Volume 287 — Minnesota Reports

<bold>Trial — claimed improper argument — duty of court</bold>. <block_quote> 1. Where the only impropriety in plaintiff's final argument was an inappropriate reference to defenses alleged in defendant's answer but not relied upon at trial, and defendant did not object during or at the conclusion of plaintiff's argument, such remarks did not constitute misconduct so flagrant as to require the trial court to act on its own motion.</block_quote> <bold>Damages — not excessive</bold>. <block_quote> 2. Evidence considered and held adequate to support a verdict of $10,000.</block_quote>

<bold>Negligence — res ipsa loquitur — when applicable</bold>. <block_quote> 1. The following conditions are necessary for the application of the doctrine of res ipsa loquitur: First, the event must be of a kind which ordinarily does not occur in the absence of negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and, third, it must not have been due to any voluntary action or contribution on the part of the plaintiff. The doctrine represents nothing more than a form of circumstantial evidence from which an inference of negligence may be drawn. The jury is permitted, not compelled, to make the inference.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. The doctrine of res ipsa loquitur is inapplicable if the accident may reasonably be attributable to one or more causes for which defendant is not responsible.</block_quote> <bold>Same — same — instruction on — effect</bold>. <block_quote> 3. Although the instruction on res ipsa loquitur may have been error, in the context of the entire charge the instruction on res ipsa loquitur became a mere statement of an abstract principle of law, even though arguably not pertinent to the case, for which reversal is not justified. It is clear that the judge instructed on all aspects of negligence and provided the jury with a proper explanation of the concept of negligence. Therefore, the instructions on res ipsa loquitur may well be classified as harmless error.</block_quote> <bold>Trial — instructions — refusal of instruction — propriety</bold>. <block_quote> 4. We find no merit in defendant's contention that the court erred in refusing to instruct on assumption of risk. That defense was not presented in the pleadings nor was it brought into evidence.</block_quote><page_number>Page 30</page_number> <bold>Same — closing argument — propriety</bold>. <block_quote> 5. The trial court properly refused to consider plaintiff's argument highly improper or likely to influence the result.</block_quote> <bold>Damages — not excessive</bold>. <block_quote> 6. The jury was justified in setting the monetary equivalent of plaintiff's damages as it did, and the trial court was within its discretion in affirming the jury's award. The verdict finds ample support in the evidence.</block_quote>

<bold>Criminal law — disorderly conduct — what constitutes</bold>. <block_quote> 1. The offense of disorderly conduct has been defined as conduct of such a nature as will affect the peace and quiet of persons who may witness it and who may be disturbed or driven to resentment by it. It is not necessary that actual commotion occur. It is sufficient if defendant's conduct is likely to annoy, disturb, or arouse anger.</block_quote> <bold>Appeal and error — review — findings of court</bold>. <bold>Criminal law — trial — ordinance violation — proof required</bold>. <block_quote> 2. We are governed by the rule that findings of a court in an action tried without a jury are entitled to the same weight as a jury verdict and will not be reversed on appeal unless the findings are manifestly against the evidence. A violation of a city ordinance<page_number>Page 137</page_number> need only be established by a fair preponderance of the evidence.</block_quote> <bold>Same — disorderly conduct — what constitutes</bold>. <block_quote> 3. In regard to the second count alleging disorderly conduct, the fact that the obscenities were used in and around the confines of the police station is insignificant, since one of the purposes of the ordinance is to protect citizens, experienced in these matters or otherwise, from enduring such abuse in the course of their duties. Thus, the fact that the vile and abusive language may not have been overheard by members of the public does not prevent it from being a violation of the ordinance.</block_quote> <bold>Same — conviction of carrying concealed weapon — sufficiency</bold> <bold>of evidence</bold>. <block_quote> 4. The evidence is sufficient to sustain the additional conviction of defendant Michael Bartelmy for carrying a concealed weapon in violation of St. Paul Legislative Code, § <cross_reference>425.01</cross_reference>.</block_quote>

