Volume 257 — Minnesota Reports

<bold>Criminal law — driving automobile without permission of owner</bold> <bold>— sufficiency of evidence to sustain conviction</bold>. <block_quote> Defendant appeared in his own behalf in seeking a review under a writ of error issued out of this court. There is no settled case or bill of exceptions, but we have examined a transcript of the trial and are of the opinion that if the transcript had been settled as a case the evidence would sustain the conviction.</block_quote>

<bold>Municipal corporations — violation of ordinance prohibiting</bold> <bold>disorderly conduct — right to jury trial</bold>. <block_quote> A defendant charged with violating a city ordinance prohibiting disorderly conduct is not entitled to a trial by jury in municipal court; the rule of State v. Hoben, <cross_reference>256 Minn. 436</cross_reference>, <cross_reference>98 N.W.2d 813</cross_reference>, applies only to acts which constitute a violation of a provision of the Highway Traffic Regulation Act.</block_quote>

<bold>Insurance — liability insurer — failure to consider</bold> <bold>compromise offers — effect</bold>. <block_quote> A liability insurer, having assumed control of the right of settlement of claims against the insured under a policy which gives it the exclusive right to defend and settle, may become liable in excess of its undertaking under the policy provisions if it fails to exercise "good faith" in considering offers to compromise the claim for an amount within the policy limits; there must be bad faith on the part of the insurer with resulting injury to the insured before there can be a cause of action against the insurer for the excess over its undertaking.</block_quote> <block_quote> <italic>Held</italic>, under the record here, there is evidence to sustain a finding that the insurer did not act in good faith and upon reasonable ground in rejecting the proposed settlement.</block_quote>

<bold>Courts — probate court — appeal to district court —</bold> <bold>appealable orders</bold>. <block_quote> 1. The right of appeal from probate court to district court is purely statutory.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. A right of appeal having been provided by M.S.A. <cross_reference>525.71</cross_reference> either from an order admitting or refusing to admit a will to probate or from an order appointing or refusing to appoint a representative, the court may not require that an appeal from both be taken to be effective.</block_quote> <bold>Same — same — same — notice</bold>. <block_quote> 3. A notice of appeal from probate court to district court is nothing more than actual notice that an appeal has been taken. It is not process. It is to be liberally construed.</block_quote> <bold>Same — same — same — same — requirement that order appealed</bold> <bold>from be specified</bold>. <block_quote> 4. The order of the probate court admitting or refusing to admit a will to probate and the order appointing or refusing to appoint a<page_number>Page 325</page_number> representative are two separate acts of the court and constitute two separate orders, whether embodied in one instrument or issued in two separate papers. Where an appeal is taken from only one of such orders, reference to the order from which the appeal is taken is sufficient compliance with § <cross_reference>525.712</cross_reference>.</block_quote>

<bold>Municipal corporations — sewage treatment plant —</bold> <bold>construction and operation by city</bold>. <block_quote> 1. Under M.S.A. <cross_reference>444.075</cross_reference>, subd. 1, city and its officials are authorized to build, construct, or obtain sewage treatment plants and other facilities for disposal of sewage or industrial waste and to maintain and operate them inside or outside the limits of such municipality.</block_quote> <bold>Same — same — suit to enjoin construction — when surety bond</bold> <bold>may be required — amount</bold>. <block_quote> 2. Under § <cross_reference>562.02</cross_reference> court may require that plaintiff furnish surety bond to protect defendants from any loss which might result to the public or taxpayers because of any delay occasioned by plaintiff's suit to enjoin defendant city and its officials from constructing sewage disposal plant.</block_quote> <bold>Same — same — same — same — same</bold>. <block_quote> 3. Court did not abuse its discretion in fixing amount of such bond at $250,000 where record disclosed that city might suffer loss of a grant-in-aid from Federal government in sum of $250,000 because of delay occasioned by plaintiff's action.</block_quote>

