Volume 264 — Minnesota Reports

<bold>Appeal and error — review — verdict</bold>. <block_quote> 1. A verdict approved by the trial court will not be disturbed on appeal unless a manifest injustice has been done, or it is not supported by the evidence or is contrary to the evidence.</block_quote> <bold>Negligence — duty of motorist to children — duty of child</bold>. <block_quote> 2. Instructions given by the trial court on the duty of a motorist where children may be present, and the degree of care which a child must exercise, <italic>held</italic> proper.</block_quote> <bold>Trial — instructions — omission — when exception required</bold>. <block_quote> 3. Failure by the court to charge the jury on the right of a pedestrian to assume due care on the part of a motorist is not an omission affecting fundamental law and must be raised by timely exception.</block_quote> <bold>Negligence — "last clear chance" doctrine — applicability</bold>. <block_quote> 4. The so-called "last clear chance" doctrine does not insulate contributory negligence if defendant was not aware of the danger in time to avoid it.</block_quote> <bold>Trial — submission of special verdict — failure to advise</bold> <bold>counsel</bold>. <block_quote> 5. Failure to advise counsel until the time of final argument that a special verdict would be submitted <italic>held</italic> not to be prejudicial error.</block_quote> <bold>Same — special verdict — impeachment</bold>. <block_quote> 6. A juror's affidavit purporting to express the jury's intention in executing answers to a special verdict may not be used to impeach the jury's findings.</block_quote>

<bold>Municipal corporations — annexation — validity — who may</bold> <bold>challenge</bold>. <block_quote> 1. An organized town from which it is proposed to detach territory has such a special interest in the matter as to enable it to challenge the validity of the annexation proceeding.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. Where a proper proceeding is commenced by a town from which property is to be detached by an annexation proceeding, residents and taxpayers of the town may join with the town in challenging the validity of the annexation proceeding.</block_quote> <bold>Declaratory judgments — injunction in pending determination of</bold> <bold>action — power of court</bold>. <block_quote> 3. Where an action for a declaratory judgment will lie, the trial court may grant injunctive relief to maintain the status quo pending a determination of the main action if the facts and circumstances of the case warrant it.</block_quote> <bold>Actions — annexation by municipality — proper proceedings to</bold> <bold>challenge</bold>. <block_quote> 4. An action for a declaratory judgment is a direct, not a collateral, attack on an annexation proceeding.</block_quote> <bold>Same — same — same</bold>. <block_quote> 5. Where there are fact issues to be tried, it is preferable to commence an action in the district court rather than the supreme court.</block_quote> <bold>Same — same — same</bold>. <block_quote> 6. An action for a declaratory judgment brought by a municipal corporation from which it is proposed to detach territory is a proper proceeding to test the validity of an annexation proceeding.</block_quote> <bold>Judgments — res judicata — action challenging annexation</bold>. <block_quote> 7. Where an action for a declaratory judgment is brought to test<page_number>Page 134</page_number> the validity of an annexation proceeding by the town from which it is proposed to detach territory, the determination of the rights of the parties is res judicata on all the residents and taxpayers of the governmental units involved.</block_quote> <bold>Quo warranto — abolition of writ and information — effect</bold>. <block_quote> 8. Abolition of the writ of quo warranto and an information in the nature of quo warranto by amendment of Rule 81.01 of Rules of Civil Procedure did not abolish the relief formerly available under such procedures.</block_quote>

<bold>Partnership — accounting — review — sufficiency of evidence</bold>. <block_quote> 1. In an action for a partnership accounting and damages resulting from alleged fraudulent misrepresentation, held evidence sustains the findings of the trial court.</block_quote> <bold>Courts — partnership accounting — order for judgment against</bold> <bold>estate of deceased partner — review</bold>. <block_quote> 2. An order of the district court directing entry of judgment following a partnership accounting against an estate of a deceased partner during pendency of probate proceedings is unauthorized since the order conflicts with Minn. St. <cross_reference>525.411</cross_reference>, which requires all claims arising upon contract to be filed in probate court.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. To obtain relief from such order application must be made to<page_number>Page 199</page_number> district court to correct it, and absent such application and ruling thereon, appellate review cannot be granted.</block_quote>

<bold>Insurance — auto liability insurance — policy — construction</bold> <bold>— exclusionary provisions</bold>. <block_quote> Provisions of an automobile liability insurance policy, excluding from "MEDICAL EXPENSE COVERAGE" and "Protection Against UNINSURED MOTORISTS COVERAGE" a relative of a named insured residing in the same household on the basis that such relative himself owned an automobile, <italic>held</italic> neither ambiguous nor unreasonable.</block_quote>

<bold>Appeal and error — review — scope of review</bold>. <block_quote> 1. Since there was no motion for a new trial, the only issue presented on this appeal is whether the evidence sustains the trial court's findings and whether those findings support the conclusions of law and the judgment.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. The question here is not whether the trial court would have been justified in making findings in appellants' favor but whether the findings made are supported by evidence reasonably tending to establish the facts found.</block_quote> <bold>Money had and received — when action lies</bold>. <block_quote> 3. An action for money had and received will lie when one person has possession of money which in equity and good conscience belongs to another and ought to be delivered to him.</block_quote>