<bold>Evidence — opinions of experts — weight given</bold>. <block_quote> 1. The opinions of experts are not ordinarily conclusive on the jury but are items of evidence to be considered along with the other evidence in the case. This court follows the modern tendency to make no distinction between evidential and ultimate facts subject to expert opinion.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. While the questions as to cause, character, and extent of plaintiff's injuries and as to factors to be considered in arriving at a reasonably correct prognosis seem to be highly scientific, the jury is still the tribunal to which questions of this kind are submitted for determination.</block_quote> <bold>Damages — not inadequate</bold>. <block_quote> 3. The trial court in its instructions made it clear that plaintiff would be entitled to recover for any pain, disability, or emotional distress experienced by reason of her injuries. It was for the jury to determine from all the evidence the amount plaintiff should be compensated for such pain and suffering, and under the evidence herein the verdict of $1,000 was not so entirely inadequate as to require a new trial.</block_quote> <bold>Same — medical expenses — effect of stipulation</bold>. <block_quote> 4. While the amount of the medical expenses incurred by plaintiff<page_number>Page 150</page_number> husband for the care of his wife at the time of trial was stipulated, the causal relationship of these expenses to the accident was not stipulated but left to the jury. Thus, the stipulated medical expenses were not a conclusive measure of the severity of plaintiff wife's injury.</block_quote> <bold>New trial — grounds — inadequacy of damages — discretion of</bold> <bold>trial court</bold>. <block_quote> 5. Where the evidence is of such character that it might well leave some doubt regarding the extent of the physical injuries complained of and the verdict returned is not a nominal one, this court will not ordinarily interfere with the trial court's exercise of its discretion in denying a new trial. It is only when the award of damages is manifestly and entirely inadequate and it clearly appears that the award was a result of a compromise between the right of recovery and the amount of damages sustained that a new trial will be granted.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 6. The evidence in the instant case is insufficient to establish that the damages awarded to plaintiffs were due to the influence of passion or prejudice or that the verdicts were so inadequate as to give rise to a clear abuse of discretion on the part of the trial court in denying a motion for a new trial.</block_quote> <bold>Damages — refusal of requested instruction — propriety</bold>. <block_quote> 7. Plaintiffs' complaint that the trial court's rejection of the requested instruction on the husband's claim of future loss of services was improper is without foundation. The fact is, the record contradicts such claim since it fails to establish future inability to perform ordinary chores or services around the household.</block_quote>

<bold>Automobiles — negligence of driver — rear-end collision —</bold> <bold>proximate cause</bold>. <block_quote> 1. The trial court erred in not setting aside a special verdict in which the jury found defendant driver negligent but that her negligence was not a direct cause of the accident, when the facts disclose that any negligence on the part of defendant driver must necessarily have a direct causal connection with the ensuing collision.</block_quote> <bold>Same — same — same — same — duty of trial court</bold>. <block_quote> 2. In rear-end collision where driver of rear car is found by a jury to have been negligent and there is no superseding, intervening cause of said accident, the trial court has the obligation to find that such negligence was a direct cause of said accident.</block_quote>

<bold>Negligence — imputation of servant's negligence to master —</bold> <bold>actions to which rule is applied</bold>. <block_quote> The rule imputing the contributory negligence of a servant to his master in the action of the master against a third party, prospectively overruled in Weber v. Stokely-Van Camp, Inc. <cross_reference>274 Minn. 482</cross_reference>, <cross_reference>144 N.W.2d 540</cross_reference>, decided July 29, 1966, applies to causes of action arising prior to the date of that decision even though trial takes place thereafter.</block_quote><page_number>Page 175</page_number>

<bold>Contribution — among joint tortfeasors — judicial admission</bold> <bold>of compromising defendant's joint liability</bold>. <block_quote> Where defendant before trial compromised and settled claim against itself in exchange for release of all alleged tortfeasors, and subsequent trial of compromising defendant's contribution claim against third-party defendant resulted in findings that settlement was reasonable and that third-party defendant was causally negligent, compromising defendant's and third-party defendant's conduct at trial is held to constitute judicial admission of compromising defendant's joint liability for purpose of finding common liability essential to right to recover contribution.</block_quote>

<bold>Criminal law — breach of peace conviction — sufficiency of</bold> <bold>evidence</bold>. <block_quote> 1. Evidence reviewed and held to support a conviction for disturbing the peace within the meaning of Minneapolis Code of Ordinances, § 870.060.</block_quote> <bold>Constitution — rights of free expression — extent —</bold> <bold>disturbance of religious service</bold>. <block_quote> 2. The imposition of criminal sanctions for disturbing a private religious service during its most solemn and reverential part by charging the cleric conducting the service with hypocrisy in a loud voice and refusing to leave the church until ejected forcibly does not deprive the offending person of constitutionally protected rights of free expression.</block_quote>