<bold>Damages — prospective damages — degree of proof required</bold>. <block_quote> 1. In the ordinary civil action the plaintiff has the burden of proving every essential element of his case, including damages, by a fair preponderance of the evidence. This burden is not affected by the rule that in order to recover for prospective damages it must be shown that such damages are reasonably certain to occur as a result of the original injury. The distinction lies in the ultimate fact to be proved and the quality or quantum of evidence required to prove that fact. <italic>Held</italic> that the trial court committed prejudicial error in instructing the jury that the plaintiff must prove future or permanent injuries by a reasonable medical certainty rather than by a fair preponderance of the evidence to a reasonable certainty.</block_quote> <bold>Same — same — proof — instructions</bold>. <block_quote> 2. Expert medical evidence is not the exclusive means of proving future damages or permanent injuries. Consequently, when instructing as to the right to recover for prospective damages the phrase "reasonable certainty" rather than "reasonable medical certainty" is to be used. The word "medical," as used in the phrase "reasonable medical certainty" in Dornberg v. St. Paul City Ry. Co. <cross_reference>253 Minn. 52</cross_reference>, <cross_reference>60</cross_reference>, <cross_reference>91 N.W.2d 178</cross_reference>, <cross_reference>185</cross_reference>; Derrick v. St. Paul City Ry. Co. <cross_reference>252 Minn. 102</cross_reference>, <cross_reference>108</cross_reference>, <cross_reference>89 N.W.2d 629</cross_reference>, <cross_reference>633</cross_reference>; and Penteluk v. Stark, <cross_reference>244 Minn. 337</cross_reference>, <cross_reference>340</cross_reference>, <cross_reference>69 N.W.2d 899</cross_reference>, <cross_reference>901</cross_reference>, is withdrawn.</block_quote>

<bold>Appeal and error — review — erroneous instructions — when</bold> <bold>law of case</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 seasonably and adequately 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. <italic>Held</italic>, the fact that a condemnation proceeding is involved does not justify an exception to this rule.</block_quote> <bold>Same — same — scope of review — appeal from judgment</bold>. <block_quote> 2. Generally the only question to be reviewed on appeal from a judgment is whether the verdict is reasonably supported by the evidence. <italic>Held</italic>, under the evidence here, we cannot say that the verdicts are so excessively low that they are not justified by the evidence.</block_quote>

<bold>Hospital — care required for patient's safety — condition of</bold> <bold>patient</bold>. <block_quote> 1. A patient entering a hospital operated for the treatment and cure of mental and nervous disorders, for private gain, is admitted under an implied obligation that the hospital will exercise such care and attention for his safety as his mental and physical condition, if known, may require. Although such hospital is not an insurer of the safety of its patients, it must nevertheless exercise such reasonable care for the protection and well-being of the patient as his known physical and mental condition requires, or such as is required by his condition as it ought to be known to the hospital in the exercise of ordinary care, and the question whether such requirements have been met, generally, presents an issue to be determined by the jury.</block_quote> <bold>Same — same — inability to anticipate particular injury</bold>. <block_quote> 2. If the act is one which the hospital, in the exercise of ordinary care, ought to have anticipated was liable to result in injury to the patient, then the hospital would be liable for any injury proximately resulting from it although the hospital could not have anticipated the particular injury which did happen.</block_quote> <bold>Same — tort liability — knowledge and neglect of hospital</bold> <bold>employees</bold>. <block_quote> 3. The knowledge in possession of the nurses and attendants of the hospital was knowledge of the defendant hospital, and neglect by such hospital personnel would be neglect of the hospital under the doctrine of respondeat superior.</block_quote> <bold>Same — care required for patient's safety — patient's</bold> <bold>unpredictable acts</bold>. <block_quote> 4. While the care must be adequate to the known condition of the patient, the hospital will not be liable for failing to forestall unpredictable conduct on the patient's part.</block_quote> <bold>Trial — function of jury — questions of law and fact</bold>. <block_quote> 5. Where questions of law and fact are involved, well-established<page_number>Page 471</page_number> rules generally require that questions of fact on which evidence is conflicting are to be determined by the jury, and this includes the weight to be given to the conflicting evidence.</block_quote>

