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73 Nev.

1, 1 (1957)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
VOLUME 73
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73 Nev. 1, 1 (1957) Close v. Flanary
In the Matter of the Estate of S. PETERSON, Also Known as
SVANTE PETERSON, Deceased.
MILDRED JANE CLOSE, Appellant, v. R. S. FLANARY, Executor, R. S. FLANARY,
JUANITA D. FLANARY, FRANCES ATKINSON, VERN HURSH and
NEVADA CHAPTER of the NATIONAL FOUNDATION for
INFANTILE PARALYSIS, Respondents.
No. 3961
January 31, 1957. 366 P.2d 121.
Appeal from order rendered by the Second Judicial District Court, Washoe County, A. J.
Maestretti, Judge, Department No. 2, striking substantial matter from complaint. On motion
to dismiss, the Supreme Court held that the order was not appealable.
Appeal dismissed.
Nada Novakovich, of Reno, for Appellant.
Lohse & Fry, of Reno, for Respondents Flanary, Atkinson and Hursh.
73 Nev. 1, 2 (1957) Close v. Flanary
Robert L. McDonald, of Reno, for Respondent Nevada Chapter of the National Foundation
for Infantile Paralysis.
Appeal and Error.
An order striking substantial matter from complaint was not appealable. Rules of Civil Procedure. Rule
72(b).
OPINION
On Motion to Dismiss
Per Curiam:
This is an appeal by the plaintiff below from an order striking substantial matter from her
complaint. Respondents have moved for dismissal of the appeal upon the ground that such an
order is not an appealable order under Rule 72(b) N.R.C.P.
The order does not have the finality which might constitute it a final judgment nor is it among
the orders before judgment specified as appealable. Accordingly, the motion must be granted.
Appeal dismissed.
____________
73 Nev. 2, 2 (1957) Ex Parte Sefton
In the Matter of the Application of WALTER
HORACE SEFTON for a Writ of Habeas Corpus
No. 4005
February 6, 1957. 306 P.2d 771.
Original proceedings in habeas corpus by person convicted of murder in first degree.
The Supreme Court held that fact that during period of 13 days during which defendant
was held incommunicado he was, on four or five occasions, questioned for periods of one to
two hours at a time, and that confession itself was secured during automobile trip on
which occasion he was for about four hours in presence of officers and subject to their
questioning, did not establish that use of confession was denial of due process.
73 Nev. 2, 3 (1957) Ex Parte Sefton
periods of one to two hours at a time, and that confession itself was secured during
automobile trip on which occasion he was for about four hours in presence of officers and
subject to their questioning, did not establish that use of confession was denial of due
process.
Discharge denied and proceedings dismissed.
(Petition for a writ of certiorari was denied by the Supreme Court of the United States June
10, 1957, 354 U.S. 914, No. 728 Misc.)
See also 72 Nev. 106, 295 P.2d 385.
John W. Bonner, of Las Vegas, for Petitioner.
Harvey Dickerson, Attorney General, of Carson City, and George M. Dickerson, District
Attorney, of Las Vegas, for Respondent.
1. Criminal Law.
In order to render confession inadmissible, it must appear that it was not voluntarily given.
2. Criminal Law.
That confession was secured prior to arraignment or to securing of counsel and while prisoner was being
held incommunicado did not in and of itself constitute psychological duress matter of law.
3. Constitutional Law.
That during period of 13 days during which defendant was held incommunicado defendant was, on four
or five occasions, questioned for periods of one to two hours at a time, and that confession itself was
secured during automobile trip on which occasion he was for about four hours in presence of officers and
subject to their questioning, did not establish that use of confession was denial of due process.
4. Habeas Corpus.
In habeas corpus proceeding by person convicted of murder in first degree, facts stated in application for
discharge, supplemented by proof offered on hearing, wholly failed to establish duress or facts otherwise
constituting use of confession a deprivation of due process.
5. Habeas Corpus.
That jailer was permitted to appear before members of jury with his head in bandages, he having suffered
injury during jail break in which defendant accused of murder had participated, was not calculated to
arouse prejudicial passion or animosity, and would not be grounds for relief on habeas corpus after
conviction.
73 Nev. 2, 4 (1957) Ex Parte Sefton
OPINION
Per Curiam:
By these proceedings Walter Horace Sefton, under sentence of death following conviction
of the crime of murder in the first degree, seeks discharge from the state prison through
habeas corpus. Upon application to this court the writ was issued. On February 1, 1957
hearing upon the writ was had. On February 5, 1957 this court rendered its decision by which
discharge under the writ was denied and these proceedings dismissed. This opinion is filed in
support of that action.
The basis for the application is a contention of lack of due process in the trial which
resulted in conviction. Upon appeal from that judgment this court has already scrutinized the
proceedings had below. There it was also contended that applicant had been deprived of a fair
trial through lack of due process. Finding no merit in the contention as there presented we
affirmed judgment. Sefton v. State, 72 Nev. 106, 295 P.2d 385. The renewal of that
contention in these proceedings is based in part upon certain facts and points of law not
presented upon appeal.
The pertinent facts as alleged in the application for discharge are to a substantial degree
denied by the state. Upon the factual issues thus presented applicant asks for a reference in
order that proof may be presented. In our view even accepting the truth of applicant's factual
contentions grounds for discharge have not been stated. For this reason applicant's motion for
a reference is denied.
[Headnotes 1, 2]
It is contended that a confession received in evidence by the trial court was secured from
applicant while he was being held incommunicado by the Clark County sheriff's office and
before arraignment or employment of counsel. In order to render the confession inadmissible
it must appear that it was not voluntarily given. State v. Boudreau, 67 Nev. 36, 214 P.2d 135.
There is no claim of physical duress. That confession was secured prior to arraignment or to
the securing of counsel and while the prisoner was being held incommunicado does not in
and of itself constitute psychological duress as a matter of law.
73 Nev. 2, 5 (1957) Ex Parte Sefton
to arraignment or to the securing of counsel and while the prisoner was being held
incommunicado does not in and of itself constitute psychological duress as a matter of law.
Something more is necessary to persuade even the most sympathetic and conscientious
observer that the volition of the prisoner has been overpowered.
[Headnote 3]
Upon hearing applicant stated that if reference should be granted he would prove that the
confession was given following extensive questioning by the officers. His offer of proof was
in substance that during a period of 13 days during which he was held incommunicado he
was, on four or five occasions, questioned for periods of one to two hours at a time; that the
confession itself was secured during an automobile trip on which occasion he was for about
four hours in the presence of officers and subject to their questioning. In our opinion these
facts are far from sufficient to establish that use of the confession was a denial of due process.
It may be noted that the confession with which we are concerned was not the only
confession received in evidence by the trial court. A full confession, concededly voluntary,
was given to Michigan authorities, upon the basis of which applicant was returned to this
state to stand trial. The confession now under attack consisted in applicant's taking the Clark
County officers to the scene of the crime, pointing out the place where it had occurred and
stating, This is where I did it.
[Headnote 4]
We conclude that the facts stated in the application for discharge, supplemented by the
proof offered on hearing, wholly fails to establish duress or facts otherwise constituting use of
the confession a deprivation of due process.
[Headnote 5]
It is next contended that prejudice to applicant resulted from the fact that a jailer was
permitted to appear before members of the jury with his head in bandages, he having suffered
injury during a jail break in which applicant had participated.
73 Nev. 2, 6 (1957) Ex Parte Sefton
in which applicant had participated. Two members of the jury admitted on voir dire
examination that they had read newspaper accounts of the jail break. (They were not,
however, challenged either for cause or peremptorily.) It does not appear that other members
of the jury would place any significance upon the jailer's bandaged head. Even if they had, we
remain wholly unconvinced that the sight of the bandaged head (which it does not appear was
more shocking or horrible than a bandaged head ordinarily is) would be calculated to arouse
prejudicial passion or animosity.
The application sets forth other grounds for discharge which we feel it unnecessary to
discuss. They have already been considered by this court on appeal from judgment.
For these reasons discharge was denied and the proceedings dismissed.
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73 Nev. 6, 6 (1957) Heric v. Christensen
JACK C. HERIC, aka J. C. HERIC, Appellant, v. ROY J. CHRISTENSEN, dba PEAVINE
TRANSFER & WHOLESALE CO., Respondent.
No. 3900
February 7, 1957. 306 P.2d 769.
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge, Department No. 3.
Action by overtaken motorist against overtaking motorist for damages sustained in
collision between the two automobiles when overtaken motorist allegedly stopped his
automobile in compliance with traffic signal lights. The lower court entered judgment on
verdict for overtaking motorist, and overtaken motorist appealed. The Supreme Court held
that evidence was sufficient to sustain verdict for overtaking motorist.
Affirmed.
73 Nev. 6, 7 (1957) Heric v. Christensen
Oliver C. Custer and John E. Gabrielli, of Reno, for Appellant.
Goldwater, Taber and Hill, for Respondent.
1. Automobiles.
In action by overtaken motorist against overtaking motorist for damages sustained in collision which
occurred when, according to overtaken motorist, overtaking motorist's automobile struck the overtaken
automobile after it had been stopped for a traffic signal but, according to overtaking motorist, when
overtaken automobile was stopped suddenly without any warning signal, evidence was sufficient to sustain
verdict for overtaking motorist.
2. Trial.
Where, in action arising from automobile accident, defendant had pleaded contributory negligence as a
defense, plaintiff's requested instruction that, if defendant was not operating his vehicle in such manner that
it could be stopped within a reasonable distance or if it was not equipped with proper brakes and if such
failure was approximately the cause of the accident, jury should find for plaintiff would, if given, have
denied such defense out of hand, and, therefore, refusal to give such instruction was not error.
OPINION
Per Curiam:
[Headnote 1]
This is an appeal from a judgment based upon a verdict for defendant in a rear-end
collision case. Appellant contends that there was no evidence to support the verdict.
Defendant testified that plaintiff was driving south on South Virginia Street in Reno and that
defendant was following in a pickup truck; that he had been following behind plaintiff for
several blocks, maintaining a distance of some 15 to 20 feet from plaintiff, both cars traveling
at a speed of about 20 miles per hour; that suddenly and without hand signal or other warning
plaintiff came to an abrupt stop and defendant's pickup struck his car, with very little force, as
defendant applied his brakes, which were in very good condition. Plaintiff's version is that he
had stopped behind a line of cars waiting for a mechanical stop light to change, had sat there
and relaxed from 10 to 15 seconds and was then struck in the rear.
73 Nev. 6, 8 (1957) Heric v. Christensen
and relaxed from 10 to 15 seconds and was then struck in the rear. We thus have a direct
conflict in the testimony as to the manner in which the accident occurred. The jury apparently
rejected plaintiff's version of what caused the accident and rejected the facts testified to by
plaintiff in support of that version. It apparently found either that plaintiff's unindicated
sudden and abrupt stop was the proximate cause of the collision or that it was negligence on
the part of plaintiff contributing thereto. It is also conceivable that it found that the accident
was unavoidable. In any of such events its conclusion was a factual one, with substantial
support in the evidence, much of which we have not found it necessary to recite. See
extended Annotation 29 A.L.R.2d 5 under title Sudden or unsignaled stop or slowing of
motor vehicle as negligence.
