# Fussner v. Andert

> Supreme Court of Minnesota · December 15, 1961 · 261 Minn. 347

URL: https://www.frixlaw.com/law-library/cases/9720833

## Case

- **Full name:** Walter Fussner, Trustee for Next of Kin of Sandra Joan Fussner, v. Albert R. Andert
- **Court:** Supreme Court of Minnesota
- **Decided:** December 15, 1961
- **Citations:** 261 Minn. 347; 113 N.W.2d 355; 1961 Minn. LEXIS 651
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Murphy, Dell, Otis, Rogosheske
- **Cited by:** 74 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9720833

## Opinion text

On Petition For Rehearing.
On February 2, 1962, the following opinion was filed:
Per Curiam.
The defendant asks that the foregoing decision be modified so as to apply prospectively only. He argues that the trial court correctly relied on prior authorities and that he has been subjected to undue hardship by the change established by this decision. While there would be merit to this argument if it were applied to the subject of contract or property law where the parties planned their conduct in advance in accordance with existing law, we are of the view that the same considerations do not exist with reference to negligence actions, particularly in this case where the conduct of the defendant was in nowise controlled by the existing law of the state at the time the accident happened.
It is next argued that a new trial should not be limited to the issue of damages but should include the issue of liability as well. This contention may be disposed of by pointing out that where the issue of liability has been fairly and fully tried in the lower court the practice of the supreme court has been to order a new trial upon the question of damages only. Propper v. Chicago, R. I. & P. Ry. Co. 237 Minn. 386 , 54 N. W. (2d) 840 , 35 A. L. R. (2d) 459.
The defendant further argues that the case was tried and determined under the law as it existed prior to our decision and that he should not *362 be burdened with the costs and disbursements of this appeal. We think there is merit to this claim. Because the rule established by the foregoing opinion was not in effect at the time of the trial, it would not be fair under the circumstances to require the defendant to pay the full costs of the appeal. In H. P. Droher & Sons v. Toushin, 250 Minn. 490, 503 , 85 N. W. (2d) 273, 282 , we pointed out that under our statutes and the case law we have no authority to deny the plaintiff his disbursements if we grant a new trial on any issue. Under the circumstances in that case, where we thought it would be unconscionable to burden the defendants with the costs and disbursements of the appeal, we reached what we felt was a fair and just disposition of the issue by granting the new trial on the condition that the prevailing party waive taxation of costs and disbursements. We feel the circumstances here justify the same action. Accordingly, the opinion in this case is amended to provide that a new trial will be granted on the issue of damages only if the plaintiff will file with the clerk of this court within 10 days from the issuance of this opinion his consent in writing to waive taxation of all costs and disbursements in this case. The remittitur in this case, having issued prematurely because of clerical mistake, is hereby recalled, and the cost judgment heretofore entered is vacated.
Mr. Justice Otis took no part in the consideration or decision of this case.
Mr. Justice Rogosheske, not having been a member of the court at the time of the argument and submission, took no part in the consideration or decision of this case.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9720833. Public record. Not legal advice.