Volume 260 — Minnesota Reports

<bold>Workmen's compensation — employer-employee relationship —</bold> <bold>municipal airport manager — sufficiency of evidence</bold>. <block_quote> The evidence contained in the record sustains the finding of the Industrial Commission that the respondent was an employee and not an independent contractor.</block_quote>

<bold>Venue — change of venue — demand by multiple defendants —</bold> <bold>affidavit required</bold>. <block_quote> A demand for a change of venue under Minn. St. 1957, § <cross_reference>542.10</cross_reference>, by a majority of multiple defendants must be accompanied by an affidavit showing the residence of each defendant.</block_quote>

<bold>Eminent domain — damages — question for jury — review of</bold> <bold>verdict</bold>. <block_quote> 1. The question of damages in a condemnation proceeding is essentially one of fact for the jury to determine. An appellate court should not substitute its own judgment for that of the jury, even where it may be of the view that the evidence submitted would justify a substantially larger verdict.</block_quote> <bold>Same — awarding damages — allocation to owner and tenant —</bold> <bold>severance damage — tax consequences</bold>. <block_quote> 2. (A) By Minn. St. <cross_reference>117.08</cross_reference> the legislature intended that the report of the commissioners in condemnation proceedings should show separately the amount of compensation to reimburse the owner and tenant or lessee for damage to their respective interests in property taken. By allocating separate amounts of compensation, subsequent litigation between the owner of the property and those having a lesser interest may be obviated.</block_quote><page_number>Page 71</page_number> <block_quote> (B) We construe the phrase "damage to other property involved," as used in § <cross_reference>117.08</cross_reference>, to refer to compensation for the element of value arising out of the relation of the part taken to the entire tract, commonly referred to as "severance damage."</block_quote> <block_quote> (C) By the allocation of damages in commissioners' report provided for by § <cross_reference>117.08</cross_reference>, the landowner is provided with a finding for use in income tax accounting, in that the apportionment of compensation may establish the amount of severance damage upon which no income tax accrues.</block_quote> <bold>Same — condemnation proceedings — jurisdiction — how</bold> <bold>acquired</bold>. <block_quote> 3. In condemnation proceedings the court acquires jurisdiction by presentation of the petition to the district court in accordance with the provisions of statute showing the right on the part of the state to acquire the land and by statutory notice to persons interested in the property of the time and place of presentation of the petition.</block_quote> <bold>Statutes — construction — when directory — effect of</bold> <bold>noncompliance</bold>. <block_quote> 4. It is generally said that, where the provisions of the statute do not relate to the essence of the thing to be done, are merely incidental or subsidiary to the chief purposes of the law, are not designed for the protection of third persons, and do not declare the consequences of a failure of compliance, the statute will ordinarily be construed as directory and not as mandatory.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 5. While noncompliance with a directory provision of a statute does not require that the proceedings provided for therein be invalidated, there is nevertheless a duty to comply with them as nearly as practicable, and the provisions of the statute may not be ignored to the prejudice of one making timely objection.</block_quote> <bold>Eminent domain — appeal from award — failure to allocate</bold> <bold>severance damages — effect</bold>. <block_quote> 6. There was no prejudice to the property owner in trial on appeal from commissioners' award because of failure to allocate severance damages where that particular issue was not litigated and where no exception was taken to trial court's instructions on the subject of damages.</block_quote><page_number>Page 72</page_number>

<bold>Contracts — construction — conditional sales contract —</bold> <bold>effect of parties' language — necessity of obligation to pay</bold> <bold>price</bold>. <block_quote> 1. Where an agreement has all of the attributes of a conditional sales contract, it is immaterial, for the purpose of applying the provisions of Minn. St. 511.18, subd. 1, that the parties describe the contract as a "lease" and the payments as "rental." It is, however, essential to a conditional sales contract that there be an obligation on the part of the buyer to pay the stated price. Since the evidence was conflicting as to whether the buyer-lessee could have terminated the transaction at any time, the construction of the contract was properly submitted to the jury.</block_quote> <bold>Damages — amount — excessiveness</bold>. <block_quote> 2. The damages awarded were not so excessive as to require either a new trial or a reduction of the verdict.</block_quote>