[Headnote 2]
Appellant also assigns as error the court's refusal to instruct the jury that if the defendant
was not operating his vehicle in such manner that it could be stopped within a reasonable
distance before striking objects in front, or that if defendant's vehicle was not equipped with
proper brakes in compliance with statute and that such failure was approximately the cause of
the accident, it should find for plaintiff. Defendant had pleaded contributory negligence as a
defense, and the requested instruction would have denied such defense out of hand. It was
properly refused.
Affirmed with costs.
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73 Nev. 9, 9 (1957) Simon Service v. Mitchell
SIMON SERVICE INCORPORATED, a Nevada Corporation, Appellant,
v. ALLEN E. MITCHELL, Respondent.
NEVADA INDUSTRIAL COMMISSION,
Intervenor Respondent.
No. 3942
February 7, 1957. 307 P.2d 110.
Appeal from Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
Department No. 1.
Action by employee of one separate contractor, against corporation which, without
employment of a principal contractor, undertook to erect building and parceled fractions of
the work among separate contractors, for injuries received by employee in course of his
employment. Industrial Commission intervened for purpose of subrogating to employee's
rights to extent of compensation awarded employee. The lower court, in trial without jury,
entered judgment for employee and intervenor, and corporation appealed. The Supreme
Court, Badt, C. J., held that fact that defendant was the general contractor or principal
employer would preclude employee from recovering at common law.
Reversed.
Morse, Graves & Compton and C. Norman Cornwall, of Las Vegas, for Appellant.
Hawkins & Cannon, of Las Vegas, for Respondent Mitchell.
Richard R. Hanna, of Carson City, for Intervenor Respondent.
1. Workmen's Compensation.
Where defendant, in constructing building, entered into various separate contracts, fact that defendant
was the general contractor or principal employer would preclude one contractor's employee, who
suffered injuries in course of his employment and accepted benefits of Industrial Insurance Act, from
recovering at common law from defendant for the injuries sustained. NRS 616.01 et
seq., 616.105, 616.0S5, 616.115, 624.260, 616.270, 616.370 et seq.
73 Nev. 9, 10 (1957) Simon Service v. Mitchell
Act, from recovering at common law from defendant for the injuries sustained. NRS 616.01 et seq.,
616.105, 616.085, 616.115, 624.260, 616.270, 616.370 et seq.
2. Workmen's Compensation.
Amendment, by which quoted phrase was deleted from Nevada Industrial Insurance Act provision that
subcontractors and their employees shall be deemed employees of principal contractor or other person
having the work done, eliminated owner whose only status was as owner, but who might be said, as such
owner, to be person having the work done, but, when owner assumes additional status of being principal
employer or contractor, he is not eliminated just because he is also the owner. NRS 616.085.
3. Workmen's Compensation.
Purpose of Nevada Industrial Insurance Act provisions that subcontractors and their employees shall be
deemed employees of principal contractor is, in part, to protect subcontractors' employees against possible
irresponsibility of their immediate employers by making principal contractor or employer, having general
control, liable as if he directly employed every workman. NRS 616.085.
OPINION
By the Court, Badt, C. J.:
The question presented by this appeal is whether the 1951 amendment to the Nevada
Industrial Insurance Act (NRS 616.01 et seq.) removes from eligibility for coverage, under
the act, a person who undertakes, without the employment of a principal contractor, to
retain in his own hands the business of erecting a building, parceling out fractions of the work
of construction among separate contractors.
Prior to 1951, NRS 616.085 read as follows: Subcontractors and their employees shall,
for the purpose of this act, be deemed to be employees of the principal contractor or other
person having the work done. The emphasis has been supplied. The legislature in 1951
(Stats. 1951, 486) deleted the italicized words.
[Headnote 1]
Appellant herein, Simon Service Incorporated, defendant below, under a local building
permit, undertook the construction of a building in Las Vegas. It employed two carpenters
and a construction engineer. It entered into separate contracts for performance,
respectively, of the plumbing work, the wiring, the painting, plastering, etc.
73 Nev. 9, 11 (1957) Simon Service v. Mitchell
separate contracts for performance, respectively, of the plumbing work, the wiring, the
painting, plastering, etc. The A. R. Ruppert Plumbing & Heating Company entered into a
contract with defendant to do the sheet metal work. The carpenters employed directly by
defendant erected a platform for the purpose of permitting installation of such sheet metal
work. While an employee of the plumbing company, namely, Allen E. Mitchell, plaintiff and
respondent herein, was on such platform, engaged in installing sheet metal, one of the cross
braces supporting the platform floor broke, Mitchell was precipitated to the ground some
eight feet below and suffered severe injuries. He was awarded compensation by the Nevada
Industrial Commission in the lump sum of $6,220.15, but thereafter commenced the present
action for recovery of damages from defendant. The Industrial Commission intervened to
enforce subrogation to it of sums, if any, recovered from defendant. The case was tried to the
court without a jury and judgment was entered for plaintiff in the sum of $13,500, intervenor
being subrogated to the rights of plaintiff to the extent of $6,220.15. The trial court thus
rejected defendant's affirmative defense that it was the general contractor; that it entered into
various subcontracts for construction of certain parts of the building, including a contract
with Ruppert; and that Mitchell, an employee of Ruppert, having suffered injuries in the
course of his employment, accepted the benefits of the Industrial Insurance Act and had no
common law right of recovery as against Simon Service.
1
It is our conclusion that under the
circumstances the defense was good and that its rejection was error.
It appears that defendant took out industrial insurance for the persons directly employed by
it and the plumbing company took out industrial insurance for its own employees.
____________________

1
Both Simon Service and Ruppert had given notice of election to accept the terms of the act, and Mitchell
had given no notice of an election to reject the same. Under NRS 616.270, 616.370 et seq., the employer is
relieved from liability for recovery of damages and the employee is limited to compensation under the act.
73 Nev. 9, 12 (1957) Simon Service v. Mitchell
An independent contractor is defined by NRS 616.105
2
and it is provided by NRS
616.115 that the term subcontractors shall include independent contractors. In view of such
provision, when taken in connection with NRS 616.085 first above quoted, it makes no
difference whether we consider the plumbing company to have been a subcontractor or an
independent contractor. It did in any event enter into a contract for installing the sheet metal
workand it entered into such contract with the defendant.
The respondent concedes that, if the legislature had not deleted from NRS 616.085 the
words or other person having the work done, respondent Mitchell, as the employee of
subcontractor or independent contractor Ruppert, would, for the purposes of the act, be
deemed to be an employee of appellant. It contends, however, that the 1951 legislative
deletion of the phrase or other person having the work done, withdrew from the protection
of the statute anyone not a principal contractor. The learned trial judge, in his written
opinion, apparently agreed with this contention and held: Defendant corporation, as the
owner of the premises upon which this scaffolding was constructed by its employees, is not a
principal contractor within the meaning of * * * the act * * * and is as liable for its negligence
to this plaintiff as it would have been for its negligence to one of the general public.
The Supreme Court of Errors of Connecticut, in construing its own industrial insurance
act, but under a section which concededly defines principal employer rather than principal
contractor and more definitely spells out the position of such principal employer who has
the work done without the intervention of a contractor or subcontractor
3
presents
convincingly the view that the owner, undertaking the work of construction without
intervention of a principal contractor, places himself, for the purposes of the act precisely
in the same position as a principal contractor.
____________________

2
NRS 616.105: Independent contractor' means any person who renders service for a specified recompense
for a specified result, under the control of his principal as to the result of his work only and not as to the means
by which such result is accomplished.

3
Principal Employer, Contractor and Subcontractor.When any principal employer procures any work to
be done, wholly or in part
73 Nev. 9, 13 (1957) Simon Service v. Mitchell
that the owner, undertaking the work of construction without intervention of a principal
contractor, places himself, for the purposes of the act precisely in the same position as a
principal contractor. The court said: On principle it is clear that an owner who sets in motion
the business of erecting a building may either carry on the business himself, or employ a
general contractor to carry it on for him. If the owner chooses to retain in his own hands the
business of erecting the building, and to parcel out fractions of the work of construction
among separate contractors each responsible solely to the owner for a fraction only of the
entire work, the owner must be held to be the principal employer within the meaning of
section 5345, and also to be engaged for the time being in the business of constructing the
building. Otherwise, section 5345, and, indeed, the whole policy of the Workmen's
Compensation Act, might be evaded by the device of the owner parceling out the work of
construction among a number of separate contractors no one of whom employed five or more
workmen.
4

On the other hand, if the owner declines to take upon himself the business of erecting the
building, and in good faith employs for that purpose a general contractor engaged in that
business, the policy of the act is satisfied by that substitution of another responsible employer
in the place of the owner, and the owner does not merely by making such a contract
5
become
an employer under the Workmen's Compensation Act or a principal employer under section
5345. Bello v. Notkins, 101 Conn. 34, 124 A. 831, 832.
The complete answer to this is not found in the assertion that the reasoning of the
Connecticut court is based upon the wording of its own statute or that it would have been
in point here prior to the 1951 amendment to the Nevada statute.
____________________
for him, by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or
process in the trade or business of such principal employer, and is performed in, on or about premises under his
control, then such principal employer shall be liable to pay all compensation under this chapter to the same
extent as if the work were done without the intervention of such contractor or subcontractor. Gen. Stat. 1918,
sec. 5345.

4
Under the Nevada act, two or more.

5
Under the Nevada act, by merely having the work done.
73 Nev. 9, 14 (1957) Simon Service v. Mitchell
upon the wording of its own statute or that it would have been in point here prior to the 1951
amendment to the Nevada statute. The question intrudes itself more deeply into the salutary
and humanitarian purposes of the entire industrial act. It is not enough to say that the
amendment withdrew from the protection of the statute anyone not a principal contractor. If it
did this, then by the same stroke it withdrew from the protection of the statute an employee
(except under other conditions which might not exist) of anyone not a principal contractor. In
view of our repeated assertions of the humanitarian purposes of the act, Industrial
Commission v. Peck, 69 Nev. 1, 239 P.2d 244, we find it difficult to draw such intent from
the 1951 amendment. To find such purpose in the mere use of such term as principal
contractor is, to say the least, unrealistic and unconvincing. It would compel an owner, who
is himself an experienced construction man, to employ a principal contractor who would,
perchance, let out every phase of the work in subcontracts precisely as the owner would do
without the intervention of a principal contractor. If it would seem an anomaly to call such
owner the principal contractor because, forsooth, he cannot contract with himself, he could as
well be called principal employer, governor, president or any other term.
[Headnote 2]
The more reasonable explanation of the 1951 amendment may be found in California's
experience under a section of its Industrial Insurance Act analogous to NRS 616.085 as
originally enacted. In Carstens v. Pillsbury, 172 Cal. 572, 158 P. 218, a construction of the
California act, St. 1913, p. 279, was undertaken in view of a provision of the California
constitution authorizing the legislature to create and enforce a liability on the part of all
employers. The act as passed by the California legislature fixed a liability upon the owner of
a lot who had let a contract for the erection of a building thereon, although such owner in no
way sustained the relation of an employer to the employees of the contractor or of the
subcontractors.
73 Nev. 9, 15 (1957) Simon Service v. Mitchell
employer to the employees of the contractor or of the subcontractors. The court held this to be
beyond the constitutional authority to the legislature to create a liability on the part of
employers. The owner may indeed be said to be the person who has the work done but,
under the Nevada act, as under the California constitution, the liabilities and exemptions were
intended to attach to employers of labor and not simply to owners of property as such.
