Volume 296 — Minnesota Reports

<bold>Criminal law — confessions — determination of voluntariness</bold> <bold>— degree of proof</bold>. <block_quote> The trial court should follow the preponderance-of-the-evidence, not the reasonable-doubt, standard in determining the admissibility of a confession. State v. Keiser, <cross_reference>274 Minn. 265</cross_reference>, <cross_reference>143 N.W.2d 75</cross_reference> (1966), overruled to the extent it is inconsistent.</block_quote>

<bold>Workmen's compensation — injury not arising out of and in</bold> <bold>course of employment</bold>.

<bold>Automobiles — negligence of drivers — apportionment</bold>. <bold>Damages — claimed inadequacy — propriety of additur</bold>. <block_quote> The evidence is sufficient to sustain the jury verdict apportioning negligence between two automobile drivers, 60 percent to defendant and 40 percent to plaintiff. Also, the trial court did not abuse its discretion in providing an additur to the jury verdict.</block_quote><page_number>Page 53</page_number> <bold>Trial — instructions — specific instruction on burden of</bold> <bold>proof for plaintiff only — effect</bold>. <block_quote> Where the trial judge in his instructions before voir dire correctly instructed on the burden of proof for the parties generally, but in his final instructions instructed specifically regarding the plaintiff's burden of proof only, while omitting such specific instruction with respect to the defendant's burden of proof, such omission was not error of fundamental law under Rule 51, Rules of Civil Procedure.</block_quote>

<bold>Judgments — appeal — distinction between authorized and</bold> <bold>unauthorized judgments</bold>. <block_quote> 1. An authorized judgment is subject only to direct appeal. An unauthorized judgment may be appealed directly or is subject to<page_number>Page 76</page_number> motion to vacate after the time for direct appeal has expired, and an order denying that motion is appealable. An unauthorized judgment arises by reason of ministerial error and not from judicial error.</block_quote> <bold>Same — judgment entered against defaulting garnishee without</bold> <bold>court order — effect</bold>. <block_quote> 2. A judgment against a defaulting garnishee entered by the clerk of court without an appropriate court order is an unauthorized judgment and is subject to a motion to vacate.</block_quote> <bold>Same — judgment against defaulting garnishee — when</bold> <bold>authorized</bold>. <block_quote> 3. A judgment against a defaulting garnishee is authorized only if notice is given to the garnishee of the amount of the proposed judgment and the date, time, and place the applicant will seek a court order for such judgment.</block_quote> <bold>Same — judgment entered against defaulting garnishee without</bold> <bold>court order — effect</bold>. <block_quote> 4. The failure to give notice to the garnishee and to obtain a court order for judgment are sufficient grounds to vacate the judgment under Minnesota procedural rules.</block_quote>

<bold>Eminent domain — condemnation proceedings — appeal from gross</bold> <bold>award and apportionment — jurisdiction of court</bold>. <block_quote> 1. Where a gross award and an apportionment thereof is made by commissioners between fee owners and their lessee in condemnation proceedings, an appeal from the award by the fee owners challenging both the gross award and the apportionment vests jurisdiction in the district court over the gross award, including that part apportioned to the lessee.</block_quote><page_number>Page 165</page_number> <bold>Same — same — apportionment of gross award between lessors</bold> <bold>and lessee</bold>. <block_quote> 2. Where by the terms of a written lease either party may cancel the lease within 30 days of a public taking and the lessee waives all claims on account of such taking as against the lessor, leaving only the lessee's claims, if any, against the condemnor for damages to his leasehold estate and to leasehold improvements, the lessee is not entitled to share in the gross award made to the owners beyond the proportional value of a 30-day leasehold advantage.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. Where it appears from the unchallenged statement of a lessor that, by the terms of a written lease, the leasehold improvements installed by lessee are to be the property of the lessors on expiration of the lease, the lessee cannot recover for the value of the improvements when the property is taken for a public use.</block_quote>

<bold>Waters and watercourses — placing fill in public lake without</bold> <bold>permit — summary judgment enjoining — propriety</bold>. <block_quote> 1. Since it is uncontested that defendant placed fill below the established high water level of a public lake without a permit in violation of Minn. St. <cross_reference>105.42</cross_reference>, the trial court properly granted summary judgment enjoining defendant from placing such fill. The question of public detriment is precluded at this time since defendant failed to appeal the commissioner's order denying him a permit.</block_quote> <bold>Same — same — removal of fill</bold>. <block_quote> 2. Defendant should not be required to remove from the lake fill placed by him before the commissioner denied his permit.</block_quote> <bold>Appeal and error — appeal from summary judgment — issue not</bold> <bold>properly before court</bold>. <block_quote> 3. Whether the commissioner's order denying defendant a permit is null and void because it was not made within 60 days after the completion of the hearing is not properly before this court since the issue was not raised before the trial court.</block_quote>

