Volume 266 — Minnesota Reports

<bold>Constitution — right to speedy trial — when defendant is in</bold> <bold>Federal custody</bold>. <block_quote> The failure of a state to bring a defendant to trial on a state charge during the period of his confinement in a Federal penal institution in another state will not support a claim of denial of a speedy trial by the state court. The reason for the rule is that the defendant is in custody in the Federal penal institution because of his own wrongdoing and is beyond the custody and control of the state court, even though the Federal government might grant the request of the state for custody of the defendant for the purpose of trial on the state charge.</block_quote>

<bold>Eminent domain — appeal from award — calling commissioner as</bold> <bold>witness — cross-examination — scope</bold>. <block_quote> 1. Since enactment of Minn. St. <cross_reference>117.20</cross_reference>, subd. 8(c), it has been open to both sides in a condemnation proceeding to call as a witness one or more of the court-appointed commissioners, and the privilege to cross-examine such witness is open as in the case of any other adverse witness. Such expert witness may be cross-examined to find the basis of the foundation of his expressed opinion and, based upon the sound discretion of the trial court, the cross-examination should not be limited strictly to matters brought out on direct examination. If such witness on direct examination testifies to one part or phase of a transaction he may be questioned on cross-examination as to every part or phase of the same transaction.</block_quote><page_number>Page 167</page_number> <bold>Same — taking of leasehold — measure of damages</bold>. <block_quote> 2. The measure of damages upon condemnation of an entire leasehold is the fair market value of the estate so taken.</block_quote> <bold>Same — same — apportionment of damages between landlord and</bold> <bold>tenant</bold>. <block_quote> 3. In apportioning damages between landlord and tenant the gross damages to be awarded are first determined and the award is then apportioned among those who have various interests in the property. Under this rule the total amount of damages must be the same whether the whole of the property condemned is owned by one person or several.</block_quote> <bold>Same — same — same — same — evidence</bold>. <block_quote> 4. A person is entitled to the fair value of his property for any use to which it is adapted and for which it is available, and for which it may be sold. Any evidence is competent and any fact is proper to be considered which legitimately bears upon the question of the market value of the whole of the property condemned.</block_quote> <bold>Same — same — same — same — same</bold>. <block_quote> 5. The question for the jury to determine in apportionment of an award between tenant and owner is not what the leasehold and fixtures or improvements added by the tenant were worth separately, but what price a buyer would be willing to pay for the leasehold and the fixtures together. Thus, evidence relating to the value of the unexpired portion of the lease and to the value of the fixtures or improvements is admissible separately as bearing on the value of the two as a unit, but not as items the sum of which constitutes market value.</block_quote> <bold>Same — compensation awarded to tenant — evidence</bold>. <block_quote> 6. Destruction is tantamount to taking. The tenant whose occupancy is taken is entitled to compensation for destruction, damage, or depreciation in value. Since these are property distinct from the right of occupancy such compensation should be awarded, not as part of, but in addition to, the value of the occupancy as such.</block_quote> <bold>Same — same — same</bold>. <block_quote> 7. Where the lease has been involuntarily terminated, items that are not strictly items of damage become essential as a matter of evidence in fixing the value of the leasehold.</block_quote><page_number>Page 168</page_number> <bold>Same — same — same — importance of lease</bold>. <block_quote> 8. In the instant case the lease should have been in evidence and should have gone to the jury, for it is the vehicle which defines the rights of the parties.</block_quote>

<bold>Criminal law — swindling — cashing checks without sufficient</bold> <bold>funds — sufficiency of evidence</bold>. <block_quote> Evidence that defendant, charged with swindling, replaced a revoked driver's license with one fraudulently obtained under a fictitious name; that he opened a checking account the following year in a similar assumed name; that he knowingly overdrew his bank account and cashed numerous checks without sufficient funds by displaying his fraudulent license, while wearing clothes bearing a post-office insignia long after his employment with the government had terminated, <italic>held</italic> sufficient to justify a conviction for violating Minn. St. <cross_reference>614.11</cross_reference>.</block_quote>

<bold>Airplanes — negligence of bailee — statutory liability of</bold> <bold>owner to passenger</bold>. <block_quote> A passenger in an airplane who sustains an injury as a result of a crash caused by the negligence of the aeronaut does not have a cause of action against the owner who consented to its use in the absence of special circumstances, such as, the existence of an agency in fact; a defect in the plane of which the owner had actual or constructive knowledge; or use by a person known to the owner to be reckless or incompetent.</block_quote>