Accordingly, as we interpret the intention of the 1951 amendment, it did eliminate an owner
whose only status was as owner, but who might be said, as such owner, to be the person
having the work done. When that owner assumed an additional status, as appellant did in this
case, of being principal employer or principal contractor, he was not eliminated just because
he was also the owner. This interpretation is supported by many clauses of the act itself: the
definition of the act as one defining and regulating the liability of employers to their
employees; the definition of employer as every person having any natural person in service;
the use of the word employer in section after section of the act. A person having the work
donean owner, lessee, licenseenot occupying the status of an employer, or, as a
contractor, of one who reasonably could be classed as an employer, was apparently not within
the original contemplation of the act and was eliminated by the 1951 legislature. The
emphasis upon the relationship of employer and employee (even under the terms of a contract
which attempted to limit the status of the principal employer by defining him to be only the
owner), under a workmen's compensation law, finds logical exposition in Phoenix Indemnity
Co. v. Barton Torpedo Co., 137 Kan. 92, 19 P.2d 739, and the cases therein cited, q.v.
[Headnote 3]
The very purpose of NRS 616.085 is, at least in part, to protect the employees of
subcontractors against the possible irresponsibility of their immediate employers by making
the principal contractor or principal employer having general control of the construction
liable as if he had directly employed every workman on the job.
73 Nev. 9, 16 (1957) Simon Service v. Mitchell
having general control of the construction liable as if he had directly employed every
workman on the job. Bello v. Notkins, 104 Conn. 34, 124 A. 831.
Bearing in mind that the term principal contractor is not defined in the act, let us put into
the actual juxtaposition in which they occur, in the original act (Stats. 1947, 569) sections 21
and 22.
Sec. 21. The term subcontractors' shall include independent contractors.
Sec. 22. Subcontractors and their employees shall, for the purpose of this act, be
deemed to be employees of the principal contractor.
Appellant, although it employed no general contractor for the entire construction, did
employ, as a separate contractor, the plumbing company to install the sheet metal work, as
well as employing other separate contractors for other phases of the work. Whether these
separate and individual contractors are denominated subcontractors or independent
contractors would not affect their direct relationships with appellant. In turn the fact that
appellant itself undertook construction of the building and entered into separate contracts for
installation of the plumbing, sheet metal, electrical wiring, painting, etc., would seem to
indicate that it could quite reasonably be designated the principal contractor. Each of the
individual contractors entered into one contract. Appellant entered into a number of
contractsone with each of the separate contractors. No definition contained in the act and
none of the provisions therein contained compel the conclusion that the principal contractor
must be a general contractorone who enters into a general contract with the owner for the
entire construction. In other words, he would become the principal employer as such term
is defined in the Connecticut statute construed in Bello v. Notkins, supra. It cannot be said
that general and popular acceptance of the meaning of the word principal would in any way
be violated by the conclusion that appellant was the principal contractor in this case as
distinguished from the other contractors involved who were indeed special contractors for
the performance of special phases of the work, and each of whom entered into a contract
with appellant.
73 Nev. 9, 17 (1957) Simon Service v. Mitchell
other contractors involved who were indeed special contractors for the performance of special
phases of the work, and each of whom entered into a contract with appellant. This is fortified
by NRS 616.105 defining independent contractor as meaning any person who renders
service for a specified recompense for a specified result, under the control of his principal as
to the result of his work. If appellant was the plumbing contractor's principal under this
section, he still remained his principal under NRS 616.085.
If then we are correct in concluding that appellant was the principal contractor as
contemplated by NRS 616.085, plaintiff, by the definition contained in such section, was, for
the purpose of the act, an employee of appellant. He was therefore relegated to the
compensations provided for in the act to the exclusion of his common law remedies against
appellant.
We have thus far considered the issue as defined and argued in the opening, answering and
reply briefs. The issue involved there appeared to be entirely one of statutory construction.
Upon the oral argument, however, an entirely different issue developed. Respondent
supported the trial court's decision upon the ground that defendant was not a contractor
authorized and licensed as required by law, and that if he had been such, the statutory
provisions would apply; that if someone who is a qualified general contractor, engaged in
that business, wished to construct a building for his own use, he could gain industrial
insurance protection under the act, although he himself acted as the general contractor. As
this appeared to us to be an abandonment of the trial court's reason for rejecting defendant's
affirmative defense, and as the statutes of this state requiring general contractors to be
licensed had not been argued, referred to, quoted or even cited in the briefs, we ordered
further briefs submitted upon this point. In response appellant submitted a rather full analysis
of the contractors' licensing act. It is entitled, An Act to create a state contractors' board;
defining the powers and duties of said board; defining contractors and providing for the
licensing of contractors; fixing the fees for such licenses; prescribing a penalty for the
violation of this act and other matters properly relating thereto.",
73 Nev. 9, 18 (1957) Simon Service v. Mitchell
of said board; defining contractors and providing for the licensing of contractors; fixing the
fees for such licenses; prescribing a penalty for the violation of this act and other matters
properly relating thereto., St. 1941 p. 442, and comprises 35 sections. A full discussion of
the act in this opinion does not appear to be justified, but we are satisfied that it bears no
direct relation to the Industrial Insurance Act. It serves an entirely different purpose. The
purpose of the contractors' licensing act is evident from NRS 624.260, whereunder the
contractors' board, created by the act, must require an applicant for a contractor's license to
show such a degree of experience and such general knowledge of the building safety and
health laws of the state and of the rudimentary principles of the contracting business as the
board shall deem necessary for the safety and protection of the public. It is indeed
questionable whether the defendant in this case might not in any event be exempt under the
provisions of NRS 624.330, which provides: This act does not apply to owners of property,
building or improving structures thereon for the occupancy of such owner and not intended
for sale. Be this as it may, no provision, section, sentence or clause in the Industrial
Insurance Act suggests the necessity that contractors be licensed under the statute relied on by
respondent. It is not concerned with the question of the criminal liability of a contractor or
subcontractor who enters upon or bids for a contract without a license.
In response to our order for supplemental briefs on the applicability of the contractors'
licensing act, respondent filed a supplemental brief of 14 pages rearguing his original
contentions but without mention of the licensing act upon which we asked to be enlightened
and upon which respondent relied in his oral argument as depriving appellant of the
protection of the Industrial Insurance Act.
We are satisfied in any event that neither the contractors' licensing act nor the possibility
of the violation of any of its provisions by respondent can serve to affect the status or
relationship of the parties under the Industrial Insurance Act under the circumstances of
this case.
73 Nev. 9, 19 (1957) Simon Service v. Mitchell
the status or relationship of the parties under the Industrial Insurance Act under the
circumstances of this case.
Reversed and remanded with directions to enter judgment in favor of appellant.
Eather and Merrill, JJ., concur.
____________
73 Nev. 19, 19 (1957) Engebretson v. Engebretson
OSCAR C. ENGEBRETSON, Appellant, v.
ETHELYN E. ENGEBRETSON, Respondent.
No. 4001
February 11, 1957. 307 P.2d 115.
Appeal from First Judicial District Court, Churchill County; Frank B. Gregory, Judge.
Divorce suit. The trial court entered an order for preliminary allowances to wife for
counsel fees and support pending litigation, the husband appealed, and the wife moved to
dismiss the appeal. The Supreme Court held that the order was interlocutory and not
appealable.
Appeal dismissed.
Stewart & Horton, of Reno, for Appellant.
Diehl & Recanzone, of Fallon, for Respondent.
Appeal and Error.
An order for preliminary allowances to wife in divorce suit, for counsel fees and support pending
litigation, was interlocutory and not appealable, notwithstanding statute prohibiting modification of
installment judgments for alimony and support as to accrued installments. NRS 125.170, 125.270.
OPINION
Motion to Dismiss Appeal
Per Curiam:
On January 24, 1956, on motion of plaintiff wife and after the taking of testimony and
argument of counsel for both parties, the court below entered an "Order for Preliminary
Allowances" of $300 preliminary counsel fees for the benefit of plaintiff and $100 per
month for "her support and maintenance pending the outcome of the litigation".
73 Nev. 19, 20 (1957) Engebretson v. Engebretson
after the taking of testimony and argument of counsel for both parties, the court below
entered an Order for Preliminary Allowances of $300 preliminary counsel fees for the
benefit of plaintiff and $100 per month for her support and maintenance pending the
outcome of the litigation. The order further recited that it was without prejudice to the right
of plaintiff to make further application for allowances for the same purposes. The defendant
husband filed notice of appeal from this order and plaintiff has moved to dismiss the appeal
upon the ground that the same is not an appealable order. Rule 72 (b) N.R.C.P.
Appellant concedes that for many years the rule of the nonappealability of such an order has
been the law of this state. Harrison v. Harrison, 54 Nev. 369, 17 P.2d 693; Kapp v. Kapp, 31
Nev. 70, 99 P. 1077, 21 Ann.Cas. 599. He contends, however, that this rule was changed by
the legislature in 1949 by its enactment of NCL 1943-49 Supp., sec. 9474.01 (now NRS
125.170, 125.270) reading as follows: In divorce and separate maintenance actions,
installment judgments for alimony and support shall not be subject to modification as to
accrued installments, but only as to installments not accrued at the time a motion for
modification is filed; provided, however, that the provisions of this act shall not preclude the
parties from entering into a stipulation as to accrued installments prior to the time a motion
for modification is filed.
Appellant contends that the basis for the former rule was that the orders from which
appeals had been attempted could be modified on application; that this was not the case in the
present instance; that some 12 monthly installments of alimony had accrued since the order
and that, under the 1949 statute, it was beyond the power of the district court to modify such
award. Appellant's conclusion does not logically follow. The fact still remains that the appeal
was taken not from a judgment for accrued alimony but from the order of January 24,
1956an order for preliminary allowances, without prejudice to the right to make future
application for further allowances and was in all respects interlocutory and prior to any
proceedings on the merits or looking toward a final judgment.
73 Nev. 19, 21 (1957) Engebretson v. Engebretson
further allowances and was in all respects interlocutory and prior to any proceedings on the
merits or looking toward a final judgment. Such order was not appealable.
The appeal is dismissed with costs to respondent.
Order Denying Rehearing
May 21, 1957. 311 P.2d 412.
Divorce.
Decision of Supreme Court on original submission, that an order for preliminary
allowances to wife in divorce suit for counsel fees and support pending litigation was
interlocutory and not appealable was not construable as permitting a party thereafter to
cause an installment judgment to be entered, take an appeal from such judgment and in
such appeal attack the order for temporary alimony. NRS 125.170, 125.270.
Per Curiam:
The petition for rehearing is denied.
Appellant's petition for rehearing indicates that the effect of our opinion and decision
dismissing the appeal filed February 11, 1957, 73 Nev. 19, 307 P.2d 115, is to hold that,
although an order for the payment of temporary alimony is not appealable under Rule 72(b)
NRCP, a party could thereafter cause an installment judgment to be entered, NRS 125.170,
125.270, take an appeal from such judgment, and in such appeal attack the order for
temporary alimony. Counsel states that this could be the impression likewise gained by the
other members of the bar from a reading of our per curiam opinion dismissing the appeal.
Such was not the intended implication of the opinion. The distinction between temporary and
final orders for the payment of alimony, so far as concerns their appealability, maintains as in
the past, unmodified by NRS 125.170 or 125.270.
