Volume 282 — Minnesota Reports

<bold>Contracts — executory contract — anticipatory breach —</bold> <bold>rights of nonbreaching party</bold>. <block_quote> 1. An anticipatory breach of an executory contract gives the nonbreaching party the right to rescind the contract and sue upon quantum meruit for the reasonable value of services performed pursuant to the contract.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. Evidence examined and held sufficient to sustain findings that defendants breached an oral farm lease agreement to commence at a future date entitling plaintiff to recover compensation for services and materials furnished.</block_quote>

<bold>Negligence — liability of shopkeeper — business visitor</bold> <bold>falling on ice</bold>. <block_quote> 1. Evidence examined and held to sustain a finding of liability in a "slip and fall" case.</block_quote> <bold>Damages — not excessive</bold>. <block_quote> 2. Jury's award of damages is held to be sustained by the evidence.</block_quote> <bold>New trial — grounds — failure to produce evidence — failure</bold> <bold>to make life insurance application available to defendant</bold>. <block_quote> 3. The order of the trial court denying a new trial is sustained notwithstanding the fact that (a) the trial court declined to instruct the jury that the failure to produce evidence without satisfactory explanation permitted an inference that if produced, it would have been unfavorable to plaintiff, and (b) an application for life insurance executed by an injured plaintiff after an accident and containing statements inconsistent with her testimony at trial was not made available to defendant before the trial was completed. Although the application contained impeaching material, the trial court was justified in concluding that any prejudice suffered by defendant was due to procrastination in instituting formal proceedings to secure it.</block_quote>

<bold>Trial — when question is for court — motion for judgment</bold> <bold>notwithstanding verdict — when granted</bold>. <block_quote> 1. It is only in the clearest of cases where the facts are undisputed and it is clear that all reasonable men can draw but one conclusion from them that the question for determination becomes one of law for the court. On a motion for judgment notwithstanding the verdict, the single<page_number>Page 59</page_number> question is whether there is any competent evidence reasonably tending to sustain the verdict. The motion should be granted only when it appears that the evidence is conclusive against the verdict.</block_quote> <bold>Same — impeachment by prior statements or testimony —</bold> <bold>purpose</bold>. <block_quote> 2. Impeachment of witnesses by prior statements made or prior testimony given concerns their credibility and the weight to be given to their testimony, matters solely for the jury, as the trier of fact, to pass upon with freedom to accept or reject the witness' testimony.</block_quote> <bold>Same — errors in final argument — effect</bold>. <block_quote> 3. Except in extreme cases, errors and omissions of counsel in discussing the applicable law or in the drawing of factual inferences are cured when the jurors are expressly instructed that they are the exclusive judges of the facts and that their recollection of the facts must prevail over any contrary contentions of counsel and further that they must take and apply the law as given by the court and not as presented by counsel.</block_quote> <bold>Same — final argument — comment on evidence</bold>. <block_quote> 4. Once evidence is in, it becomes part of the case and can be commented upon in the closing argument.</block_quote> <bold>Same — same — response to improper argument</bold>. <block_quote> 5. Where counsel in his closing argument pursues an improper line of argument which invites or provokes a reply, it is not reversible error if his adversary engages in similar argument in reply even though such argument might otherwise be objectionable.</block_quote>

<bold>Divorce — support of child — depriving father of visitation</bold> <bold>rights — effect on duty to support child</bold>. <block_quote> 1. Absent unusual circumstances, where a mother having custody of a minor child deprives the father of visitation rights by wrongful or malicious conduct, or where she removes the child to another state without informing the father of the removal or of the whereabouts of the child, the father is relieved of the obligation to continue making support payments required by a divorce decree.</block_quote> <bold>Same — same — same — duty to seek modification of decree</bold>. <block_quote> 2. In such cases, the father may not regard his obligation to pay support as terminating automatically, for the welfare of the children requires the mother, and, upon her default, the father, to seek a modification of the decree to meet changed conditions.</block_quote> <bold>Same — same — modification of decree — sufficiency of</bold> <bold>evidence</bold>. <block_quote> 3. The record submitted upon appeal from an order modifying a divorce decree:</block_quote> <block_quote> (a) Supports the trial court's refusal to change custody of the two minor daughters from the mother to the father upon wrongful removal of the daughters by the mother to a foreign country;</block_quote> <block_quote> (b) Does not disclose adequate evidentiary support for that part of the order granting judgment against the father for accrued support payments totaling $2,400; and</block_quote> <block_quote> (c) Leaves uncertain whether or not the welfare of the children of the marriage requires the father to make future support payments.</block_quote>