<bold>Intoxicating liquors — liability under Civil Damage Act —</bold> <bold>basis — sale to minor</bold>. <block_quote> 1. Where intoxication is established as a cause of injury to another, any illegal sale to a minor or any illegal sale or furnishing of intoxicants to a person obviously intoxicated, singly or in combination, can be a basis for liability under the Civil Damage Act, Minn. St. <cross_reference>340.95</cross_reference>.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. Evidence held sufficient to sustain verdict of liability based on a sale either to a minor or to a person obviously intoxicated, either or both of which contributed to cause intoxication resulting in injury and death.</block_quote><page_number>Page 458</page_number> <bold>Same — same — same — same</bold>. <block_quote> 3. Where a minor consuming intoxicants in the company of others takes his turn in paying for each round of intoxicants served, there is an illegal sale which gives rise to an action under § <cross_reference>340.95</cross_reference>; liability attaches for an illegal sale to a minor although the intoxicant is consumed by person entitled to be served who thereby becomes intoxicated.</block_quote> <bold>Evidence — admissibility — opinion of police officer —</bold> <bold>location of collision</bold>. <block_quote> 4. The opinion of a police officer as to the point of impact of a collision is not admissible over objection.</block_quote>

<bold>Damages — measure — fraud inducing purchase of business</bold>. <block_quote> 1. In action for damages based upon fraudulent representations inducing purchase of a business, measure of damages is loss naturally and proximately resulting from fraud, which ordinarily would include difference between what plaintiff parted with and what he received. Where court charged that measure of such damages was difference in value in what was given and what was actually received, but added that such measure would be difference in value of jewelry business with lease for 6 1/2 years and value of such business with lease for 1 1/2 years; and where no evidence was presented with respect to either of such valuations, such instruction was erroneous and left jury's determination of damages to speculation and conjecture.</block_quote> <bold>Evidence — admissibility — fraudulent representation</bold> <bold>contradicting terms of written contract</bold>. <block_quote> 2. In action for damages based upon fraudulent representation inducing purchase of a business, which purchase is evidenced by written contract, evidence is admissible to establish such fraud even though it may in part contradict terms of written contract when it tends to prove that contract was induced by the alleged fraud.</block_quote> <bold>Fraud — inducing purchase of business — liability of seller's</bold> <bold>lessor</bold>. <block_quote> 3. Where evidence was in conflict as to whether lessor of property remained silent while lessee stated to prospective purchaser of lessee's business that written lease contained renewal option for additional 5 years from its expiration date; and where evidence was in conflict as to whether any such conversation took place prior to execution of written purchase agreement, <italic>held</italic> lessor's liability for fraud in inducing execution of purchase agreement by plaintiffs was question for jury.</block_quote> <italic>Verdict — court's instructions regarding apportionment —</italic> <italic>effect</italic>. <block_quote> 4. Where jury erroneously returned verdict apportioning an award<page_number>Page 472</page_number> of damages among defendants; and where court in response to question of juror at that time advised jury that it should resume deliberations and that court would divide or apportion its award among defendants, <italic>held</italic> such procedure was erroneous and may have led jury to believe court would equitably apportion between defendants any verdict it might return, so as to affect its determination as to amount of damages or as to liability of one of the defendants.</block_quote>

<bold>Workmen's compensation — review — findings — causal</bold> <bold>relationship between occupational disease and employment</bold>. <block_quote> 1. Where medical experts disagree as to causal relationship between progress and development of an occupational disease and the employment, a question of fact arises, the determination of which will not be disturbed on appeal where there is competent evidence to sustain it.</block_quote> <bold>Same — occupational disease — coronary thrombosis suffered</bold> <bold>while on vacation — causal connection with employment</bold>. <block_quote> 2. Whether there is a causal relation between the employment and a coronary thrombosis occurring while the employee is on vacation is a question of fact to be decided by determining whether the coronary thrombosis had its origin in the hazards to which the employment exposed the employee while doing his work. A finding that there is a causal connection between employment and coronary thrombosis will not be disturbed on appeal where the record contains evidence which permits an inference to be drawn from the accepted facts which warrants such finding.</block_quote>

<bold>Elections — provisions regulating — distinction</bold>. <block_quote> 1. There is a clear distinction between the provisions and prohibitions in the election laws which are personal to the elector and those which apply to election officers over whose conduct he has no control.</block_quote> <bold>Same — same — same — effect of noncompliance</bold>. <block_quote> 2. All provisions of the election laws regulating the conduct of election officers, except in cases of actual fraud, are directory, that is, compliance therewith is not essential to a valid election, but compliance with the law by the election officers is to be secured by punishing them and not by defeating the will of the citizen as expressed by his ballot.</block_quote> <bold>Same — ballots — marks not invalidating — construction —</bold> <bold>intention of voter</bold>. <block_quote> 3. Where marks are made by a voter upon his ballot in a place or in such manner that it can reasonably be seen or inferred that they were made in an attempt to indicate his choice or vote for candidates or measures to be voted for, the marks are generally held not to be identifying marks.</block_quote> <bold>Same — same — same — same — same</bold>. <block_quote> 4. Mere irregularities in the marking of ballots, such as neither<page_number>Page 521</page_number> create uncertainty as to the voter's choice nor serve as distinguishing signs, violative of secrecy, are not cause for rejecting ballots.</block_quote> <bold>Same — same — same — same — same</bold>. <block_quote> 5. A ballot should receive an ordinary and not a forced construction. The ballot should be upheld where, when read naturally in the ordinary way, it is consistent with innocence, good faith, and honest voting.</block_quote> <bold>Same — same — same — same — same</bold>. <block_quote> 6. Our statute seeks to give effect to the intention of the voter. By prescribing rules for the counting of certain ballots in which there is irregularity, it implicitly provides that mere irregularity shall not vitiate the entire vallot.</block_quote> <bold>Same — same — marks invalidating — construction of statute</bold>. <block_quote> 7. The construction of Minn. St. <cross_reference>204.22</cross_reference> in Marshall v. Stepka, <cross_reference>259 Minn. 553</cross_reference>, <cross_reference>108 N.W.2d 614</cross_reference>, is binding upon this court to the extent that a ballot may be held defective because of distinguishing characteristics only when it is evident that the voter in casting his ballot intended thereby to identify it.</block_quote>