____________
73 Nev. 22, 22 (1957) Hughey v. Washoe County
EDDYE RAHE HUGHEY, Appellant, v. WASHOE COUNTY, a Political Subdivision of the
State of Nevada; ERNEST KLEPPE, RAYMOND CAPURRO and
RAY PETERSON, Individually and as Washoe County Commissioners; and
JAMES ROBISON, Respondents.
No. 3947
February 14, 1957. 306 P.2d 1115.
Appeal from the Second Judicial District Court, Washoe County; Gordon W. Rice, Judge,
Department No. 3.
Injured person brought action against county, county commissioners, and employee of
hospital for injuries sustained in fall in hospital. The lower court entered an order dismissing
the action against the county, and the injured person appealed. The Supreme Court, Merrill,
J., held that fact that public hospital established by county under statute was free from
liability for injured person's injuries would not relieve county from legal responsibility,
though county commissioners were without managerial control over the hospital.
Reversed and remanded for further proceedings.
William L. Hammersmith and Ernest S. Brown, of Reno, for Appellant.
A. Dyer Jensen, District Attorney, Washoe County; Woodburn, Forman, Wedge, Blakey
and Thompson, of Reno, for Respondents.
Counties.
Fact that public hospital established by county under statute was free from liability for injuries sustained
by injured person in fall in hospital would not relieve county from legal responsibility though county
commissioners were without managerial control over the hospital. NRS c. 450.
OPINION
By the Court, Merrill, J.:
This is an action brought by appellant as plaintiff for injuries allegedly caused by
negligence.
73 Nev. 22, 23 (1957) Hughey v. Washoe County
injuries allegedly caused by negligence. The injuries resulted from a fall which occurred in
Washoe Medical Center and negligence causing the fall is charged by the appellant to
respondent Robison, an employee at the Medical Center. The trial court ruled that, as a matter
of law, Washoe County could not be held liable for torts committed by employees of the
Medical Center, relying upon Bloom v. Southern Nevada Memorial Hospital, 70 Nev. 533,
275 P.2d 885, and McKay v. Washoe General Hospital, 55 Nev. 336, 33 P.2d 755, 36 P.2d
78. An order was entered dismissing the action as against the county for failure of the
complaint to state a claim upon which relief could be granted. Rule 12(b) N.R.C.P. From that
order this appeal is taken.
Washoe Medical Center is a public hospital established by Washoe County pursuant to the
provisions of Chapter 450 NRS. In Bloom v. Southern Nevada Memorial Hospital and
McKay v. Washoe General Hospital, supra, this court held that a hospital established
pursuant to those statutory provisions is without legal entity and therefore not subject to suit.
The sole question involved in this appeal is whether it follows from the holding in those cases
that the county, likewise, is free from liability. (Freedom of the county from liability for any
other reason is a question which has not yet been reached in these proceedings.)
It does not follow from the fact that the hospital is without independent legal entity that
there is no public responsibility for torts committed by its employees. The hospital is a county
institution established, owned, and supported by the county. The hospital having no entity
apart from the county it must follow that the county is the party legally responsible for
obligations of the hospital.
Respondent county contends that this cannot be true in this case since the control of the
hospital, by statute, is vested in the elected hospital trustees and the county commissioners by
statute are deprived of all power of management. It is contended that the doctrine of
respondent superior cannot apply under these circumstances.
73 Nev. 22, 24 (1957) Hughey v. Washoe County
That the county commissioners are without managerial control does not, however, deprive
the county of representation or control, nor relieve it of liability. The hospital trustees are
elected by the voters of the county. They are officers of the county, representative of the
county and responsible to it within their limited sphere of authority to the same extent as are
the county commissioners within their general sphere.
In Burridge v. Detroit, 117 Mich. 557, 76 N.W. 84, 42 L.R.A. 684, 72 Am.St.Rep. 582, the
court considered municipal liability for negligent maintenance of a sidewalk. Maintenance of
the sidewalk was in the exclusive control of the commissioner of parks and boulevards. The
court stated, This was a city agency and it is error to assume that because the control of the
boulevard was vested in such a body rather than the common council the enterprise was any
the less a city enterprise. The city may act through such agencies as the legislature directs.
To the same effect, Barnes v. District of Columbia, 91 U.S. 540, 23 L.Ed. 440, S.C. 1, Otto,
540; Canon City v. Cox 55 Colo. 264, 133 P. 1040; Bagley v. City of Philadelphia, 148
Pa.Super. 318, 25 A.2d 579; Norberg v. Hagna, 46 S. Dakota 568, 195 N.W. 438, 29 A.L.R.
841.
Reversed and remanded for further proceedings.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 25, 25 (1957) Kimble v. First National Bank
In the Matter of the Estate of LUCY V. KIMBLE, Deceased.
LESTER E. KIMBLE, Appellant, v. FIRST NATIONAL BANK OF NEVADA,
Special Administrator of the Estate of LUCY V. KIMBLE, Deceased: ADDIE CODER,
SAVADA I. SWANEY and ANNA HANEY, Respondents.
No. 3896
February 19, 1957. 307 P.2d 615.
Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
Department No. 2.
Will contest case. The trial court entered judgment admitting will to probate, and
contestant-son appealed. The Supreme Court, Eather, J., held that neighbors, who had been
permitted to testify concerning conduct of testatrix, for purpose of establishing mental
incompetency, were improperly disallowed to testify concerning conversations between
themselves and testatrix, because witnesses were not parties, and proceedings did not involve
claim against estate, within statutes which would make witnesses incompetent in such cases.
Reversed and remanded.
Charles E. Catt, of Las Vegas, for Appellant.
Jones, Wiener & Jones, George M. Dickerson and John F. Mendoza, all of Las Vegas, for
Respondents.
1. Witnesses.
In view of fact that witnesses, who were called by contestant in will contest case to establish mental
incompetency of testatrix, were not parties to action, and had no interest in its result, witnesses did not
belong to class rendered incompetent by dead man's statute. NRS 48.010.
2. Witnesses.
Proceedings, in which son contested mother's will on ground of mental incompetency, did not involve
claim against estate which would tend to reduce or impair estate, but involved dispute between living
persons concerning who was entitled a share in estate, and dead man's statute would not be applicable.
NRS 48.030.
73 Nev. 25, 26 (1957) Kimble v. First National Bank
3. Witnesses.
Neighbors, who were allowed to testify in will contest case brought by son of testatrix, concerning
conduct of testatrix were improperly disallowed to testify concerning conversations between themselves
and testatrix, in effort to show incompetency, because witnesses were not parties, and proceedings did not
involve claim against estate, within statutes relating to incompetency of witnesses in such cases. NRS
48.010, 48.030; Rules of Civil Procedure, Rule 43(c).
4. Appeal and Error.
Failure to make offer of proof where evidence upon its face is material does not preclude party from
questioning on appeal propriety of trial court's exclusion of evidence.
5. Wills.
Where question, in will contest case, was mental competency of testatrix, failure of contestant-son to
make offer of proof, after court had refused to allow his witnesses to testify concerning conversations with
testatrix in effort to show incompetency, would not preclude consideration of ruling on appeal, because of
evident materiality of testimony to issue in case.
OPINION
By the Court, Eather, J.:
This appeal involves a will contest. The appeal is from judgment of the district court
admitting to probate the will of Lucy V. Kimble, deceased. Upon completion of the
appellant's case the court took the case from the jury and ordered dismissal upon the ground
that appellant had failed to prove a sufficient case for the jury. Rule 41 (b) NRCP. Appellant,
son of the testatrix, opposed probate upon the ground that the decedent was not competent to
make a last will and testament because of insanity and unsoundness of mind.
Appellant assigns as error the refusal of the court to admit oral testimony with reference to
conversations had with deceased for the purpose of demonstrating mental derangement which
would affect her ability to execute a will. The court rejected the testimony as prohibited under
sec. 48.010 and sec. 48.030 NRS which provide in part as follows: Sec. 48.010 * * * No
person shall be allowed to testify (a) when the other party to the transaction is dead.
73 Nev. 25, 27 (1957) Kimble v. First National Bank
the transaction is dead. (b) When the opposite party to the action, or the person for whose
immediate benefit the action or proceeding is prosecuted or defended, is the representative of
a deceased person, when the facts to be proven transpired before the death of such deceased
person. * * *. Sec. 48.030 The following persons cannot be witnesses * * * 3. Parties or
assignors of parties to an action or proceeding, or persons in whose behalf an action or
proceeding is prosecuted, against an executor or administrator upon a claim or demand
against the estate of a deceased person, as to any matter of fact occurring before the death of
such deceased person.
Five witnesses were called by appellant to establish the incompetency of the deceased.
They all were neighbors who had observed her conduct and talked with her. No one of them
had the slightest interest in the action or in its outcome. They were permitted to testify as to
the conduct of the deceased, but as to each of the five witnesses all testimony as to
conversations had with the deceased or statements made by her was excluded. That this
hampered them in the presentation of their evidence is disclosed by their comments. In the
examination of one witness we note the following: By the Court: Just state * * * what
happened. Ans. Well, she kept telling me what had happened in her family. I couldn't very
well tell it without saying what she said or the equivalent of it. With another witness the
following exchange occurred: By the Court: * * * I don't want what she said. I want her
conduct without any conversation. * * *. Ans. How could I express her conduct without
telling what she said? By the Court: Tell what she did. * * * Ans. She did nothing but sit
there and talk.
In our opinion it was error to exclude such testimony. As stated In Re Miller's Estate, 31
Utah 415, 88 P. 338, 343, What a man says to those about him is a reliable test of the
strength or weakness of his mental condition. For such purpose the declarations made by the
testator both before and after the execution of the will may be shown.
73 Nev. 25, 28 (1957) Kimble v. First National Bank
[Headnote 1]
The witnesses, not being parties to the action and having no interest in its result, do not
belong to the class which sec. 48.010 NRS renders incompetent. Burgess v. Helm, 24 Nev.
242, 51 P. 1025; Onesti v. Samoville, 48 Nev. 441, 233 P. 846; Su Lee v. Peck, 49 Nev. 124,
240 P. 435.
[Headnote 2]
The proceedings did not involve a claim against the estate which would tend to reduce or
impair the estate, but is rather a dispute between living persons as to who was entitled to
share in the estate. Sec. 48.030 NRS does not, therefore, affect the competency of its
witnesses to give testimony. Duckett v. Duckett, 77 U.S. App. D.C. 303, 134 Fed.2d 527,
529; In Re Welch's Estate, 60 Ariz. 215, 134 P.2d 701; In Re Miller's Estate, supra; In Re
Anderson's Estate, 114 Wash. 591, 195 P. 994.
[Headnotes 3-5]
The only answer made by the respondents with reference to this assignment of error seems
to be that it has not been shown to be prejudicial in that the appellant did not follow up with
an offer of proof so that we do not know that the conversations, if admitted in evidence,
would have altered the situation. Rule 43(c) NRCP provides for offer of proof. However, it
would seem that the reason and purpose of the offer is simply to establish that evidence which
upon its face would not appear to be material is in fact material. Failure to make an offer of
proof where the evidence upon its face is material does not preclude a party from questioning
on appeal the propriety of the trial court's exclusion of evidence. Meaney v. United States, 2
Cir., 112 Fed.2d 538; 130 A.L.R. 973; 53 Am.Jur., p. 90, sec. 101 (Trial). The question for
the jury would have been whether the decedent was suffering from such a derangement of
mind as would render her incompetent to make a will or as would have created delusions and
hallucinations which would have affected her disposition to recognize her son, the contestant
of the will. The conversations had with the decedent may very well have gone to the heart
of the issues which the jury was called on to decide.
