Volume 80 — South Dakota Reports

<bold>1. Workmen's Compensation.</bold> Industrial Commissioner's findings of fact, supported by substantial, credible and reasonable evidence, must be sustained. SDC 64.0101 et seq. <bold>2. Workmen's Compensation.</bold> Disease, or aggravation of existing disease, is compensable, but such disease or aggravation must be assignable to a definite time, place and circumstance, and disease, or aggravation of such disease, must result from unusual exertion. SDC 64.0101 et seq. <bold>3. Workmen's Compensation.</bold> A purpose of Workmen's Compensation Law is to transfer from worker to employer, and ultimately to the public, a greater portion of economic loss due to industrial accidents and injuries, and Law is remedial in character and entitled to liberal construction. SDC 64.0101 et seq.<page_number>Page 84</page_number> <bold>4. Workmen's Compensation.</bold> It is not province of appellate court to pass on weight of evidence in compensation proceeding where it is conflicting in substantial particulars and to determine where preponderance lies. SDC 64.0101 et seq. <bold>5. Workmen's Compensation.</bold> Evidence was sufficient to establish that unusual exertion on January 15 and 16 as found by Commissioner aggravated a pre-existing disease and caused, precipitated, or contributed to death of employee on morning of January 18 from coronary thrombosis, entitling claimant to death benefits. SDC 64.0101 et seq. <bold>6. Evidence.</bold> Expert testimony is no stronger than the facts upon which it is predicated. <bold>7. Evidence.</bold> The value of an opinion from an expert is dependent on and entitled to no more weight than facts as a foundation therefor, and unless basis of such opinion is supported by proper facts, it is without probative value.

<bold>1. States.</bold> Because of state's sovereign status there is no inherent right to sue it. <bold>2. Highways.</bold> In absence of express statutory authorization otherwise, when state acquires private property for highway right of way it merely acquires easement and the title remains in abutting landowner.<page_number>Page 233</page_number> <bold>3. Highways.</bold> Ordinarily, proceedings for establishment of highway may be abandoned by public authorities any time prior to their consummation subject only to intervening or vested rights. SDC 1960 Supp. 28.13A01 — 28.13A03. <bold>4. Highways.</bold> Upon abandonment or vacation of established or proposed highway, land is relieved from servitude created by public way or proposed public way and possession reverts to abutting owner. SDC 1960 Supp. 28.13A01 — 28.13A03. <bold>5. Highways.</bold> Under option agreement specifically stating purpose of acquiring plaintiff's property was to secure necessary right of way for highway purposes only, easement was all that state could acquire regardless of form of instrument of conveyance. SDC 1960 Supp. 28.13A01 — 28.13A03. <bold>6. Constitutional Law — Highways.</bold> Although pursuant to option agreement with state highway commission for right of way for highway purposes owner delivered warranty deed conveying premises to state, where use of land by owner was never disturbed, any interest which state may have acquired reverted to owner, by operation of law, upon abandonment of project by highway commission and owner did not have vested right to payment for property. SDC 1960 Supp. 28.13A01-28.13A03, 33.0604. <bold>7. Highways.</bold> In contracting with highway commission, owner was charged with notice of its limited power and authority. <bold>8. Highways.</bold> Upon abandonment of highway project by state highway commission before it took possession of land conveyed to state pursuant to option agreement providing that land was to be acquired for highway purposes only, there were no appropriated highway funds available to pay for state's breach of contract to purchase land and grantor, to whom deed had been returned, was not entitled to recover from state amount which state had agreed to pay. SDC 1960 Supp. 28.13A01-28.13A03, 33.0604. <center> ORIGINAL PROCEEDING</center> Original proceeding against state to recover according to terms of option agreement with State Highway Commission for right of way on abandoned highway project.<page_number>Page 234</page_number> Judgment against state denied.