<bold>Insurance — life — change-of-beneficiary provisions —</bold> <bold>purpose — waiver of defense by insurer</bold>. <block_quote> 1. Provisions of a life insurance policy relating to the subject of change of beneficiary are for the protection of the insurer, and where the insurer has deposited the proceeds of the policy to be paid in accordance with the order of the court, it has waived any defense it might have to the claims of contesting parties.</block_quote> <bold>Same — same — same — interpretation when insurer is not</bold> <bold>party to action</bold>. <block_quote> 2. Where the insurer is not a party to litigation relating to proceeds of insurance policies, equitable principles govern in regard to the interpretation of change-of-beneficiary clauses. The rule generally applied is that equity regards that as done which ought to have been done; that courts will give effect to the intention of the insured, where his failure to complete a change of beneficiary by return of the policy to the insurer is caused by a refusal of the named beneficiary to surrender the policy to him and where the insured's efforts are otherwise in substantial compliance with the requirements imposed by the contract.</block_quote> <bold>Same — same — change of beneficiary without delivery of</bold> <bold>policy — when effectuated</bold>. <block_quote> 3. It is established by the great weight of authority that the question of whether a change of beneficiary of an insurance policy may be effectuated without delivery of the policy to the insurer for endorsement is determined by (1) whether the insured intended to change the beneficiary and (2) whether he took affirmative action or otherwise did substantially all that he could do to demonstrate that intention without regard to whether he complied with the change-of-beneficiary provisions in the policy.</block_quote> <bold>Appeal and error — review — findings of trial court</bold>. <block_quote> 4. In determining whether the findings of the trial court accord with the principles of law just stated, we must be guided by the principle<page_number>Page 105</page_number> that, where an action is tried by the court without a jury, the findings of fact are entitled to the same weight as the verdict of a jury and will not be reversed on appeal unless they are manifestly and palpably contrary to the evidence. This is so even though the reviewing court might itself have come to a different conclusion if it had been the factfinding body.</block_quote> <bold>Divorce — death of party — effect of temporary order on life</bold> <bold>insurance policy</bold>. <block_quote> 5. The record sustains the findings of the trial court to the effect that a temporary order made in a divorce action relating to the custody and control of the husband's insurance policies in no way created a vested interest in them and upon the death of the insured prior to a final divorce decree the effect of the temporary restraining order, as well as the jurisdiction of the divorce court, was at an end.</block_quote> <bold>Insurance — change of beneficiary — naming in will</bold>. <block_quote> 6. The making of a will by an insured naming his children as legatees to whom the proceeds of the insurance policies should be paid is evidence of his intent to effect a change from the named beneficiary.</block_quote>

<bold>Contribution — action for death by wrongful act — spouse of</bold> <bold>decedent as trustee — right of defendants to demand</bold> <bold>contribution or Indemnity from spouse as tortfeasor</bold>. <block_quote> Since the marital-immunity doctrine does not apply in an action brought by a statutory trustee, on behalf of a decedent's next of kin, to recover damages for death by wrongful act brought about by the negligence of the decedent's spouse, the defendants in such an action are not precluded from maintaining a third-party action against the decedent's spouse for contribution or indemnity. Shumway v. Nelson, <cross_reference>259 Minn. 319</cross_reference>, <cross_reference>107 N.W.2d 531</cross_reference>, controlling.</block_quote><page_number>Page 122</page_number>

<bold>Securities — Minnesota Securities Act — substituted service</bold> <bold>on nonresident — validity</bold>. <block_quote> 1. Under Minn. St. <cross_reference>80.14</cross_reference>, subd. 1, state court acquired jurisdiction over nonresident defendants in action involving their violations of §§ <cross_reference>80.07</cross_reference>, <cross_reference>80.12</cross_reference>, subd. 1, and <cross_reference>80.18</cross_reference>, where, pursuant thereto, plaintiff left copies of summons and complaint for them with commissioner of securities here as their attorney for such service of process.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. Validity of statutes comparable to § <cross_reference>80.14</cross_reference>, subd. 1, established by decisions of United States Supreme Court in McGee v. International Life Ins. Co. <cross_reference>355 U.S. 220</cross_reference>, <cross_reference>78 S.Ct. 199</cross_reference>, <cross_reference>2 L. ed. 2d 223</cross_reference>, and International Shoe Co. v. Washington, <cross_reference>326 U.S. 310</cross_reference>, <cross_reference>66 S.Ct. 154</cross_reference>, <cross_reference>90 L. ed. 95</cross_reference>, on theory that to subject a nonresident of the forum to judgment in personam due process requires only that such nonresident have certain minimum contacts with the forum so that maintenance<page_number>Page 284</page_number> of suit shall not offend traditional notions of fair play and substantial justice.</block_quote> <bold>Same — same — same — acts constituting appointment of</bold> <bold>attorney</bold>. <block_quote> 3. Actions of nonresident defendants in offering for sale and selling to plaintiff through long distance telephone and mail communications shares of corporate common stocks not registered with commissioner of securities here, in violation of §§ <cross_reference>80.07</cross_reference>, <cross_reference>80.12</cross_reference>, subd. 1, and <cross_reference>80.18</cross_reference>, constituted their irrevocable appointment of commissioner of securities here as their attorney for service of process upon them in actions involving such violations. Minnesota held to have manifest interest in providing effective means of redress for residents against nonresidents selling securities to them in violation of legislation designed for their protection.</block_quote> <bold>Corporations — foreign corporation — amenability to suit —</bold> <bold>engaged in business</bold>. <block_quote> 4. Under § <cross_reference>303.13</cross_reference>, subd. 1(3), Best Securities Incorporated, a New York corporation, held "doing business" in Minnesota by virtue of its actions in negotiating for and consummating series of sales of corporate common stocks to Minnesota resident through long distance telephone and mail communications.</block_quote>