73 Nev. 25, 29 (1957) Kimble v. First National Bank
the decedent may very well have gone to the heart of the issues which the jury was called on
to decide.
Reversed and remanded for new trial.
Badt, C. J., and Merrill, J., concur.
____________
73 Nev. 29, 29 (1957) Hart v. City of Las Vegas
WILLIAM E. HART, III, Appellant, v. THE CITY OF LAS VEGAS, NEVADA,
a Municipal Corporation, Respondent.
No. 3946
February 25, 1957. 307 P.2d 617.
Appeal from judgment of dismissal of the Eighth Judicial District Court, Clark County;
John F. Sexton, Presiding Judge, Department No. 3.
Lessee brought action against city for abatement of nuisance and for damages, because
city, in connection with its sewage disposal plant, maintained an open ditch about forty feet
from premises on which lessee maintained a tavern and about fifteen feet from his well. The
trial court entered judgment dismissing the action, and the lessee appealed. The Supreme
Court, Merrill, J., held that where cause of action for abatement and injunctive relief became
moot, because city moved the ditch to a point about 400 yards from lessee's premises, action
for damages was properly dismissed for failure of lessee to comply with provisions of city
charter that money claims or demands, whether arising in contract or tort, shall be filed with
city prior to suit.
Affirmed.
William Singleton, Charles W. Deaner, and Jack E. Butler, of Las Vegas, for Appellant.
Howard W. Cannon, City Attorney, and Ralston Hawkins, Assistant City Attorney, of Las
Vegas, for Respondent.
73 Nev. 29, 30 (1957) Hart v. City of Las Vegas
1. Municipal Corporations.
Provision of city charter providing that money claims or demands, whether arising in contract or tort,
shall be filed with city prior to suit against city, has no application to an action for abatement of a nuisance.
St.1955, c. 152, sec. 1.
2. Municipal Corporations.
Where lessee brought action against city for abatement of nuisance and for damages, because city, in
connection with its sewage disposal plant, maintained an open ditch about forty feet from premises on
which lessee maintained a tavern and fifteen feet from his well, and cause of action for abatement and
injunctive relief became moot because city moved the ditch to a point about 400 yards from lessee's
premises, trial court properly dismissed the action because of failure of lessee to comply with provision of
city charter that money claims or demands, whether arising in contract or tort, shall be filed with city prior
to suit. St.1955, c. 152, sec. 1; Rules of Civil Procedure, Rule 2.
OPINION
By the Court, Merrill, J.:
This is an action brought by appellant for abatement of nuisance and for damages. The trial
court ordered dismissal of the action upon the ground that no claim had been filed with
respondent city prior to suit and this appeal was taken. The sole question involved is whether
in such a case as this the filing of a claim is a necessary condition precedent to action.
The nuisance as alleged in the complaint is an open ditch maintained by the city in
connection with its sewage disposal plant. The ditch was stated to pass approximately 40 feet
from the premises upon which appellant, as lessee, maintains a tavern, and 15 feet from his
well. Appellant asserts that the ditch contaminates his water supply and fills the air with
nauseously offensive odors to the detriment both of his own well-being and of his business.
The requirement for the filing of a claim before bringing of a suit is found in sec. 18 of the
charter of the City of Las Vegas, 1955 Stats. Nev., Ch. 152, p. 208. This section provides in
part: No demand or account, arising out of contract, express or implied, shall be heard,
considered, audited, approved, allowed or paid unless a written notice thereof, duly
authenticated, and in such form and containing such information relative to such demand
or account as the board of commissioners shall prescribe, shall have been first presented
to and filed with the city comptroller within six months from the time the last item of such
demand or account shall have become due and payable; nor shall any claim, arising in
tort, be heard, considered, audited, approved, allowed or paid unless a written notice
thereof, duly authenticated, and in such form and containing such information relative to
such claim as the board of commissioners shall prescribe, shall have been first presented
to and filed with the city clerk within six months from the time the acts from which said
claim arose shall have occurred."
73 Nev. 29, 31 (1957) Hart v. City of Las Vegas
written notice thereof, duly authenticated, and in such form and containing such information
relative to such demand or account as the board of commissioners shall prescribe, shall have
been first presented to and filed with the city comptroller within six months from the time the
last item of such demand or account shall have become due and payable; nor shall any claim,
arising in tort, be heard, considered, audited, approved, allowed or paid unless a written
notice thereof, duly authenticated, and in such form and containing such information relative
to such claim as the board of commissioners shall prescribe, shall have been first presented to
and filed with the city clerk within six months from the time the acts from which said claim
arose shall have occurred.
[Headnote 1]
Appellant first contends that this section has no application to an action for abatement of a
nuisance since the section clearly applies only to demands for money. In this respect we agree
with the position of appellant. In Champion v. Sessions, 1 Nev. 478, it was held that no claim
need be filed where the relief sought was an injunction. The court stated (p. 482), The law
which declares no person shall sue a county in any case for any demand unless he or she
shall first present his or her claim or demand to the board of county commissioners and
county auditor for allowance' has reference only to money demands, a fact which is perfectly
clear from the language of the act itself.
In this case, however, the complaint for abatement and injunctive relief has become moot,
if not doubly moot. At the time of trial the record discloses that the ditch had been moved by
the city to a point some 400 yards from the premises of appellant. Contamination of the water
supply is not shown to be a continuing condition under these circumstances and evidence as
to the continued existence of offensive odors at the appellant's establishment is far from
satisfactory. More than this, by the time of hearing on appeal it was established that appellant
had terminated his lease and left the premises and that his interest in the location of the
ditch had accordingly ceased to exist.
73 Nev. 29, 32 (1957) Hart v. City of Las Vegas
and that his interest in the location of the ditch had accordingly ceased to exist. We are left,
then, with appellant's complaint for money damages.
Upon this point appellant contends that his claim for money damages is merely incidental
to his claim for equitable relief; that since no claim need be filed as a condition to his suit in
equity, no claim need be filed as a basis for the incidental money damages which a court in
equity will allow as necessary to the granting of complete relief. Upon this proposition
authority is divided, although it must be conceded that the weight of authority would appear
to support appellant's contention. See Anno., 52 A.L.R. 639, 659.
A study of the authorities, however, leaves us in grave doubt as to the validity of the
proposition that the money demand is but incidental to the equitable relief sought. It may be,
as stated by some of the authorities, that the case involves but one cause of action, the subject
being the nuisance. It does, nevertheless, seek a double remedy: damages as to the past,
injunction as to the future. These rights do not exist in the alternative. They coexist. The
independent nature of the remedies was suggested by this court in Champion v. Sessions,
supra. The relief sought by the plaintiff is not damages for an injury done, but an injunction
to restrain the defendant from the commission of an illegal act which he alleges would result
in irreparable injury * * * His object is to prevent the commission of a trespass, not to recover
damages for one already committed.
While each remedy does relate to the cause of action we fail to see how it can be
contended that of these two remedies one, as a matter of arbitrary rule, is incidental or
subordinate to the other. We are not convinced by the argument that since an injunction is
sought we are in equity and all remedies must be regarded as incidental to the equitable
remedy. In these days when equity and law act in combination in one form of civil action
(Rule 2, NRCP) this would seem to be placing too much significance upon equity's historic
power to do full justice.
73 Nev. 29, 33 (1957) Hart v. City of Las Vegas
[Headnote 2]
The charter of Las Vegas expressly provides that money claims or demands, whether
arising in contract or tort, shall be filed with the city prior to suit. We see no good reason to
exclude from the operation of this charter provision such a trespass as is involved here simply
because complete relief requires the injunctive remedy as well as monetary compensation and
because a single court in a single action can accomplish the full result.
Such was the view of the Michigan supreme court in Northrup v. City of Jackson, 273
Mich. 20, 262 N.W. 641, 643, where it was said, We see no reason for emasculating the
charter by construction in order to exempt a claim peculiarly within its purpose because
plaintiffs made an election to ask damages in equity instead of suing at law. Had damages
been awarded in lieu of abatement, or had there been no prayer for damages, but the court had
allowed them in the exercise of its plenary equitable powers, a different question would be
presented. We think the charter should be given force according to its language and purpose
and exceptions permitted only upon sound distinctions.
Such was the view of the New York court of appeals in the early case of Knox v. The City
of New York, 55 Barb. 404 (apparently ignored without comment in later New York cases)
where it was said, The fact that further relief of an equitable nature has also been demanded
cannot have the effect of excluding from the operation of the statute that which would
otherwise have been so plainly within it.
We conclude that the trial court was not in error in dismissing the action for money
damages upon the ground that no demand had been filed as required by the charter of the city
of Las Vegas.
Judgment affirmed.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 34, 34 (1957) Backer v. Gowen
LIZZIE BACKER, FRED D. BACKER and WILLIAM J. BACKER, Appellants, v. FRANK
E. GOWEN and OLGA GOWEN, Respondents.
No. 3927
February 28, 1957 307 P.2d 765
Appeal from Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
Department No. 1.
Quiet title to suit to establish boundary between parties' properties, and involving location
of certain common section corner. The trial court entered judgment favoring defendants, and
plaintiffs appealed. The Supreme Court, Badt, C. J., held that evidence warranted findings
against plaintiffs' contentions and that defendants had proved that certain corner, some 80 feet
west of center line of highway, was corner common to certain four sections.
Affirmed.
(Rehearing denied April 1, 1957.)
Guild, Bushey & Guild, of Reno, and Foley and Foley, of Las Vegas, for Appellants.
Taylor & Gubler, Earl & Earl, all of Las Vegas, and Russell B. Holloway, Oklahoma City,
Oklahoma, for Respondents.
1. Boundaries.
Post found by surveyor was without evidentiary value as location of original monument, where, though
original field notes of surveyors who had made original government survey stated that monument was
marked, post did not appear to have any markings, and attempted explanation of discrepancy created
further confusion concerning other monument marking another corner.
2. Boundaries.
In view of admission of witness in quiet title suit involving location of certain common section corner,
that he had made no effort to locate section corner in question with reference to section corners and that he
had made no survey and that he had not tested position of corner he set by rules of double proportionate
measurement, court was justified in rejecting contention of plaintiffs that, assuming corner in
question to be lost corner, it had been reestablished by witness as position indicated
by previous witness or at any one of three different points east of highway.
73 Nev. 34, 35 (1957) Backer v. Gowen
contention of plaintiffs that, assuming corner in question to be lost corner, it had been reestablished by
witness as position indicated by previous witness or at any one of three different points east of highway.
3. Boundaries.
Where inquiry has been directed to determining location of original section corner, findings of court,
often based largely on hearsay evidence, have, as matter of necessity, relied on evidence of acquiescence of
parties concerned, acts of public authorities, location of established boundary lines, general reputation and
tradition as to where lost monuments had been located, including testimony of persons who saw them when
they were formerly discernible.
4. Appeal and Error.
That opinion of trial court in quiet title suit involving location of certain common section corner found
that certain corner was location of common corner while description in findings disclosed what was known
as another corner was not error of which appellants could complain, where, whichever point was correct,
no part of land of either party would encroach on that of other.