<bold>Insurance — automobile liability insurance —</bold> <bold>uninsured-motorist coverage — restrictions repugnant to</bold> <bold>statute — effect</bold>. <block_quote> 1. Under the requirement of Minn. St. 1967, § <cross_reference>72A.149</cross_reference>, subd. 1, that each <italic>policy</italic> of automobile insurance offer uninsured-motorist coverage with at least $10,000/20,000 limits, policy provisions purporting to limit the coverage of each policy when more than one policy applies to the loss suffered are void as repugnant to the statute.</block_quote> <bold>Same — same — same — effect of availability of</bold> <bold>medical-expense insurance</bold>. <block_quote> 2. Where the insured has purchased medical-expense insurance to cover expenses actually incurred without regard for fault or recovery from a tortfeasor, the insurer cannot use the availability of that insurance to dilute the uninsured-motorist coverage.</block_quote>

<bold>Unemployment compensation — unemployment benefits —</bold> <bold>misconduct justifying forfeiture — use of hostile language</bold> <bold>to patient</bold>.

<bold>Criminal law — conviction of robbery and murder —</bold> <bold>identification evidence — sufficiency</bold>. <block_quote> 1. The positive in-court identification of defendant as the gunman in a robbery-murder, made by a victim of the robbery and<page_number>Page 307</page_number> eyewitness to the shooting homicide of his father, was sufficient to sustain the jury's verdict of guilt. Secondary identification by a stranger to the crime, placing defendant in the vicinity of the crime, tended to corroborate the primary eyewitness identification.</block_quote> <bold>Same — lineup — propriety</bold>. <block_quote> 2. A police lineup conducted a few days after the crime, in which defendant was conspicuously the tallest person, was not impermissibly suggestive and did not create a substantial likelihood of misidentification of defendant there or at the subsequent trial.</block_quote> <bold>Same — trial — nondisclosure of police investigation report</bold> <bold>prior to trial — effect</bold>. <block_quote> 3. Defendant was not denied due process by the trial court's refusal to order the prosecution to make a pretrial production of a police investigation report. Unlimited pretrial discovery of its contents as to discarded investigative "leads" is neither authorized nor required. No prejudice resulted from nondisclosure of its contents as to the inaccuracy in the identification witness' on-the-scene physical description of defendant's height where the fact of such misdescription was known to defendant and made known to the jury in cross-examination and final argument.</block_quote>

<bold>Mechanics lien — action to foreclose — sufficiency of</bold> <bold>evidence — nature of judgment entered — creation of lien —</bold> <bold>consent of owner</bold>.

<bold>Drainage — proceedings to establish county ditch — appeals to</bold> <bold>district court — effect — effect of order appealed from</bold>. <block_quote> 1. In drainage proceedings, appeals to the district court under Minn. St. <cross_reference>106.631</cross_reference>, subd. 4, shall be trials de novo. The appellants have the burden of overcoming the prima facie validity of the order from which they appeal.</block_quote> <bold>Same — same — dismissal on appeal — sufficiency of grounds</bold>. <block_quote> 2. Drainage proceedings cannot be invalidated on the grounds that the public interest in conservation exceeds the landowners' interest in the use of their property. The legislature has provided other statutory methods of balancing these interests, and those<page_number>Page 341</page_number> methods compensate the owners for the loss of use of their property.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 3. The existence of a Federal crop-stabilization program in the proposed drainage area is not grounds to dismiss a drainage proceeding.</block_quote> <bold>Same — proceedings to establish ditch — finding required with</bold> <bold>respect to public health</bold>. <block_quote> 4. Under Minnesota drainage statutes, a finding must be made as to whether the proposed drainage ditch does or does not promote public health.</block_quote>