<bold>Attorney general — powers — function</bold>. <block_quote> 1. The powers of the attorney general are not limited to those granted by statute but include extensive common-law powers inherent in his office. He is the legal adviser to the executive officers of the state and the courts will not control the discretionary power of the attorney general in conducting litigation for the state.</block_quote> <bold>Same — same — waiver of state's immunity from suit</bold>. <block_quote> 2. Minnesota adheres to the general rule that unless duly authorized by law the attorney general may not waive the immunity of the state from suit. He could not therefore bind the state by his appearance in this action so as to give the court jurisdiction of the agency here involved or the board representing that agency in the absence of a statute so providing.</block_quote> <bold>Pension — public employees' retirement annuity — employees'</bold> <bold>rights</bold>. <block_quote> 3. The beneficiary under Minn. St. c. 353 has no vested right in a pension granted by government except as payments become due him absolutely under the law since public officers and employees in this state are mere agencies of government.</block_quote> <bold>Same — same — same</bold>. <block_quote> 4. The contributors have no vested right in the payments deducted from their salaries which go to make up the state employees retirement fund and a member of the retirement fund association has no vested right in a pension granted except as payments become due him absolutely under the law.</block_quote> <bold>Same — same — same</bold>. <block_quote> 5. Until a member is qualified for a benefit from the retirement fund that member has no vested right therein except to receive a refund of the amount of his own contributions upon separation from the service.</block_quote><page_number>Page 304</page_number> <bold>Public employee — right to position</bold>. <block_quote> 6. It is firmly established in this state that a state employee even though under civil service has no vested right to his position.</block_quote> <bold>Pension — public employees' retirement annuity — employees'</bold> <bold>rights — power of legislature to alter</bold>. <block_quote> 7. The provision in the law which says that the monthly annuity due a beneficiary shall be paid only from the retirement fund (§ <cross_reference>353.27</cross_reference>, subd. 6) indicates that no absolute contract obligation exists. The whole arrangement is statutory and the statutes governing the Public Employees Retirement Association may be repealed or altered as the legislature deems just and proper.</block_quote> <bold>Class suit — right to maintain — interest required</bold>. <block_quote> 8. Since § <cross_reference>353.38</cross_reference> prohibits giving any contract rights to any person except the right to receive back upon withdrawal from the association through separation from the public service the accumulated deductions, as by law defined, standing to his credit on the books of the association, no right of action representative or otherwise exists upon the attending facts herein.</block_quote> <bold>Same — same — same</bold>. <block_quote> 9. Plaintiffs' rights herein to maintain a class action must be determined by the statutory provisions defining their legal interest in the subject matter involved. A suit is not made representative merely because the parties so designate it. Whether or not it is representative depends upon the attending facts.</block_quote> <bold>Judgments — summary judgment — when granted — question of</bold> <bold>law</bold>. <block_quote> 10. Rule 56 of Rules of Civil Procedure, dealing with summary judgment, makes no distinction between legal and equitable actions but applies to all actions. The presence of a question of law where there is no genuine issue of fact is not a bar to a summary judgment. The rule contemplates and requires that in such a situation the court render a summary judgment and where the decision is right as a matter of law this court will affirm.</block_quote> <bold>Class suit — right to maintain — interest required</bold>. <block_quote> 11. It is clear from the record before us in this case that plaintiffs are without legal capacity to maintain their suit.</block_quote><page_number>Page 305</page_number>