<bold>Appeal and error — review — scope — testimony not objected</bold> <bold>to at trial</bold>. <block_quote> 1. Whether testimony of observations by a police officer, incident to an arrest which is alleged to have been made without a warrant and without probable cause, was properly received into evidence will not be reviewed on appeal where the record of events leading to defendant's apprehension is inconclusive and no objection to the officer's testimony was taken at the trial.</block_quote> <bold>Constitution — due process — guaranty against</bold> <bold>self-incrimination — use of evidence secured by physical</bold> <bold>examination of accused</bold>. <block_quote> 2-3. It is neither a violation of the due process clause of the <cross_reference>Fourteenth</cross_reference> Amendment nor the constitutional guaranties against self-incrimination to receive into evidence X rays, photographs, medical records, and medical testimony showing the results of a physical examination of the accused conducted while he was in custody and secured by the prosecution without objection for use against him at the trial.</block_quote> <bold>Evidence — admissibility — medical evidence secured by</bold> <bold>physical examination of accused</bold>. <block_quote> 4. Where such evidence is not obtained for the purpose of diagnosing and treating the defendant, it may be introduced without violating the statutory doctor-patient privilege.</block_quote>

<bold>Breach of promise — review — sufficiency of evidence</bold>. <block_quote> 1. In an action for breach of promise to marry, <italic>held</italic> the evidence is sufficient to sustain a verdict for plaintiff, and it was error to grant defendant's motion for judgment n. o. v.</block_quote> <bold>Appeal and error — nonappealable order — order granting new</bold> <bold>trial</bold>. <block_quote> 2. That part of an order granting a new trial on all issues, without specifying errors of law occurring at the trial, is not appealable even though blended with, and dependent on, an appealable order granting defendant judgment n. o. v.</block_quote>

<bold>Highways — construction contract — rejection of low bid —</bold> <bold>propriety</bold>. <block_quote> The commissioner of highways provided in proposals for bids on certain highway construction that bidders should submit a noncollusion affidavit with their bids. The low bidder inadvertently failed to include such affidavit but did include a certificate substantially embodying what that affidavit required. The commissioner refused to consider the bid solely on account of the omission of such affidavit. We hold that the paramount mandate of our statute, requiring that contracts such as we have here be let to the lowest responsible bidder, overrides a minor technical defect in submission of the bid that did not affect the substance of the bid or give one bidder an advantage over others, especially where, as here, the purpose of the affidavit was substantially complied with by a certificate included in the bid.</block_quote>

<bold>Dedication — plat of addition to municipality — title to park</bold> <bold>area — effect of vacation</bold>. <block_quote> 1. Under Minn. St. <cross_reference>505.01</cross_reference> dedicator of plat as an addition to municipality retains fee title to areas designated therein as parks and municipality becomes owner of easement in such area in trust for park purposes. Upon vacation of park by district court pursuant to § <cross_reference>505.14</cross_reference> title to portion of plat so dedicated vests in dedicator, free from such easement.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. Provisions of § <cross_reference>501.11</cross_reference>(7), which authorize municipality to receive by grant, gift, devise, or bequest, real property for public park purposes under terms of express trusts, <italic>held</italic> not to apply to park area included within plat dedicated pursuant to § <cross_reference>505.01</cross_reference>. Under § <cross_reference>501.17</cross_reference>, when property is conveyed or devised to municipality for park purposes pursuant to § <cross_reference>501.11</cross_reference>(7), entire estate in such property vests in municipality as trustee for purposes of trust. Under § <cross_reference>505.01</cross_reference> municipality receives only easement in park area included within plat dedicated thereunder, and dedicator retains fee title to such area, subject to this easement. Accordingly, provisions of § <cross_reference>501.11</cross_reference>(7) requiring municipality upon vacation of park area acquired thereunder to "sell, lease, or otherwise dispose of" such area free of the provisions of such trust could not be applied to easement received by municipality by virtue of plat dedicated pursuant to § <cross_reference>505.01</cross_reference> which easement would terminate upon vacation of park area.</block_quote> <bold>Same — same — rights of lot owners</bold>. <block_quote> 3. Purchaser of lot within platted area dedicated as an addition to municipality may rely upon dedication of streets, alleys, and parks or public grounds shown therein and possesses right to use same. Where proceedings pursuant to § <cross_reference>505.14</cross_reference> are undertaken by dedicator of plat to vacate portion of plat dedicated as park area and only notice of such proceedings to owners or occupants of lots located within such plat is by posting and publication as provided for under<page_number>Page 354</page_number> § <cross_reference>505.14</cross_reference>, such notice held not to constitute due process or to bar such owners or occupants from subsequently claiming damages resulting to them from vacation of park.</block_quote> <bold>Same — order vacating park area — propriety</bold>. <block_quote> 4. Evidence considered and held adequate to support findings of court "[t]hat the public interest of the Village of Golden Valley would best be served by vacating that portion of the plat of Spring Green South designated therein as a PARK"; and that "said PARK area is unfit for the use and purpose for which it was donated and dedicated in said plat," and court's order for judgment vacating such "PARK" based upon such findings did not constitute an abuse of its discretion.</block_quote>