5. Appeal and Error.
Admission of map of survey made before litigation and before defendants' ownership attached to property
in dispute in quiet title suit involving location of certain common section earlier by person who was ill and
unable to testify in person was proper, or at least not prejudicial, where trial judge viewed map in its proper
perspective in connection with other plats received in evidence and it could not be said that he based his
decision on this survey.
6. Evidence.
Admission of state highway acquisition map in quiet title suit involving location of certain common
section corner was proper, though map was dated in 1938 while department's letter with reference to it was
dated in 1926, where map was properly identified.
7. Evidence.
Admission of map prepared by realty company from information deemed by it reliable showing many
parcels of property in district was proper in quiet title suit involving location of certain common section
corner, where accepted by court as cumulative evidence of general and common repute.
8. Evidence.
Map received by a defendant, in quiet title suit involving location of certain common section corner, from
highway department in connection with acquisition of defendant's property for highway purposes, though
not identified by highway official but simply received by defendant in mail, was proper, where map was
subsequently properly identified as highway acquisition map.
73 Nev. 34, 36 (1957) Backer v. Gowen
OPINION
By the Court, Badt, C. J.:
Although this action in the court below was primarily in the nature of a suit to quiet title, it
is for all intents and purposes an action to establish the boundary between the plaintiffs' land,
namely, S 1/2 SE 1/4, section 17, and defendants' land situate along the west line of SW 1/4
SW 1/4, section 16, T. 21 S, R. 61 E, M.D.B. & M. This boundary in turn is determined by
the location of the section corner common to sections 16, 17, 20 and 21 of said township and
range. All questions of facts and of law presented to the trial court and raised in this court on
appeal have to do with the location of such common corner. The Backers, plaintiffs below
and appellants here, contend that such corner is on the center line of north-south U. S.
Highway 91, the Las Vegas-Los Angeles highway, widened to 80 feet, and in the center of the
old U. S. Highway 91 before being so widened. The contention of the Gowens, defendants
below and respondents here, is that such common corner lies 79.45 feet west of such center
line. If the contention of appellants is sustained, their land in section 17 abuts the westerly
line of the highway. If the contention of the Gowens is sustained, there is a strip of land
described in their cross complaint to quiet title fronting 1,118 feet on the westerly line of the
highway with a depth varying from 53.89 feet at the northerly end of the strip to 22.04 feet at
its southerly end, which is the south boundary of section 16, and which lies in and is a part of
SW 1/4 SW 1/4, section 16, and between the Backer land in section 17 and the westerly line
of the highway.
The trial court found that the evidence of the plaintiffs failed to sustain their claim that the
corner common to sections 16, 17, 20 and 21 was in the center line of the highway and that,
on the other hand, there was sufficient evidence to establish the common corner known as the
Hesse corner some 80 feet west of the center line of the highway.
The question involved is almost entirely a factual one and we have concluded that there
is substantial evidence in the record to support the trial court's rejection of the plaintiffs'
contentions that the evidence compelled an acceptance of a point fixed in the center line
of the highway as the discovered original government corner and original government
monument evidencing the same fixed by the original government survey of 1SS1.
73 Nev. 34, 37 (1957) Backer v. Gowen
and we have concluded that there is substantial evidence in the record to support the trial
court's rejection of the plaintiffs' contentions that the evidence compelled an acceptance of a
point fixed in the center line of the highway as the discovered original government corner and
original government monument evidencing the same fixed by the original government survey
of 1881. We have come to the further conclusion that there is substantial evidence to support
the trial court's finding that the corner known as the Hesse corner, some 80 feet west of the
center line of the highway, was the corner common to the four sections, and that the judgment
must, therefore, be affirmed.
The voluminous record of the extensive testimony of some 13 witnesses, the consideration
of some 50 exhibits, many of which included groups of related exhibits, and the fact that the
parties found it necessary to submit to us some 255 pages of briefs will indicate that a
complete analysis of the evidence would prolong this opinion to unjustifiable lengths. We
have, accordingly, found it necessary to restrict our discussion of the evidence to so much as
we consider necessary as showing substantial support of the court's findings.
[Headnote 1]
(1) The township was originally surveyed by the United States in 1881 through its
surveyors Brunt and Proctor, and the original plat of the survey, as well as the original field
notes of the surveyors were received in evidence. From such evidence it appears that the
original corner common to sections 16, 17, 20 and 21, T. 21 S, R. 61 E, M.D.B. & M., was
established and a monument placed at said corner. Munro, a witness for plaintiffs, claims to
have found such corner in a survey made by him in 1925 while he was surveying for the
Nevada State Highway Department as a location engineer, surveying the realignment of the
old route which is now U. S. Highway 91. He testified entirely from his notes and without
independent recollection. Those notes showed that the monument found by him and claimed
to be the original monument set by Brunt and Proctor was a post about three feet in height
set firmly in the ground.
73 Nev. 34, 38 (1957) Backer v. Gowen
and Proctor was a post about three feet in height set firmly in the ground. It does not appear to
have any markings on it. However, the notes of Brunt and Proctor identify the monument at
this corner as follows: Set Lime Stone, 14x8x6 in. 9 ins. in the ground for Cor. to Secs. 16,
17, 20, 21. Marked with 3 notches on S. and 4 notches on edges. Dug pits 18x18x12, in each
Sec. 5 1/2 ft. dist. and raised a mound of earth, 2 ft. high, 4 1/2 ft. base. Land level. Soil 2nd
rate. Undergrowth of greasewood and bunch grass. Plaintiffs' witness, surveyor Reid, who
followed Munro, attempted to explain this discrepancy by the suggestion that there was a
limestone monument one mile south, namely, at the corner common to sections 20, 21, 28
and 29, and that Munro had confused the two in making his notes, although plaintiffs
interpret Reid's testimony as indicating that Brunt and Proctor, not Munro, had confused the
two monuments. It was testified that such confusion was by no means unusual. This but leads
to further difficulties as the Brunt and Proctor notes describe an entirely different stone
monument at the corner common to sections 20, 21, 28 and 29. The post thus found by
Munro was therefore without evidentiary value as to the location of the original monument.
Whitmore v. McNally (Tex. Civ. App.), 39 S.W.2d. 633. There were other discrepancies
between the Munro notes and the Brunt and Proctor notes, and Munro's testimony was
contradicted on other substantial matters by defendants' witness Bobeau, whose testimony is
later referred to. The learned trial judge, in rendering his decision, said: Now, I am not really
impressed with the testimony of Mr. Munro. He testified from memory from his notes, and he
did testify that he found what he thought was the original monument which was in the center
of the highway. But too many factors have entered into this case to cause the court to believe
that this monument was erected originally by Brunt and Proctor. The court finds and feels that
there was a monument there, as testified to by both Mr. Munro and Mr. Boyer, but the court
does not believe that the plaintiffs have sustained the burden of proof in proving that that was
the original monument.
73 Nev. 34, 39 (1957) Backer v. Gowen
monument. The original field notes of Brunt and Proctor describe this monument, and if it
had been undisputed that the monument as found by Munro was the original monument, then
the descriptions in the field notes did not control. But there is a very close question of fact,
and disputed evidence, as to whether or not that was the original monument. For that reason
the field notes must be considered, and they are very valuable evidence on this question.
1
Formal findings followed this decision.
The trial court thus fully recognized, as a matter of law, that the original monument
evidencing the corner common to sections 16, 17, 20 and 21, if found and identified (or, if
destroyed or obliterated, if its location could be fixed), would control the situation
irrespective of the field notes and, undoubtedly, irrespective of the testimony of the
defendants' witnesses hereinafter referred to. As a finding of fact however, it was entirely
within the province of the court to reject Munro's testimony and, with it, to reject the
testimony of the plaintiffs' witnesses who followed Munro in an attempt to establish the
location of the corner in question at a point on the center line of the highway, and referred to
on plaintiffs' exhibits as Munro section corner or as Section corner as found by R. J.
Munro Feb. 1925, reset Sept. 1953 from Munro's notes, by Walter G. Reid, R.E. 235.
(2) Appellants, apparently anticipating at least the possibility that this court would thus
affirm the trial court's rejection of Munro's testimony and the corner attempted to be
identified by him as the original government corner, next advance the theory that if such be
the case, then the corner common to sections 16, 17, 20 and 21 has become a lost corner and
can only be established by the rule of double proportionate measurement;2 that their
witness Reid did apply the rule of double proportionate measurement, and under such
rule placed the corner common to the said four sections 94.3 feet east of the center line of
the highway, or, from Boyer's notes to the section corner common to sections 15, 16, 21
and 22, and Thompson's distance to the quarter corner on the south line of section 17,
155.9S feet east of such center line, or, from Rathbun's survey map {giving the distance
to the quarter corner one half mile west) 97.S2 feet east of the center line of the highway.
____________________

1
Supporting the learned trial judge in this conclusion, see Manual of Surveying Instructions, U. S. Dept. of
Interior, Bureau of Land Management, 1947, p. 351, sec. 354: In case of material disagreement between the
particular evidence in question and the record calls, the process of elimination of those features regarding which
there may be doubt, after making due allowance for natural changes, will serve a most useful purpose, as
follows:
(a) The character and dimensions of the monument in evidence should not be widely different from the
record;
(b) The markings in evidence should not be inconsistent with the record * * *.
73 Nev. 34, 40 (1957) Backer v. Gowen
21 has become a lost corner and can only be established by the rule of double proportionate
measurement;
2
that their witness Reid did apply the rule of double proportionate
measurement, and under such rule placed the corner common to the said four sections 94.3
feet east of the center line of the highway, or, from Boyer's notes to the section corner
common to sections 15, 16, 21 and 22, and Thompson's distance to the quarter corner on the
south line of section 17, 155.98 feet east of such center line, or, from Rathbun's survey map
(giving the distance to the quarter corner one half mile west) 97.82 feet east of the center line
of the highway. This, and similar testimony, is the portion of the record relied upon by
appellants in support of their contention that Reid properly established the corner by double
proportionate measurement. Yet he testified that he made no effort to locate the section
corner in question with reference to the section corners; that he made no survey; that he did
not test the position of the corner he set, by rules of double proportionate measurement;
that he was not re-establishing a section corner; that he found nothing in the center of
the highway to indicate that any corner had ever been at that point except Munro's notes;
that he rejected all of the recorded surveys locating the corner west of the highway
because none of them really attempted to establish the corner; that he could not find any
reason to accept them; that if they had considered the original corner lost, it would have
had to be re-set by double proportion; that he gave the highway acquisition map, showing
purchases of rights of way based on the section corner as shown on the Snyder survey
and accepted by the other recorded surveys in Clark County, no weight because none of
them attempted to establish the true position of the original corner in their surveys.
____________________

2
Manual of Surveying Instructions, U. S. Dept. of Interior, Bureau of Land Management, 1947, at p. 292,
sec. 367, discusses and defines double proportionate measurement as follows:
The method of double proportionate measurement is generally applicable to the restoration of lost corners
of four townships and of lost interior corners of four sections.
One identified original corner is balanced by the control of a corresponding original corner upon the
opposite side of a particular missing corner which is to be restored, each identified original corner being given a
controlling weight inversely proportional to its distance from the lost corner.
368. In order to restore a lost corner of four townships, a retracement will first be made between the nearest
known corners on the meridional line, north and south of the missing corner, and upon that line a temporary
stake will be placed at the proper proportionate distance; this will determine the latitude of the lost corner.