<bold>1. Guardian and Ward.</bold> In absence of statute regulating leases by guardian of infant wards the common law governs such matters, and under common<page_number>Page 255</page_number> law a guardian has authority to lease realty of his ward on fair and reasonable terms without prior approval or sanction of a court, but guardian cannot similarly grant a valid lease for a term extending beyond guardianship term. <bold>2. Guardian and Ward.</bold> A lease executed by guardian of minors for a term extending beyond guardianship term was voidable subject to ratification or avoidance by minors, which right to avoid was a privelege personal to the minors alone and could not be asserted by adult lessee. <bold>3. Guardian and Ward.</bold> A lease executed by guardian on behalf of minor wards for a term extending beyond guardianship term could not be avoided by adult lessee on ground of lack of mutuality since lack of mutuality was a personal privilege which only the minors themselves could assert, and by bringing action to recover rent, after minors reached majority, the lessors signified their ratification. <bold>4. Judgment.</bold> Ordinarily, a judgment in a prior action between other parties is not admissible in a subsequent action as proof of issuable facts. <bold>5. Judgment — Trial — Witnesses.</bold> In action to recover unpaid rent under lease, wherein lessee claimed that he quit the leased premises under circumstances amounting to constructive eviction because apartment was untenantable, a temporary restraining order in divorce action commenced by lessee's wife served on lessee on date when he left premises restraining him from molesting wife or occupying the apartment was not admissible as affirmative proof, but was admissible on cross-examination as contradictory impeaching evidence, and it was incumbent upon lessee to request court to restrict the evidentiary use of the order to its allowable purpose. <bold>6. Trial.</bold> When an evidentiary fact is offered for one purpose, and becomes admissible by satisfying all the rules applicable to it in that capacity, it is not inadmissible because it does not satisfy rules applicable to it in some other capacity and because the jury might improperly consider it in the latter capacity. <bold>7. Appeal and Error — Trial.</bold> Where according to trial court's memorandum opinion denying motion for new trial plaintiffs' counsel's argument to jury was "within the ambit of fair comment" and if a request was made to<page_number>Page 256</page_number> have reporter present to make a record of final argument such request was inaudible to the court, under circumstances Supreme Court could not find that such argument was improper or prejudicial.

<bold>1. Wills.</bold> A subscribing witness may impeach or deny proper execution of a will, but such testimony should be received with caution and considered with suspicion. <bold>2. Wills.</bold> A strong presumption arises that a will was duly and properly executed, and such presumption is not dependent upon affirmative memory of a subscribing witness to give it vitality but is actually an inference of fact having evidential weight, and as such, its force is not spent upon introduction of contradictory evidence but remains operative throughout the trial and may be weighed by trier of fact against opposing evidence.<page_number>Page 265</page_number> <bold>3. Wills.</bold> In order to defeat probate of a will, presumption that will was duly and properly executed must be overcome by clear and satisfactory evidence. <bold>4. Wills.</bold> Prima facie proof arising from attestation reciting facts indicating that will was duly executed in accordance with all formal essentials required by law was not overcome by testimony of subscribing witness that testator was not present at time that witnesses signed will. <bold>5. Wills.</bold> That a will was prepared by, and executed and published under the direction of, an attorney tends to support the attestation clause and due execution thereof.

<bold>1. Divorce.</bold> Trial court has broad discretion under custody statute in determining which parent in divorce action shall be given custody of children, and court's decision will be reversed only for clear abuse of discretion. SDC 14.0724. <bold>2. Divorce.</bold> Welfare of children of divorced parents is paramount consideration controlling their disposition. <bold>3. Divorce.</bold> Supreme Court should not interfere with trial court's determination of custody of children of divorced parents, in absence of clear conviction that broad discretion vested in trial has been abused. SDC 14.0724. <bold>4. Divorce.</bold> Preference under statute providing that if child is of tender years, custody should be given to mother, other things being equal, is subordinate to discretionary power of court to safeguard best interests of child. SDC 14.0505. <bold>5. Divorce.</bold> Where mother by irresponsible conduct indicates that her care and custody would be detrimental to welfare of child or she is unable adequately to care for child, custody may be awarded to father, or in extreme cases to someone else. <bold>6. Divorce.</bold> Denial of custody of parties' minor children to husband was not abuse of discretion in view of conflicting evidence. <bold>7. Divorce.</bold> Supreme Court and Circuit Court have concurrent jurisdiction to require husband in divorce action to pay allowance to enable wife to present her side of appeal. <bold>8. Divorce.</bold> Supreme Court would not require husband in divorce action to pay allowance for attorney's fees on appeal, in addition to that already made in trial court, in absence of evidence of husband's resources and earning ability.<page_number>Page 300</page_number>

<bold>1. Judgment.</bold> Where an appearance has been entered, the failure to give the six days' notice required by statute is an irregularity and a default judgment entered without such notice is voidable. SDC 1960 Supp. 33.1707.<page_number>Page 548</page_number> <bold>2. Pleading.</bold> One amendment to a pleading is permitted as a matter of course before a responsive pleading is served. SDC 1960 Supp. 33.0914. <bold>3. Divorce.</bold> A resumption of marital relations in itself does not operate as an abandonment of the cause of action for divorce in the absence of an express agreement to condone, and the cause of action may be revived. SDC 14.0716, 14.0717. <bold>4. Divorce.</bold> Husband who had contracted a second marriage and could only have done so under authority of divorce granted to wife was precluded by laches and estoppel from challenging default divorce decree. <bold>5. Estoppel.</bold> A litigant cannot accept the benefit of a judgment and then be heard to assert its nullity and invalidity.