<bold>Mandamus — denial of change of venue — review</bold>. <block_quote> 1. Mandamus has been adopted by this court as a proper procedure to review a decision of the trial court denying a motion for a change of venue.</block_quote> <bold>Same — same — same — scope of review</bold>. <block_quote> 2. In reviewing an order of the trial court by mandamus, this court will consider only those matters presented to the trial court. This court sits in review and does not try the facts.</block_quote> <bold>Venue — place of trial — determination</bold>. <block_quote> 3. It is proper, and often preferable, to determine the place of trial prior to the actual trial of a case rather than afterwards.</block_quote> <bold>Same — change of venue to secure fair trial — when proper</bold>. <block_quote> 4. Determination as to whether the place of trial should be changed in the interests of justice rests largely in the exercise of the trial court's discretion. When it appears likely that it is impossible to procure a fair trial before an impartial jury in the county in which the crime was committed, the venue ought to be changed to a county in which an impartial jury can be obtained.</block_quote> <bold>Same — same — same</bold>. <block_quote> 5. An examination of the evidence submitted to the trial court in this case leads to the conclusion that an impartial trial cannot be obtained in Ramsey County and that the venue ought to be changed to a county in which it is more likely that a fair trial can be obtained.</block_quote> <bold>Same — same — selection of county of trial</bold>. <block_quote> 6. Ordinarily a defendant in a motion for a change of venue may not select the county to which the venue should be changed, but that matter rests in the sound discretion of the trial court. In this case, defendant having shown a preference for Hennepin County, we are inclined to grant his request rather than to send the case back to the trial court for a determination of the county to which the venue ought to be changed.</block_quote><page_number>Page 386</page_number>

<bold>Contracts — exculpatory provisions — validity</bold>. <block_quote> 1. Exculpatory provisions of a building construction contract exonerating a contracting party from liability for damages resulting from his own negligence, not in contravention of public policy, are valid and enforceable.</block_quote> <bold>Same — construction — building construction contract —</bold> <bold>liability of parties for damage from fire</bold>. <block_quote> 2. Provisions of a building construction contract stipulating that the owner and contractor are to be liable for damages suffered because of any wrongful act or neglect other than damages suffered from fire, and which require the owner to effect and maintain fire insurance upon the structure being constructed to 100 percent of the insurable value on a Builders Risk Completed Value Form endorsement on a standard fire policy, <italic>held</italic> intended to exonerate the contractor from liability for alleged negligence in causing a fire, not only during the period of construction but for the duration of the contract, including a 1-year guarantee period.</block_quote>

<bold>Libel and slander — libel published in newspaper — statutory</bold> <bold>notice demanding retraction — requirements</bold>. <block_quote> 1. It is not indispensable that the notice of retraction specify each particular part of a published article which contains false and defamatory matter. It is sufficient if, from the article and the notice together, the publisher can, without difficulty, determine the words that contain the sting and which it is expected to retract. The statutory notice is sufficient if it declares the entire publication to be false and defamatory, without specifying those particular parts which constitute libelous matter per se.</block_quote> <bold>Same — newspaper article claimed libelous — portions</bold> <bold>considered</bold>. <block_quote> 2. In a libel suit involving the publication of an article, not only the article itself but the title and headlines are to be considered.</block_quote><page_number>Page 516</page_number> <block_quote> <italic>Held</italic>, that the notice to defendant publisher under the record here was sufficient to comply with Minn. St. <cross_reference>548.06</cross_reference>.</block_quote>

<bold>Judgments — res judicata — unappealed order admitting will</bold> <bold>and denying petition for administration by person claiming to</bold> <bold>be surviving spouse</bold>. <block_quote> An unappealed order of the probate court denying a petition for administration which alleged petitioner was decedent's surviving spouse and which asserted that decedent died intestate was not res judicata of his marital status where concurrently the court granted a petition to prove his will without referring to heirship, continuing for further hearing the issue of whether a widow survived.</block_quote>

<bold>Criminal law — arraignment — what constitutes</bold>.

<bold>Appeal and error — nonappealable order — order denying motion</bold> <bold>to dismiss indictment</bold>.