Volume 256 — Minnesota Reports

<bold>Attorney and client — professional conduct of attorney —</bold> <bold>error in judgment</bold>. 1. A lawyer's professional conduct in representing his client in litigation is to be appraised in the light of all the surrounding circumstances existing prior to and during the course of such litigation and not solely according to an omniscience of hindsight gained after the litigation has been completed. <bold>Same — duty of attorney to client — personal injury action —</bold> <bold>potential liability of client</bold>. 2. When a lawyer, in a personal injury action against several joint tortfeasors, is of the opinion that the defendant he represents will be found liable, and is also of the opinion that another defendant whom he does not represent may likewise be found liable, and such other defendant contests liability, he has the duty to protect his client from being unjustifiably saddled with the entire damage burden when it ought to be shared by such other defendant, and in the discharge of that duty to his client, it is neither improper nor negligent for him to conclude, under the peculiar circumstances of the case, that his client's liability ought to be denied to the end that all <italic>related</italic> questions of liability may be litigated as contested issues.<page_number>Page 55</page_number> <bold>Same — same — same — same</bold>. 3. A different situation arises, however, with respect to a lawyer representing a tort plaintiff whose claim he knows is untenable and who yet futilely and unnecessarily goes forward to trial. <bold>Same — same — same — same</bold>. 4. When a lawyer points out the hazards of a tort action brought against his client by expressing an <italic>opinion</italic> that his client will lose on the issue of liability, it does not necessarily follow that liability exists as a matter of law, or that regardless of the surrounding circumstances, liability may not be properly denied for the purpose of having an adjudication on the merits and this is especially true when that issue must, in any event, be litigated as to codefendants. <bold>Same — professional conduct of attorney — error in judgment</bold>. 5. An attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort in his state and on which reasonable doubt may be entertained by well-informed lawyers. <bold>New trial — grounds — misconduct of counsel</bold>. 6. A new trial for prejudicial conduct or argument is granted only to prevent a miscarriage of justice and whether a new trial is to be granted rests in the discretion of the trial court whose decision will be reversed upon appeal only for a clear abuse of discretion. <bold>Trial — instructions — evidence insufficient to make</bold> <bold>requested instruction applicable</bold>. 7. An omission or a refusal to give a requested instruction is not error where the evidence will not sustain a finding of facts essential to make the instruction applicable.

<bold>Municipal corporations — expenditure of funds — standing of</bold> <bold>party to challenge</bold>. <block_quote> 1. Plaintiffs as "taxpayers, residents and freeholders" of the city of Duluth in behalf of themselves and in behalf of all other taxpayers of the city of Duluth may institute action for declaratory judgment to determine whether, under governing city charter, ordinance of city of Duluth is valid and whether contemplated expenditure of municipal funds thereunder is valid.</block_quote> <bold>Same — offices created contrary to governing charter —</bold> <bold>validity</bold>. <block_quote> 2. Ordinance which creates new offices and authorizes appointment thereto contrary to civil service regulations provided for by governing charter cannot be sustained.</block_quote> <bold>Same — civil service — effect of charter provisions</bold>. <block_quote> 3. Where provisions of original charter designating officers exempt from civil service were deleted from amended charter, it became manifest thereby that the intent of framers of the amended<page_number>Page 93</page_number> charter was that such positions if authorized by amended charter would be subject to civil service provisions thereof and ordinance which authorizes appointment thereto without regard to such civil service regulations is invalid.</block_quote> <bold>Same — same — same</bold>. <block_quote> 4. Provision in amended charter that all executive and administrative powers of city be vested in mayor, administrative assistant, and "such other officers as may be established by or pursuant to the provisions of this charter," construed and held not to authorize creation of additional offices exempt from civil service provisions of such amended charter.</block_quote> <bold>Same — same — same</bold>. <block_quote> 5. Provision in amended charter that the "head of each department shall, with the approval of the Administrative Assistant, have the power to appoint and remove all officers and employees of the department subject to the Civil Service provisions of this charter," construed and held not to vest authority in city council to create additional offices exempt from civil service provisions of such amended charter.</block_quote> <block_quote> In so far as Duluth Ordinance No. 7069 authorizes the creation of or appointment to positions of "Division Heads," "Staff Research Assistant," and "Staff City Planning Assistant" without regard to civil service provisions of amended charter it is contrary thereto and invalid.</block_quote>

<bold>Parent and child — custody — rights of parent</bold>. <block_quote> 1. Laws which permit the severance of the tie that binds a parent to a child recognize the sacredness of that tie and extend the hope of reunion.</block_quote> <bold>Same — dependent and neglected child — statutes regarding —</bold> <bold>construction</bold>. <block_quote> 2. The authorities in this state on the subject of dependent and neglected children indicate that the statutes ought to receive a liberal<page_number>Page 114</page_number> construction, not only as regards the best interests of the child, but also as regards restoration when the parent or parents reasonably prove that they are both able and willing to love, support, care for, and educate their children.</block_quote> <bold>Same — custody — rights of parent</bold>. <block_quote> 3. The right of parents to the custody of their child is paramount and a parent is presumed to be a fit and suitable person to be entrusted with the care of child or children born to and belonging to them. The burden of disproving this presumption rests upon those who challenge it.</block_quote> <bold>Same — dependent and neglected child — custody — rights of</bold> <bold>parent</bold>. <block_quote> 4. 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 — same — same</bold>. <block_quote> 5. By virtue of M.S.A. <cross_reference>260.11</cross_reference> a dependent child may not be taken from the parents without their consent, unless diligent effort has been made to avoid such separation, and unless found needful to prevent serious detriment to the welfare of the child.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 6. Mere poverty of the parents is seldom if ever a sufficient ground for depriving them of their natural rights to the custody of their child or children, to say nothing of the statutory right.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 7. The evidence disclosed by the record in the instant proceedings does not present sufficiently grave and weighty reasons to support the court's commission of appellants' children to the general guardianship of respondent.</block_quote>