<bold>Appeal and error — appeal in habeas corpus proceedings — new</bold> <bold>procedure — weight given findings of trial court</bold>. <block_quote> 1. Minn. St. <cross_reference>589.30</cross_reference>, relating to the hearing of appeals in habeas corpus proceedings, was amended by L. 1961, c. 660. Prior to such amendment such proceedings were heard and considered by this court de novo. They are now here on appeal the same as any other civil action. The findings of the trial court are now entitled to the same weight as in other cases and are to be sustained if there is reasonable evidence to support them.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. The findings of the trial court adverse to the contentions of defendant are amply supported by the evidence, including the files and records herein.</block_quote>

<bold>Carriers — acquisition by motor common carrier of certificates</bold> <bold>for routes with a common point — effect on carrier's</bold> <bold>operating rights</bold>. <block_quote> 1. Where the Railroad and Warehouse Commission had originally granted operating rights to motor common carrier between the metropolitan area of Minneapolis and St. Paul and Rochester and later on application of the carrier granted a "cross-state" route between Owatonna and Winona and both routes had Rochester as a common point, the two certificates did not constitute a consolidated route giving the carrier authority to conduct a through single-line carrier operation between the distant termini of both routes.</block_quote> <bold>Same — motor common carrier — purchase of connecting route</bold> <bold>from competitor — effect on rights of each</bold>. <block_quote> 2. Where a regular route common carrier by motor vehicle acquired by transfer a connecting route of a competing carrier, the purchasing carrier acquired operating rights the other carrier had to sell. The transfer did not enlarge rights either might have or create new rights which were not previously authorized. If the purchasing carrier proposes to operate the combined system as a single through route, he must apply to the Railroad and Warehouse Commission for authority to do so and support the application by evidence that public convenience and necessity requires the new service.</block_quote> <bold>Railroad and Warehouse Commission — purchase by carrier of</bold> <bold>connecting route — operation as single through route —</bold> <bold>necessity of application to commission for authority</bold>. <block_quote> 3. Assuming instances may be found in which the Railroad and Warehouse Commission has, in approving application for transfer of motor carrier authorizations, recognized that the transferee might use the acquired authorization as part of a combined route with common termini, such fact would not create estoppel and<page_number>Page 441</page_number> would not alter the basic principle that a new right can only come into existence upon an order of the commission made pursuant to an application for a new right on the basis of considerations provided for by statute.</block_quote> <bold>Same — motor common carrier — effect of published tariffs on</bold> <bold>operating rights</bold>. <block_quote> 4. The operational rights of a carrier by motor vehicle are fixed by the authorization contained in its certificate of convenience and public necessity and are not controlled by published rates and tariffs. A mistake or oversight in the performance of a ministerial act by an employee of the Railroad and Warehouse Commission with relation to a tariff filed by a common carrier cannot have the effect of enlarging that carrier's rights.</block_quote>

<bold>Appeal and error — review — rehearing — when granted</bold>. <block_quote> 1. Before a rehearing may be granted, there must be a showing that this court has overlooked some material fact or some controlling principle of law. Unless there is such a showing, the decision should stand.</block_quote> <bold>Same — same — denial of new trial — questions determined by</bold> <bold>appeal</bold>. <block_quote> 2. Where an order denying a new trial has been affirmed on appeal, all questions that might have been raised thereon are set at rest and cannot be raised in a subsequent appeal from the judgment.</block_quote>

<bold>Criminal law — appeal — application by indigent prisoner for</bold> <bold>transcript — furnishing of synopsis</bold>. <block_quote> 1. Where, in an application by an indigent prisoner (Minn. St. <cross_reference>611.07</cross_reference>, subd. 3) for a transcript of the entire evidence and proceedings in which he was convicted of assault in the second degree, the applicant has failed to point out what questions he wishes to review and what portion of the transcript is necessary in order to present such questions, there is no abuse of discretion by the trial court in furnishing to him a synopsis of the testimony and denying his application for a complete and unabridged transcript of the entire trial.</block_quote> <bold>Same — same — application by indigent defendant for counsel</bold> <bold>— when appointment not warranted</bold>. <block_quote> 2. Applying standards set forth in statement of policy with reference to appointment of counsel on appeal for indigent defendant to the record before us, an order of this court appointing such counsel is not warranted.</block_quote>

<bold>Venue — right to remand — waiver — constructive notice of</bold> <bold>amendment to statute</bold>. <block_quote> Every party to an action is charged with constructive notice of the venue statutes and their amendments. By serving and filing a note of issue in a particular county, without promptly objecting to improper venue, a party is deemed to have acquiesced in the venue and to have intended that his right to remand be waived.</block_quote>

<bold>Courts — contempt proceedings — affidavit of prejudice —</bold> <bold>effect</bold>.