Next, the nearest corners on the latitudinal line will be connected, and a second point will be marked for the
proportionate measurement east and west; this point will determine the position of the lost corner in departure
(or longitude).
Then, through the first temporary stake run a line east or west, and through the second temporary stake a
line north or south, as relative situations may determine; the intersection of these two lines will fix the position
for the restored corner. The same method is then applied to a lost interior corner of four sections, with
requirement that the entire distance be measured between the nearest identified corners both north and south and
east and west.
73 Nev. 34, 41 (1957) Backer v. Gowen
rules of double proportionate measurement; that he was not re-establishing a section corner;
that he found nothing in the center of the highway to indicate that any corner had ever been at
that point except Munro's notes; that he rejected all of the recorded surveys locating the
corner west of the highway because none of them really attempted to establish the corner; that
he could not find any reason to accept them; that if they had considered the original corner
lost, it would have had to be re-set by double proportion; that he gave the highway acquisition
map, showing purchases of rights of way based on the section corner as shown on the Snyder
survey and accepted by the other recorded surveys in Clark County, no weight because none
of them attempted to establish the true position of the original corner in their surveys. He did
no surveying himself, except to check some angles and distances with reference to the Munro
corner.
[Headnote 2]
In view of the foregoing, the trial court was justified in rejecting the contention of
plaintiffs that, assuming the corner in question to be a lost corner, it had been re-established
by Reid at the position indicated by Munro or at any one of three different points east of the
highway.
The findings, conclusions, judgment and decree of the trial court denying plaintiffs any
relief must, therefore, be sustained through plaintiffs' lack of proof that any part of the S 1/2
of the SE 1/4 of section 17, to which subdivision lands owned by plaintiffs are confined, abut
to any extent whatsoever upon U. S. Highway 91 or upon the westerly right of way line
thereof.
(3) But the findings, conclusions, judgment and decree quieted the title of defendants to
the 1118-foot strip of land, varying in depth as above described, abutting the westerly line of
the highway, as comprising a part of SW 1/4 of SW 1/4 of section 16, and based this upon its
conclusion that the corner common to sections 16, 17, 20 and 21 was a corner known as the
Hesse corner. Appellants contend that this is entirely without support of any kind in the
evidence. They claim that defendants rely on the Hesse corner as a re-establishment of a
lost corner; that this could be accomplished only by double proportionate measurement
and that such has not been done.
73 Nev. 34, 42 (1957) Backer v. Gowen
Hesse corner as a re-establishment of a lost corner; that this could be accomplished only by
double proportionate measurement and that such has not been done. Respondents, however,
refuse to be placed in such position, deny that they are relying on the Hesse corner as a
re-establishment of a lost corner; deny that they contend that the corner in question is a lost
corner; and assert that the court's finding of the Hesse corner as the original corner common
to said four sections is not only amply supported by the evidence, but that such corner has
been accorded general acceptance for almost 30 years. As noted above, we have concluded
that the court's finding in this regard has substantial support. In this respect the learned trial
judge said in his decision: Now, I feel that there is sufficient evidence in this case to
establish that the common corner is at the place which is known as the Hesse corner'. It has
been relied upon by the parties for years. Mrs. Backer's testimony is to the effect that she
didn't even dispute the ownership of the Gowens. We always thought that section 16 was in
front of my property until after my husband's death, then we investigated'. And Mr. William J.
Backer also testified that he considered that was Gowens' property and offered to buy it, and
there was a question of selling him some of Backer [Gowen?] property. There is no dispute at
all that all of the parties, including the taxing authorities, the highway department and the
residents of the community thought, and the common repute was, that this frontage was the
Gowen property.
* * * Before the cloud was cast upon it, he did sell some of the property to the Sosses, and
also to the state highway for road purposes. The state highway returned the deed to the
Backers, informing them they didn't need the deed because their property didn't border on the
highway, and at that time the Backers understood that and accepted the return of the deed,
and evidently were in harmony with the records of the state highway department at that time.
The equities in this case are entirely with the Gowens.
Following the same course we adopted in referring only to so much of the evidence as
was necessary to support the court's rejection of the claim of plaintiffs, we must curtail
the length of this opinion by referring only to so much of the evidence as appears
necessary to support the court finding that the Hesse corner was the corner common to
sections 16, 17, 20 and 21 in said township.
73 Nev. 34, 43 (1957) Backer v. Gowen
only to so much of the evidence as was necessary to support the court's rejection of the claim
of plaintiffs, we must curtail the length of this opinion by referring only to so much of the
evidence as appears necessary to support the court finding that the Hesse corner was the
corner common to sections 16, 17, 20 and 21 in said township.
The predecessor of the Gowens, C. P. Squires, of advanced years and unable to appear as a
witness, testified by way of deposition. He had lived in Las Vegas since 1905 and acquired
the SW 1/4 of SW 1/4 of section 16 by tax deed from Clark County in 1926. At that time he
saw the southwest corner of the property. It was designated by a stake located 79 or 80 feet
west of the center line of the highway. He also saw the stake serving as a monument of the
NW corner of the 40 acre tract about 150 feet west of the place that the center line of the
highway crossed the north line of his property. This would be the NW corner of the SW 1/4
of the SW 1/4 of section 16. In December of the same year the highway sought to purchase
from him 80 feet for purposes of a highway through the property. He received a highway plat
which showed the distance from the center line of the highway to the common section corner
as 79.37 feet. The plat was identified by highway officials. The purchase was consummated
and the state highway department paid his $7,500 for the land. In 1936 he had conversations
with the Backers in which he offered to sell them the property. I just thought it would be a
nice thing for them to have their property extended out to front on the highway and at the
same time I might receive a little money for it. * * * I discussed with Mr. and Mrs. Backer the
distance that my west line was located from the center of the highway * * * there never was
any contradiction, never was any discussion or argument about where the line was. They
seemed to accept it the same as I did. * * *. He further testified to his sale in 1944 to Mr. and
Mrs. Gowen of the portion of the SW 1/4 of the SW 1/4 of section 16 lying west of the
highway and that he then showed Mr. Gowen the corner stakes above referred to and which
had been there when he purchased the property.
73 Nev. 34, 44 (1957) Backer v. Gowen
corner stakes above referred to and which had been there when he purchased the property.
C. C. Boyer, a civil engineer and highway engineer for some fifty-two years, was
connected with the Nevada Highway Department from 1920 to 1950 and was division
engineer in Las Vegas during the construction of the highway south of Las Vegas and at the
time Fred Hesse surveyed the lines between sections 16 and 17 in 1925 and 1926. He
personally saw Hesse making the survey and although he did not go over it in detail with him
until after it was completed, he did ask him to identify some of the points along it on the
ground. Hesse did not file his notes, as the statute requiring land surveyors to file their plats
and notes was not in effect at that time. See historical references at NRS 625.340 et seq.
Hesse pointed out to him a 4x4 stake eighteen inches or two feet out of the ground with rocks
around it and identified the stake as the corner in question, and Boyer used it to tie in the
center line of the highway, approximately 80 feet to the east of such corner. At the same time
Hesse identified for him the sixteenth corner on the west boundary of the forty, 145 or 146
feet north of the section corner. Boyer subsequently, on behalf of the state highway
department, made further tie-ins from the center line of the proposed highway to the section
line as found by Hesse up to a mile or mile and a half to the north, submitted them to the
highway department and they were accepted by the department. Hesse had died several years
before the trial. Neither his plats nor his field notes were produced and it is true that the
record does not disclose by what ties Hesse fixed the corner in its position. Boyer testifies
that Hesse had worked apparently from corners that were in place, or marks so that they
were identified and that he accepted the Hesse corner for such reason and because the
distances given on the west line of section 16 were pretty close to what they should have
been. Boyer also identified a number of deeds under which various persons had conveyed
strips for rights of way to the State of Nevada in 1926 and in 1943, all based upon the
acceptance of the Hesse corner.
73 Nev. 34, 45 (1957) Backer v. Gowen
In 1929 the board of commissioners of Clark County designated a right of way for a public
road, which was the predecessor of U. S. Highway 91, and Arthur R. Thompson, civil
engineer, made a survey pursuant thereto. Although he found no monument at the corner
common to sections 16, 17, 20 and 21, he established this corner as follows: The north line
of section 21 from the north quarter corner west through a sixteenth corner, which had been
established, was produced west to an intersection with a line run between the west quarter
corner of section 16 and the west quarter corner of section 21 and at this point a concrete
monument and witness posts were set as shown [on his plat]. He further certified: This
location is in accordance with lines as run by the state highway department. Bearings of lines
were established by direct solar observation. His plat was approved by the county
commissioners of Clark County in February, 1930.
L. M. Bobeau, a registered land and mineral surveyor of Nevada, testified at length
concerning the Thompson map. Bobeau had followed his profession for about 50 years and
held responsible positions with the government, including the Department of Interior, the
Atomic Energy Commission, the army and the United States Geological Survey in other
states as well as Nevada. With reference to his work in connection with the proper location of
the corner common to sections 16, 17, 20 and 21, he testified as follows: I put in about
seventeen days direct field work, after several days of record search and consultation with
other surveyors and various other sources from which I thought I could get information
pertaining to this particular corner. And I laid down a precise base line and triangulation
system so that I would be able to correlate and coordinate other section corners as well as the
one in particular in the area. And I retraced from the existing surveys of record. I also made
several interpretations on some of those surveys to duplicate them upon the ground, from
which I made, I would say, quite extensive excavations in my effort to find any other
evidence of a corner at that point. * * * I was assisted by a survey crew and had as my
principal assistant Mr.
73 Nev. 34, 46 (1957) Backer v. Gowen
my principal assistant Mr. George Roberts who has had about thirty years experience and is a
very capable man. * * * I endeavored by double proportionate measurements to verify the
section in question. I computed and made up some coordination figures from my
triangulation, and due to the fact that the outlined section corners upon which they would
depend are not in satisfactory position as to evidence, I had to give up the idea, abandon it. I
was unable by double proportionate measurements to verify the location of the section corner.
* * * From my work on the ground and from my investigation of the matter I did form an
opinion as to the correct section corner common to sections 16, 17, 20 and 21, T. 21 S, R. 61
E. In my opinion the correct corner in question would be the concrete monument shown on
this Rathbun survey. The Rathbun survey showed the common corner to be 80.33 feet west
of the center line of the highway. Bobeau's actual measurement showed it to be 80.37 feet
west of the center line. Bobeau was then shown a series of some twenty-eight plats, all
comprising one exhibit introduced by defendants, testified to his familiarity with all of these
plats from careful examination and found that they represented twenty-eight recorded surveys
in the county by thirteen surveyors and ranging in time from 1930 to 1953, all of which had
adopted the Rathbun or Thompson corner. At this point he discovered a concrete monument
six inches square at the top and a foot in depth, with an iron in the top of it. Photographs of
the monument were received in evidence. He carefully and exhaustively investigated for
evidence of any other monuments or marks at this corner but found none. He accepted the
monument as a matter of common repute used by thirteen other surveyors and twenty-eight
recorded plans based thereon. In his investigations and surveys he found no evidence to cause
him to doubt or dispute the monument, and in determining the location of the section corner
he knows of no evidence that he did not use. He testified that according to survey rules and
law, when measurements on the ground are inconsistent (he had examined and rejected the
Munro survey), reliance could be placed on a matter of common repute, the testimony of
the residents in the area and the physical evidence on the ground.
