bold>Same — same — restricted drivers' licenses — nature of</bold> <bold>restrictions</bold>. <block_quote> 6. Finding the defendant guilty was unwarranted upon the record submitted.</block_quote>

<bold>Automobiles — negligence of driver — violation of statutes as</bold> <bold>evidence</bold>. <block_quote> Violation of the pedestrian right-of-way statute is only prima facie evidence of negligence. If there is evidence tending to show a reasonable explanation of failure to yield the right-of-way to a pedestrian, the question of negligence of defendant driver is for the jury. Violation of a motor vehicle statute may constitute a negligent act in the absence of excuse or justification therefor but when evidence of excuse or justification appears it is for the jury to determine whether such statutory violation constitutes negligence.</block_quote> <block_quote> <italic>Held</italic>, under the record here, that the trial court did not err in failing to instruct the jury that the defendant was negligent as a matter of law on the grounds as claimed by plaintiff that it was undisputed that defendant violated M.S.A. <cross_reference>169.21</cross_reference>, subd. 2, and that therefore an unrebutted prima facie case of negligence was established in accordance with § <cross_reference>169.96</cross_reference>.</block_quote>

<bold>Venue — change of venue — convenience of witnesses —</bold> <bold>discretion of trial court</bold>. <block_quote> 1. The rule is well settled that the granting of a change of venue for the convenience of witnesses and to promote the ends of justice rests within the sound discretion of the trial court and its action will not be disturbed except for a clear abuse of discretion.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. Although in seeking a change of venue for the convenience of witnesses it is not necessary for a party to expose all his evidence in the affidavit supporting his motion by stating in detail what each witness will testify to, it is, however, necessary that he state of his own knowledge, and not upon hearsay, the general matters to which the witness has indicated to him that he will testify.</block_quote>