Volume 269 — Minnesota Reports

<bold>Habeas corpus — alleged violation of constitutional rights —</bold> <bold>remedy</bold>. <block_quote> A writ of habeas corpus, subject to certain conditions, will lie to test whether cruel and unusual treatment of a state prisoner is being inflicted during his incarceration in violation of his constitutional rights.</block_quote> <block_quote> State ex rel. Richter v. Swenson, <cross_reference>243 Minn. 42</cross_reference>, <cross_reference>66 N.W.2d 17</cross_reference>, and State ex rel. Koalska v. Swenson, <cross_reference>243 Minn. 46</cross_reference>, <cross_reference>66 N.W.2d 337</cross_reference>, are overruled to the extent that they conflict with the decision in this case.</block_quote>

<bold>Ordinances — parking restrictions — purpose</bold>. <block_quote> 1. An ordinance which prohibits parking on public streets for more than 2 hours between 8 a. m. and 6 p. m. has a valid public purpose.</block_quote> <bold>Same — same — claimed unconstitutionality</bold>. <block_quote> 2. A defendant who is prosecuted for a parking violation under one section of a municipal ordinance may not assert as a defense the unconstitutionality of other sections which do not affect him.</block_quote> <bold>Same — same — conviction for parking in unposted area —</bold> <bold>constitutionality</bold>. <block_quote> 3. The fact that a municipality posts notice of citywide parking restrictions in some areas within its jurisdiction and not in others does not render unconstitutional a conviction for parking in an unposted area.</block_quote>

<bold>Fraud — liability for false representation — essentials</bold>. <block_quote> 1. 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 — proof — evidence admissible</bold>. <block_quote> 2. Where fraud and deception are in issue, the evidence must necessarily take a wide range, and collateral facts are admissible if they have a logical tendency to throw light on the issue.</block_quote> <bold>Damages — for fraud — not excessive</bold>. <block_quote> 3. Before instructing the jury the trial court invited counsel to make suggestions as to "what may be considered as damages and what may not be." No suggestions were made by counsel, and the court thereupon instructed the jury as to the correct measure of damages in fraud, to which instruction no objections or exceptions were taken. The jury considered items of damages and returned a verdict in an aggregate amount approximately $17,000 less than the amount which the evidence tended to establish. Under the circumstances, defendants' claim that the verdict may have included improper items of damage and is therefore excessive is without merit.</block_quote>

<bold>Taxation — multistate business — taxing income from</bold> <bold>operations carried on wholly outside state</bold>. <block_quote> 1. The determination of the Board of Tax Appeals that part of taxpayer's production income was apportionable to Minnesota has no support in its findings. Neither the evidence nor the record as a whole reasonably supports such determination.</block_quote> <bold>Same — income tax — income assignable to state —</bold> <bold>construction of statute</bold>. <block_quote> 2. The concern of this court is only with the extent to which Minn. St. <cross_reference>290.17</cross_reference> reaches, and that is to be measured by its terms, not by what is constitutionally permissible</block_quote> <bold>Same — multistate business — taxing income from operations</bold> <bold>carried on wholly outside state</bold>. <block_quote> 3. The board reached sound and inescapable conclusions in determining that the taxpayer's production operations and its manufacturing and marketing operations constitute separate businesses and that paragraphs (3) and (4) of § <cross_reference>290.17</cross_reference> require that where a taxpayer has more than one nonpersonal service business each must be dealt with separately and income from each may be assigned or apportioned to Minnesota only if that particular business is conducted in Minnesota, either in whole or in part. The board's disregard of these conclusions by application of a formula under § <cross_reference>290.19</cross_reference> is plainly contrary to the legislative mandate embodied in § <cross_reference>290.17</cross_reference>(3, 4). There is no basis under the board's findings or the statute for adding to Skelly's marketing income any percentage of income derived from production operations carried on wholly outside of Minnesota and fully earned at the point of production.</block_quote> <bold>Same — same — taxing income — statute applicable</bold>. <block_quote> 4. The board having found conclusively that the taxpayer's production operations and its manufacturing and marketing operations constitute separate, independent businesses; that only its marketing operations are carried on within the borders of Minnesota; and that the income of each has been determined correctly and is independent<page_number>Page 352</page_number> of that of the other, <italic>held</italic> that only § <cross_reference>290.17</cross_reference>(3) applies as the governing tax statute.</block_quote>

<bold>Appeal and error — appeal from probate court — timeliness —</bold> <bold>sufficiency of notice of filing of order</bold>. <block_quote> Service of notice that a described will was "allowed" by a probate court on a specific date constituted "service of notice of the filing of the order" within the meaning of Minn. St. <cross_reference>525.712</cross_reference>, limiting the time to appeal from orders, judgments, and decrees of the probate court, where the described order was in fact filed when executed.</block_quote>