<bold>Divorce — grounds — cruel and inhuman treatment —</bold> <bold>determination of facts</bold>. <block_quote> 1. In a divorce action where plaintiff alleges and seeks to prove acts claimed to constitute cruel and inhuman treatment which are denied or minimized by defendant, fact questions are presented for determination by the trial court. The evidence in this case is such that the facts could be found either way, depending largely on the credibility of the witnesses.</block_quote> <bold>Trial — findings — failure of court to make on each issue —</bold> <bold>denial of motion for amended findings</bold>. <block_quote> 2. Rule 52.01 of Rules of Civil Procedure requires findings to be made on each fact issue involved in the trial. Even though the facts are not found sufficiently in detail, we need not reverse where it appears from a denial of a motion for amended findings of fact that the court has passed on all fact issues.</block_quote> <bold>Divorce — custody and support of children — power of court</bold> <bold>where divorce denied</bold>. <block_quote> 3. Where it appears that parties to a divorce are to live apart, the trial court may make provision for custody and support of minor children even though a divorce is denied. Failure to do so in this case was not reversible error.</block_quote>

<bold>Criminal law — information — sufficiency — statutory tests</bold>. <block_quote> 1. Provisions applicable to indictments under M.S.A. <cross_reference>628.18</cross_reference> apply equally to informations. §§ <cross_reference>628.29</cross_reference>, <cross_reference>628.30</cross_reference>. Indictment or information otherwise sufficient is not defeated by fact that it is inartfully drawn or awkwardly worded.</block_quote> <bold>Same — grand larceny — proof required to sustain conviction</bold>. <block_quote> 2. Under § <cross_reference>622.01</cross_reference> it is not essential to sustain conviction for grand larceny that defendant take property from possession of true owner. Conviction may be sustained upon evidence that defendant took property from "possession of the true owner, <italic>or of any other person</italic>" (italics supplied) with intent to defraud owner and with knowledge that property was stolen from him. Under § <cross_reference>622.05</cross_reference> if value of property exceeds $500 crime is grand larceny in first degree.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. Evidence considered and held sufficient to sustain defendant's conviction for crime of grand larceny in first degree.</block_quote> <bold>Evidence — testimony of private detective — exercise of</bold> <bold>court's discretion</bold>. <block_quote> 4. Where proffered evidence was immaterial to issues, and where, under § <cross_reference>326.336</cross_reference>, witness was prohibited from divulging information gained as employee of licensed private detective agency, except<page_number>Page 581</page_number> as required by law, trial court did not abuse discretion in rejecting such evidence.</block_quote> <bold>Same — admissibility — checks-sufficiency of foundation</bold>. <block_quote> 5. Where checks submitted in evidence were identified by witnesses as having been delivered to defendant, and where there was testimony that defendant had admitted to witness that he had received checks in payment of merchandise stolen from Munsingwear, Inc., and that endorsements on back thereof had been placed thereon by him personally, <italic>held</italic> trial court did not abuse discretion in receiving checks in evidence or in referring to one thereof as having the signature or endorsement of defendant thereon.</block_quote> <bold>Trial — statements of trial court — effect on jury</bold>. <block_quote> 6. Trial court's statement in presence of jury "And your man was in with him" in referring to fact that one of the witnesses admitted unlawfully removing part of stolen merchandise from Munsingwear plant constituted prejudicial error requiring new trial in interests of justice. Jurors ordinarily look to trial judge for indication as to opinion with reference to matters in issue, and accordingly latter should refrain from any word or action which might emphasize his personal feelings on matters in dispute. This is particularly true in criminal cases where guilt or innocence of defendant must be determined by jury alone without comment from court which might influence its opinion on disputed issues.</block_quote>

<bold>Attorney and client — disbarment — professional misconduct</bold>.