<bold>1. Schools and School Districts.</bold> The statutory requirement that all proposed school districts shall consist of one adjoining territory applies only to proposed new<page_number>Page 560</page_number> school districts; it has no application to excluded territory in a reorganization. SDC 1960 Supp. 15.2005(4). <bold>2. Schools and School Districts.</bold> The stautory limitations imposed on procedure for making minor school district boundary changes, such as restriction against reducing assessed valuation of existing district below $200,000, had no application to organization proceeding resulting in creation of new district created out of territory formerly comprising the whole or parts of several existing school districts. SDC 1960 Supp. 15.2005; Laws 1955 c. 41, subc. 8, § 1, subd. 1; § 20; Laws 1961, cc. 69, 73. <bold>3. Schools and School Districts.</bold> The object of school reorganization is to provide greater equalization of educational opportunities, more efficient and economical administration of public schools, and a more equitable distribution of public school revenues. SDC 1960 Supp. 15.2014. <bold>4. Schools and School Districts.</bold> The process of reorganization inherently involves creation of larger school units at expense of smaller units; conversely, survival of existing school districts involved in other types of school reorganization proceedings is not contemplated. <bold>5. Constitutional Law — Schools and School Districts.</bold> School districts do not have a vested right to retain their existing status or territory; as creatures of the Legislature they are subject to periodic change, alteration, or abolishment. <bold>6. Schools and School Districts.</bold> The reorganization of the Grant-Deuel Independent School District No. 63 was not invalid for failure to reorganize fragmented areas remaining in the old districts. SDC 1960 Supp. 15.2018, 15.2021 and (2); Laws 1963, c. 104. <bold>7. Schools and School Districts.</bold> On appeal from school board decision to create a reorganized school district, trial court was not required to make findings of fact, where no factual issues were involved and the matter was heard on a stipulated record. SDC 1960 Supp. 15.2344. <bold>8. Schools and School Districts.</bold> Trial court's order of dismissal entered in appeal from school board decision to create reorganized school district was treated by Supreme Court as a judgment affirming decision, where implicit in the trial court's order was a conclusion affirming the decision, and great public interest and urgency were involved. SDC 1960 Supp. 15.2344.<page_number>Page 561</page_number>

<bold>1. Automobiles.</bold> Statutory presumption that person is under influence of intoxicating liquor if he has certain blood alcohol level was not applicable in prosecution for second degree manslaughter arising out of a motor vehicle homicide. SDC 1960 Supp. 13.2025, 44.0302-1. <bold>2. Automobiles.</bold> Weight of evidence of intoxication, including opinion of chemist and doctor as to condition of one with level of blood alcohol as that of defendant was for jury in motor vehicle homicide prosecution. SDC 1960 Supp. 13.2025, 44.0302-1. <bold>3. Criminal Law.</bold> Giving of instruction which erroneously applied in motor vehicle homicide prosecution presumption that one having certain blood alcohol level is under influence of intoxicating liquor constituted reversible error, even though other evidence would, if accepted by jury, have justified finding that defendant was under influence of intoxicating liquor. SDC 1960 Supp. 13.2025, 44.0302-1. <bold>4. Criminal Law.</bold> Diagram of automobile accident scene, even though not accurate in every detail or drawn to scale, can be helpful to jury in visualizing testimony, and admission of diagram is addressed to trial court's discretion. <bold>5. Criminal Law.</bold> Admission in evidence of accident scene diagram prepared by patrolman was not an abuse of court's discretion in motor vehicle homicide prosecution, where patrolman arrived shortly after accident and before automobiles involved had been moved, observed location and condition of automobiles, skid marks, and debris, measured distances involved, and took pictures of the automobiles, and resulting diagram was fairly accurate and was offered to illustrate his testimony. <bold>6. Criminal Law.</bold> Partly consumed bottle of whiskey taken from automobile occupant's pocket by patrolman and identified as same brand and size as defendant's companion had purchased earlier was properly received in evidence, over defendant's objection, in motor vehicle homicide prosecution based on charge of operating a motor vehicle<page_number>Page 570</page_number> while under influence of intoxicating liquor, despite lack of testimony that defendant had drunk any of the whiskey, in view of other evidence that defendant was under influence of intoxicating liquor.