<bold>Railroads — collision at crossing — failure to give warning</bold> <bold>signal — sufficiency of evidence</bold>. <block_quote> 1. Where engineer and fireman of locomotive testified that whistle and bell of locomotive had been sounded for crossing where collision with automobile occurred; where another witness who lived in vicinity of crossing testified he had heard whistle of locomotive as train approached the crossing and just prior to collision; and where plaintiff's only evidence on this issue was her testimony that as passenger in automobile involved in collision she had not heard such signals; that she had not been paying particular attention; and that car windows on side of approaching train had been closed just prior to the collision, <italic>held</italic> plaintiff's negative testimony did not offset positive definite testimony that whistle and bell had been sounded or create jury question on this issue.</block_quote><page_number>Page 543</page_number> <bold>Same — extrahazardous crossing — safety measures required</bold>. <block_quote> 2. Where railroad crossing is such that jury finds it to be extrahazardous, it may then find that reasonable care on part of railroad company maintaining it required that it maintain warning signs or signals or take precautions with respect thereto beyond those prescribed by statute or by regulations of the Minnesota Railroad and Warehouse Commission.</block_quote> <bold>Cases cited</bold>. <block_quote> 3. Cases cited wherein it has been held as a matter of law that crossing was not extrahazardous under evidence presented therein.</block_quote> <bold>Same</bold>. <block_quote> 4. Cases cited wherein it has been held that whether crossing was extrahazardous constituted fact question for jury under evidence presented therein.</block_quote> <bold>Railroads — collision at crossing — sufficiency of evidence</bold>. <block_quote> 5. Where evidence disclosed that highway ran parallel to railroad tracks for a substantial distance before tracks crossed it at a 60-degree angle; where plaintiff and other witnesses each testified that because of this situation at night while approaching the crossing from the north in an automobile, they were led to believe that lights approaching it from the southwest might have been those of an automobile rather than a locomotive; where a number of witnesses testified that because of this confusion they had become involved in collisions with trains at crossing shortly before or after accident involved here; where expert in crossing safety regulations employed by Railroad and Warehouse Commission expressed opinion that at night lights of oncoming vehicles approaching crossing from southwest were likely to confuse motorists on highway approaching it from north; and where in opposition to such testimony railroad company submitted evidence that headlight of engine involved in accident had been operating at time of accident; that it was 14 inches in diameter and 10 feet 6 inches above rails in contrast to lights of oncoming automobiles which ordinarily were from 26 to 32 inches above rails; that in addition to engine headlight, 2 step lights and 2 marker lights on locomotive were lighted as train approached crossing; and that there was an unobstructed view of the terrain in the area from which the locomotive was approaching crossing, <italic>held</italic> such evidence created jury questions as to whether crossing was extrahazardous and, if so, whether in the exercise of due care railroad<page_number>Page 544</page_number> company should have furnished additional warning signals or signs or taken other precautions beyond those provided for by statute or by regulations of the commission. Since it cannot be determined upon which claim of negligence verdict was based, new trial ordered as to defendant railroad company on issue of negligence only.</block_quote> <bold>Actions — survival — wife's action for negligence of deceased</bold> <bold>husband</bold>. <block_quote> 6. Under this court's decisions in Poepping v. Lindemann, <cross_reference>268 Minn. 30</cross_reference>, <cross_reference>127 N.W.2d 512</cross_reference>, and Pelowski v. Frederickson, <cross_reference>263 Minn. 371</cross_reference>, <cross_reference>116 N.W.2d 701</cross_reference>, doctrine of marital immunity no longer constitutes bar to an action by a surviving spouse against the estate of deceased spouse based upon negligence of the latter during his lifetime. Accordingly, here plaintiff is entitled to judgment against the special administrator of the estate of her husband, in accordance with jury verdict.</block_quote> <bold>Negligence — proof — similar accidents</bold>. <block_quote> 7. Evidence as to similar accidents suffered by others under similar circumstances at place of injury is admissible, if not too remote in time, to show either the dangerous character of the place, or that defendant had notice of its dangerous character. <italic>Held</italic>, court did not err in admitting testimony of witnesses with respect to similar accidents under similar circumstances at crossing involved, occurring shortly prior or shortly subsequent to accident in litigation.</block_quote> <bold>Evidence — expert witness — qualifications</bold>. <block_quote> 8. Determination of the adequacy of qualifications of expert witness rests within sound discretion of trial court. Where expert witness for many years had been a chief engineer of Railroad and Warehouse Commission and its investigator as to adequacy of protection at grade railroad crossings, <italic>held</italic> court did not abuse its discretion in holding that his background qualified him to testify with respect to possible hazards of railroad crossing.</block_quote>