<bold>Automobiles — negligence of driver — speed — preferred</bold> <bold>evidence</bold>. <block_quote> 1. In motor vehicle accident cases, opinion testimony of eyewitnesses as to speed is preferred over opinion testimony of so-called accident reconstruction experts.</block_quote> <bold>Same — same — same — opinion of expert</bold>. <block_quote> 2. Where such eyewitness testimony is nonexistent or of little aid to the jury in resolving a disputed issue of speed, a witness qualified as an expert may, based upon the length of skid marks, give his opinion as to speed where there exists sufficient factual data to assure a reasonably complete and accurate reconstruction of the accident involved.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 3. Upon the record in this case, it was not error to admit opinion testimony of a qualified engineer concerning the speed of defendants'<page_number>Page 373</page_number> automobile and to deny defendants' motion for a new trial upon claimed miscalculation of the expert in arriving at his opinion, discovered and asserted by defendants after trial.</block_quote>

<bold>Actions — failure to prosecute — quashing of certiorari</bold> <bold>proceeding — propriety</bold>.

<bold>Automobiles — automobile-pedestrian accident — negligence of</bold> <bold>pedestrian</bold>. <block_quote> 1. The trial court correctly concluded that the evidence in this case presented a question for the jury on the issue of whether a pedestrian was negligent. Unless a verdict is manifestly and palpably contrary to the evidence viewed in the light most favorable to the prevailing party, it must be sustained by this court.</block_quote> <bold>Damages — loss in earning capacity — sufficiency of evidence</bold> <bold>— propriety of instructions</bold>. <block_quote> 2. Plaintiff established by a fair preponderance of the evidence the extent to which impairment of earning capacity was reasonably certain to occur. The trial court did not err in instructing the jury that in assessing damages it could consider future loss or diminution in plaintiff's earning capacity.</block_quote> <bold>Same — remittitur — propriety</bold>. <block_quote> 3. Based upon the evidence, we conclude that the trial court properly exercised its judicial discretion in reducing the jury's verdict and that the verdict, as reduced, was not excessive.</block_quote> <bold>Same — award exceeding complaint</bold>. <block_quote> 4. In the absence of circumstances which might prejudice defendant, plaintiff's recovery is not limited to the amount of damages requested in his complaint.</block_quote> <bold>Verdict — five-sixths verdict — construction of statutes</bold>. <block_quote> 5. Minn. St. <cross_reference>546.17</cross_reference>, authorizing a jury in a civil action to return a verdict, after 6 hours of deliberation, upon agreement of five-sixths of its number, remains in force and continues to modify the provisions of Minn. St. <cross_reference>593.01</cross_reference>, requiring a unanimous verdict by a petit jury.</block_quote>

<bold>Unemployment compensation — discharge for reasons other than</bold> <bold>misconduct — review of findings of commissioner of manpower</bold> <bold>services</bold>. <block_quote> 1. Viewing the findings of the commissioner of the Department of Manpower Services in the light most favorable to the decision below, there is evidence reasonably tending to sustain the conclusion that claimant was discharged for reasons other than misconduct.</block_quote> <bold>Same — erroneous application of burden of proof by appeal</bold> <bold>tribunal — right of commissioner of manpower services to</bold> <bold>apply correct burden on appeal</bold>. <block_quote> 2. Where the commissioner of the Department of Manpower Services by statute has the authority to affirm, modify, or set aside the findings of fact or decision of the department's appeal tribunal and where the appeal tribunal has applied the wrong burden of proof, the commissioner may on appeal weigh the evidence under the correct burden of proof and need not remand to the appeal tribunal.</block_quote> <bold>Same — reason for claimant's discharge — effect of decision</bold> <bold>by system board of adjustment</bold>. <block_quote> 3. The decision of a system board of adjustment, as provided by the Railway Labor Act, <cross_reference>45 USCA, § 151</cross_reference>, et seq., upholding claimant's discharge was not res judicata as to the case before the Minnesota Department of Manpower Services where no record of the findings and the issues litigated before the system board was offered into evidence before the Department of Manpower Services.</block_quote>

<bold>Attorney and client — disbarment for murder conviction —</bold> <bold>propriety — refusal to permit respondent to advise other</bold> <bold>prisoners</bold>.

<bold>Criminal law — guilty plea — refusal to permit withdrawal</bold>.

<bold>Criminal law — postconviction proceeding — denial of relief</bold> <bold>— propriety</bold>.

<bold>Judgments — default judgment — refusal to open — propriety</bold>.

<bold>Trial — negligence action — special verdict finding no</bold> <bold>liability but failing to determine damages — effect</bold>.

<bold>Divorce — custody of child — transfer to father — propriety</bold>.

<bold>Appeal and error — nonappealable order — dismissal of appeal</bold>.