<bold>Fraud — fraudulent oral representations — parol evidence rule</bold> <bold>— applicability</bold>. <block_quote> 1. The parol evidence rule is inapplicable to exclude evidence of fraudulent oral representations by one party which induce another to enter into a written contract.</block_quote> <bold>Same — liability for fraudulent representations — essentials</bold>. <block_quote> 2. The rule we follow in establishing a right to recover for fraudulent representations in the sale of property is that a person is liable for fraud if he makes a false representation of a past or existing material fact susceptible of knowledge, knowing it to be false, or as of his own knowledge without knowing whether it is true or false, with intention to induce the person to whom it is made to act in reliance upon it, or under such circumstances that such person is justified in acting in reliance upon it, and such person is thereby deceived and induced to act in reliance upon it, to his pecuniary damage.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. The essential elements of an action based on fraudulent representations may be established by a fair preponderance of the evidence.</block_quote> <bold>Witnesses — expert — qualification — opinion as to value of</bold> <bold>real estate</bold>. <block_quote> 4. A person who has been engaged in appraising real estate over a number of years was sufficiently qualified to give an opinion as to value even though he had not actually bought and sold such property.</block_quote> <bold>New trial — grounds — misconduct of counsel</bold>. <block_quote> 5. The alleged misconduct of defendants' attorney was not of such a serious nature that it was an abuse of discretion on the part of the trial court to deny a new trial.</block_quote>

<bold>Evidence — expert opinion — hypothetical question —</bold> <bold>foundation</bold>. <block_quote> 1. Whether a hypothetical question presents adequate foundation for an expert opinion rests largely in the discretion of the trial court and its decision will not be reversed except for a clear abuse of discretion.</block_quote> <bold>Damages — amount — excessiveness</bold>. <block_quote> 2. The plaintiff, an 18-year-old high school student employed part-time as a stock boy, sustained whiplash injury to his neck. As a result of the injury he lost part-time employment for 2 weeks, missed 2 days of school, and sustained special damages in the sum of $113.60. There was evidence that there would be permanent scar tissue resulting from torn ligaments; that plaintiff tired easily and at time of trial was prevented from engaging in normal athletic activities. There was no satisfactory evidence that the pain the plaintiff suffered at the time of trial would be permanent. Under the evidence verdict in the sum of $7,594.38 was excessive and new trial is granted unless plaintiff files a written consent to reduction to $4,500.</block_quote>

<bold>Trial — directed verdict — sufficiency of evidence</bold>. <block_quote> 1. In an action by patron of bar where intoxicating liquor is sold against bar owner for damages sustained as a result of an assault by another patron, where it appeared that the assault occurred without warning or preliminaries and the record is barren as to any evidence indicating intoxication or disorderly conduct prior to the assault, the trial court did not err in directing a verdict for the defendants. Sylvester v. Northwestern Hospital, <cross_reference>236 Minn. 384</cross_reference>, <cross_reference>53 N.W.2d 17</cross_reference>; Windorski v. Doyle, <cross_reference>219 Minn. 402</cross_reference>, <cross_reference>18 N.W.2d 142</cross_reference>; Priewe v. Bartz, <cross_reference>249 Minn. 488</cross_reference>, <cross_reference>83 N.W.2d 116</cross_reference>; and Klingbeil v. Truesdell, <cross_reference>256 Minn. 360</cross_reference>, <cross_reference>98 N.W.2d 134</cross_reference>, distinguished.</block_quote> <bold>Evidence — admissibility — testimony as to reputation of bar</bold> <bold>patron</bold>. <block_quote> 2. The trial court did not err in sustaining objection of defendant bar owner to testimony as to reputation of patron who committed an assault upon his premises where there was no evidence in the record to indicate that such assaulting patron prior to that time had caused trouble on his premises and where there was no evidence that the proprietor or his bartender had knowledge of the assailant's traits of character.</block_quote>

<bold>Mechanics lien — preserving lien — requirements</bold>. <block_quote> 1. A materialman to preserve a lien must file for record a statement of the claim therefor within 90 days after doing the last of such work, or furnishing the last item of such skill, material, or machinery. M.S.A. <cross_reference>514.08</cross_reference>.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. A materialman is not ordinarily obliged to verify each item furnished with the owner and ordinarily the one who accredits the contractor and enables him to purchase on the credit of the building and the land should be the one to suffer rather than the innocent seller of the material. However, circumstances can exist which would charge a materialman with notice that the contractor ordering the material was misrepresenting the need for the material or the wishes of the owner; such a situation might deprive the materialman of his right to rely on a contractor so as to require him to verify the order with the owner.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. The circumstances here were not sufficient to deprive the materialman of his right to rely on the contractor's order for further material and the 90-day period within which the materialman must file his lien would run from the date that such material was delivered.</block_quote>