<bold>Workmen's compensation — order denying compensation —</bold> <bold>propriety of findings</bold>. <block_quote> 1. Where it appears from an examination of the record that the conclusions of the Industrial Commission to the effect that the employee's claim for injury is simulated, exaggerated, or embellished are manifestly and clearly contrary to the evidence, the order denying compensation is set aside and the case remanded to the commission for further proceedings.</block_quote> <bold>Same — Industrial Commission — jurisdiction over compensation</bold> <bold>claim</bold>. <block_quote> 2. Until it has lost jurisdiction by certiorari, the Industrial Commission retains jurisdiction of a claim for the purpose of reconsidering its decision, and it may set aside the award and grant a new hearing thereon and make such further disposition as shall in its judgment be required. Minn. St. <cross_reference>176.461</cross_reference>.</block_quote> <bold>Same — order on petition to vacate decision of Industrial</bold> <bold>Commission — scope of review</bold>. <block_quote> 3. Where an employee timely petitions the commission to vacate and modify its decision, the order thereon is reviewable by this court pursuant to rules governing appeals in civil actions. Rule 103.04, Rules of Civil Appellate Procedure; Minn. St. <cross_reference>605.05</cross_reference>, subds. 1 and 2; <cross_reference>176.471</cross_reference>, subd. 9; and <cross_reference>176.481</cross_reference>.</block_quote>

<bold>Taxation — exemption — "institution of purely public</bold> <bold>charity."</bold> <block_quote> The issue on appeal is whether a nonprofit corporation is entitled to tax exemption pursuant to Minn. Const. art. <cross_reference>9</cross_reference>, § <cross_reference>1</cross_reference>, and Minn. St. <cross_reference>272.02</cross_reference>(6) as an "institution of purely public charity" when its sole function is operating a summer camp to which some scholarships are given, when charges are made to the clientele and the bulk of the operating expenses is derived from such charges.</block_quote> <block_quote> The basis for all tax exemption is the accomplishment of some public purpose. One of the rules that is well established is that taxation is the rule and exemption is an exception in derogation of equal rights. Therefore, there is a presumption that all property is taxable. In consequence, the burden of proof is on the one seeking the exemption to establish that he is entitled to the exemption. The petitioner herein has not sustained the burden of proof.</block_quote>

<bold>Public employee — discipline of state hospital employee —</bold> <bold>cause</bold>. 1. The action of the Civil Service Board disciplining a state hospital employee found asleep on duty was taken for just cause and supported by substantial evidence. <bold>Same — hearing on proceedings to discipline public employee —</bold> <bold>evidence of prior breaches of duty — relevance</bold>. <block_quote> 2. Testimony before State Civil Service Board of prior breaches of duty by state hospital employee was properly received as bearing upon his competence and efficiency in performing his work.</block_quote>

<bold>Jurisdiction — collision between automobiles owned by Indians</bold> <bold>occurring on highway within reservation — jurisdiction over</bold> <bold>action</bold>. <block_quote> The courts of Minnesota have no jurisdiction over a tort action arising out of a collision between automobiles owned by enrolled members of the Red Lake Band of Chippewa Indians, which occurred on Trunk Highway No. 1 within the territorial limits of the Red Lake Indian Reservation, even though such highway has been improved and is maintained by the Minnesota Department of Highways.</block_quote>

<bold>Workmen's compensation — proceedings — admissibility —</bold> <bold>attending physician's report containing inconsistent accident</bold> <bold>history — procedure if not received</bold>. <block_quote> 1. Where an employee seeking workmen's compensation testifies as to the mechanics of the accident which allegedly initiated his disability, a prior statement made by him inconsistent with this testimony is admissible as an admission or for purposes of impeachment. Strict rules of evidence do not apply in workmen's compensation proceedings and the compensation referee, as trier of fact, could permit proof of such prior inconsistent statement by receiving in evidence the written report of an attending physician, filed routinely with the commission as required by law, which attributes the inconsistent accident history to the employee. However, because such reports are not verified and the author of the report cannot be cross-examined if this course is followed, the referee may refuse to receive the report in evidence. In such event, in the absence of circumstances which would cause serious prejudice, the party offering the report should be given reasonable opportunity to secure the testimony embraced in the report by producing the author as a witness or by means of deposition. Rejection of the report coupled with the denial of the alternative procedure constitutes prejudicial error in a case where the issue to which the offered testimony relates is critical.</block_quote> <bold>Same — same — same — employer's report of accident</bold>. <block_quote> 2. Although an employer is required by the Workmen's Compensation Act to file a report of an accident involving an employee, this report cannot be received in evidence against the employee for any purpose even though the description of the accident contained in the report differs from the testimony of the employee with respect to the accident.</block_quote>

<bold>Safety Responsibility Act — failure of insured to report</bold> <bold>change of automobile — effect on claim of third party</bold> <bold>against insurer</bold>. <block_quote> The Safety Responsibility Act, Minn. St. <cross_reference>170.40</cross_reference>, subd. 6(1), which provides that the liability of the insurer becomes absolute when damage or injury occurs and that no violation of the policy shall defeat or void said policy, was enacted to provide compensation to those injured by an automobile operated by one who is required to provide liability insurance as a condition for not having his registration certificate suspended or revoked. Therefore, failure of the insured to report the fact that he had replaced the automobile described in the policy, as required by the policy, did not defeat the claim of an injured third party.</block_quote>

<bold>Judgments — estoppel by verdict — verdict finding driver</bold> <bold>negligent — use in passenger's action against car owner</bold>. <block_quote> Plaintiff in this action was a passenger in an automobile driven by her husband, William J. McCarty, Jr., when it collided with an automobile driven by Rodney Tweedy. Plaintiff and her husband brought a prior suit against Tweedy to recover for their injuries. Tweedy answered and counterclaimed against plaintiff's husband for contribution if Tweedy were found liable to Mrs. McCarty. Tweedy thereafter impleaded Budget Rent-A-Car, the owner of the car driven by plaintiff's husband, seeking contribution if Tweedy were held liable to plaintiff. The jury exonerated Tweedy and held that Mr. McCarty was solely responsible for the collision. In this subsequent action, plaintiff seeks summary judgment against Budget Rent-A-Car on the grounds that it is collaterally estopped from denying that her husband was solely responsible for the collision and that, under our Safety Responsibility Act, Minn. St. <cross_reference>170.54</cross_reference>, Budget is liable to her for the amount of the damages found by the jury in the former action. <italic>Held</italic> that collateral estoppel under the facts of this case is not available to plaintiff.</block_quote>

<bold>Dedication — easement for alley purposes — extent</bold>. <block_quote> 1. For many years plaintiff and her predecessor in title gained access to their property by use of a driveway and a strip connecting the driveway with their garage, both the driveway and the strip being located on property owned by defendant. <italic>Held</italic>, a 1907 dedication of private easement by defendant's predecessor in title did not justify plaintiff's use of the driveway since it appears that the dedication did not encompass the area being used.</block_quote> <bold>Boundary — location — establishment — proof required</bold>. <block_quote> 2. In Minnesota there are only three ways in which the practical location of a boundary may be established: (1) The location relied upon must have been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations; (2) the line must<page_number>Page 510</page_number> have been expressly agreed upon between the parties claiming the land on both sides thereof, and afterwards acquiesced in; or (3) the parties whose rights are to be barred must have silently looked on with knowledge of the true line while the other party encroached upon it, or subjected himself to expense in regard to the land, which he would not have had the line been in dispute. Since the effect of a practical location of boundary is to divest one of a conceded title by deed, the evidence establishing such a location must be clear, positive, and unequivocal. <italic>Held</italic>, the evidence is not sufficiently clear, positive, and unequivocal to sustain the trial court's holding that a practical location of boundary justified plaintiff's use of the driveway.</block_quote> <bold>Registration of title — Torrens action — persons bound —</bold> <bold>status of purchaser from holder of registered title</bold>. <block_quote> 3. The obvious intent of the Torrens Act is to confer a conclusive title on the holder of a certificate. One served in a registration proceeding is bound by that proceeding, and even excusable neglect will not relieve him of his failure to appear. A subsequent purchaser from the holder of a registered title is in good faith within the meaning of the Torrens Act even if he has knowledge of an interest extinguished by the registration.</block_quote>

<bold>Criminal law — municipal court conviction — appeal to</bold> <bold>district court — time of trial</bold>.