73 Nev. 34, 47 (1957) Backer v. Gowen
survey), reliance could be placed on a matter of common repute, the testimony of the
residents in the area and the physical evidence on the ground. The concrete monument
referred to is generally identified as the corner in question and he found out nothing to the
contrary from any source whatsoever to dispute the fact that it is the true corner in question.
He himself ran a number of lines in identifying the corner: There were nearby triangulations,
stations or monuments. I think an iron pipe was set about 180 feet away from this monument
allowing us to triangulate the distance from the northwest corner of section 20, that is the next
mile west of this corner; and that work was based, of course, on a base line along the Union
Pacific railroad, quite a long base line, and all of those corners had to be accessible from that
base line. Due to numerous buildings and works of man and improvements, it was impossible
to work directly on the section lines. * * * There were about three areas in this vicinity and
close around this corner that were excavated for a matter of fifteen or twenty feet in diameter.
That is, test positions, and to approximately a three foot depth, to be sure that there was
nothing concealed in the fill of the shoulder of the road at that point, and I did not find
anything. With regard to the effect of the acceptance of the Munro corner as identified and
approved by Reid, Bobeau testified: It would almost wipe out the 200 foot strip, the right of
way of the Southern Nevada Power Company. It would encroach entirely upon the frontages
of the respective properties on both sides of the highway. 193 feet would take practically all
of the frontage of some of those motels. * * * All property boundaries and titles would be
affected in sections 16, 17, 20 and 21. As to the importance accorded such a situation, see
Rowell v. Weinemann, 119 Ia. 256, 93 N.W. 279, 97 Am.St.Rep. 310.
It should be remembered again in consideration of the sufficiency of the evidence to justify
the trial court's rejection of the Munro corner and the acceptance of the Hesse corner that
neither is claimed by its respective proponents to be the result of a re-survey to establish a
lost corner.
73 Nev. 34, 48 (1957) Backer v. Gowen
a lost corner. Neither party was relegated to the necessity (assuming such necessity under
government regulations) of the sole method of double proportionate measurement. Nor has
such necessity gone without question in the courts. In McKenzie v. Nichelini, 43 Cal.App.
194, 184 P. 871, and in Hammond Lumber Company v. Haw, 96 Cal.App. 390, 274 P. 386,
the court held the evidence to be sufficient to permit approximate location of quarter corners
established under the original survey so as to justify rejection of the proportionate method of
locating them. See also the dictum in Thomsen v. Keil, 48 Nev. 1, 226 P. 309, 232 P. 1080.
[Headnote 3]
In any event, where the inquiry has been directed to determining the location of the
original corner, the findings of the court, often based largely on hearsay evidence, have, as a
matter of necessity, relied on evidence of acquiescence of the parties concerned, acts of public
authorities, the location of established boundary lines, general reputation and tradition as to
where the lost monuments had been located, including the testimony of persons who saw
them when they were formerly discernible. See Clement v. Packer, 8 S. Ct. 907, 125 U. S.
309, 31 L.Ed. 721; Boardman v. The Lessees of Reed and Ford, 6 Peters 328, 8 L.Ed. 415;
Taylor v. Fomby, 116 Ala. 621, 67 Am.St.Rep. 149, 22 So. 910; Daggett v. Shaw, 5 Metcalf
223 (Mass.); Smith v. Forrest, 49 N.H. (1 Shirley) 230; Royal v. Chandler, 83 Me. 150, 21 A.
842; Rowell v. Weinemann, 119 Ia. 256, 93 N.W. 279, 97 Am.St.Rep. 310; 8 Am.Jur. 812,
Boundaries, sec. 93. We are not concerned with the sufficiency of such evidence to produce
conviction in our minds, but we are satisfied that it furnishes substantial support for the trial
court's findings.
[Headnote 4]
(4) Appellants assign as error the fact that the opinion of the trial court (to whom the case
was tried without a jury) found the Hesse corner to be the location of the corner common to
the said four sections, while the description in the findings disclose what was known as the
Gowen-Eastland corner.
73 Nev. 34, 49 (1957) Backer v. Gowen
while the description in the findings disclose what was known as the Gowen-Eastland corner.
The former is 79.45 feet and the latter 80.37 feet west of the center line of the highway. There
is also a variance in the north and south distance. If the variance is material and if the
discrepancy was error, appellants are not in position to avail themselves of it. Whichever
point is the correct one, no part of defendants' land would encroach on section 17 and no part
of plaintiffs' land in section 17 would encroach on defendants' strip in section 16 abutting the
west line of the highway.
[Headnotes 5-8]
(5) Error is assigned in admitting the map of a survey made by Van Eastland. The Eastland
survey and map were made before the litigation and before the Gowen ownership attached. It
was offered for the limited purpose of reputation as to boundary lines and was cumulative
with reference to the many other plats received. Eastland was ill and unable to testify in
person. Appellants complain that they had no opportunity to cross examine him. We think the
learned trial judge appreciated the situation, viewed the map in its proper perspective in
connection with the many other plats received in evidence and cannot be said to have based
his decision on this survey. If there is doubt as to its competency, it would not appear that the
error, if any, was prejudicial. Appellants also assign error to the admission of the state
highway acquisition map under which it purchased its right of way from Squires for the
reason that the map was dated in 1938 while the highway department's letter to Squires with
reference thereto was dated in 1926. However, the map was identified by C. C. Boyer of the
highway department as that identifying the right of way to be acquired from Squires. It was
properly admitted. Appellants also attack the admission of a map prepared by Campbell
Realty Company from information deemed by it reliable showing many parcels of property in
the district on the ground that it was incompetent for any purpose. The court intervened to
question the witness and elicited the fact that he was a licensed real estate broker and as
such was familiar with the property displayed in the proposed exhibit and that the same
portrayed the general reputation of the different parcels as shown and that he had sold
some of the parcels represented thereon.
73 Nev. 34, 50 (1957) Backer v. Gowen
intervened to question the witness and elicited the fact that he was a licensed real estate
broker and as such was familiar with the property displayed in the proposed exhibit and that
the same portrayed the general reputation of the different parcels as shown and that he had
sold some of the parcels represented thereon. The court apparently accepted the map as
cumulative evidence of general and common repute. Again we think the court accorded it
only its proper weight. The court likewise overruled an objection to the map received by
Gowen from the state highway department in connection with acquisition of Gowen property
for highway purposes. Appellants complain that it was not identified by any highway official
but was simply received by Gowen in the mail. We think, however, that its identification as a
highway acquisition map, subsequently made to the court's satisfaction, qualified it against
the attack made. Appellants complain of the cumulative effect of the four items discussed and
assert that these items must have entered strongly into the trial court's decision. However,
they formed, in our opinion, but a minor part of the total evidence submitted, were largely
cumulative and we cannot say that the same were prejudicial.
(6) Another issue in the case, to which the briefs devoted much space, was the defendants'
claim to a title by prescription. In view of our disposition of what may be considered the main
issue, it becomes unnecessary to discuss the question of defendants' asserted prescriptive title.
We have also carefully considered the many other incidental points painstakingly presented
by counsel, but they do not affect the result reached.
Affirmed with costs.
Eather and Merrill, JJ., concur.
____________
73 Nev. 51, 51 (1957) State v. City of Las Vegas
THE STATE OF NEVADA, Upon the Complaint of WALTER J. RICHARDS, Appellant, v.
THE CITY OF LAS VEGAS, a Municipal Corporation, and
S. GEORGE GILSON, Respondents.
No. 3943
March 5, 1957 307 P.2d 777
Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Action in quo warranto to try title to office of judge of municipal court of the city of Las
Vegas. The trial court ordered dismissal of the action, and an appeal was taken. The Supreme
Court, Eather, J., held that 1953 Las Vegas charter amendment, which increased municipal
judge's term to four years and provided for quadrennial elections, in lieu of biennial elections,
for such office but did not alter the 1939 date which had determined when biennial elections
would be held, evinced intent that first election for four year term should take place in 1955,
notwithstanding express provision therein that amendment should become effective upon
passage and approval.
Affirmed.
Messrs. Zenoff, Magleby & Manzonie, of Las Vegas; Harvey Dickerson, Attorney General,
for Appellant.
Howard W. Cannon, City Attorney, and Ralston O. Hawkins, Assistant City Attorney, of
Las Vegas, for Respondents.
Judges.
1953 Las Vegas charter amendment, which increased municipal judge's term to four years and provided
for quadrennial elections, in lieu of biennial elections for such office, but did not alter the 1939 date which
had determined when biennial elections would be held, evinced intent that first election for four-year term
should take place in 1955, notwithstanding express provision therein that amendment should become
effective upon passage and approval. St.1949, c. 132, sec. 4 as amended by St.1953, c. 105, sec. 2,
St.1955, c. 110, sec. 1.
73 Nev. 51, 52 (1957) State v. City of Las Vegas
OPINION
By the Court, Eather, J.:
This is an action in quo warranto to try title to the office of judge of the municipal court of
the city of Las Vegas. The lower court ordered dismissal of the action for failure of the
complaint to state a claim upon which relief could be granted. This appeal is from judgment
of dismissal.
Relator was elected to the office of municipal judge of the city of Las Vegas in May 1953.
He contends that he was then elected for a term of four years to run until May 1957. In May
1955, an election for the office was held over his protest. He ran for office in that election and
was defeated by respondent S. George Gilson. Relator here contends that the 1955 election
was unauthorized and void, there being no vacancy to be filled at that time. He seeks removal
of Gilson from office and the establishment of his own right to the office.
The sole question involved is one of statutory construction; whether, under the statute then
in effect relator's election in 1953 was for a term of four years to run from May 1953 to May
1957.
The statute involved is sec. 3 of Ch. II of the charter of the city of Las Vegas. Prior to 1953
the pertinent portion of that section read (1949 Stats. Nev., Ch. 132, sec. 4, p. 221) On the
first Tuesday after the first Monday in May 1939, and on the same day every two years
thereafter, there shall be elected at large by the qualified voters of said city a judge of the
municipal court who shall be elected and hold office for a period of two years and until his
successor is elected and qualified. On the first Tuesday after the first Monday in May 1945,
and on the same day every two years thereafter, there shall be elected at large by the qualified
voters of said city, a city attorney, who shall be elected and hold office for a period of two
years and until his successor is elected and qualified. The term of the incumbent elected in
1951 under this section thus terminated in May 1953.
In March 1953 this statutory provision was amended, effective immediately, to read as
follows (1953 Stats.
73 Nev. 51, 53 (1957) State v. City of Las Vegas
Nev. Ch. 105, sec. 2, p. 102): On the first Tuesday after the first Monday in May 1939, and
on the same day every four years thereafter, there shall be elected at large by the qualified
voters of said city a judge of the municipal court who shall be elected and hold office for a
period of four years and until his successor is elected and qualified. On the first Tuesday after
the first Monday in May 1945, and on the same day every four years thereafter, there shall be
elected at large by the qualified voters of said city, a city attorney, who shall be elected and
hold office for a period of four years and until his successor is elected and qualified.
This was the effective law at the time of relator's election in 1953. Relator emphasizes that
the amendment of 1953 extended the term of office of municipal judge from two years to four
years; that by the express provision of sec. 7 of the act it became effective upon passage and
approval. His construction of the legislative intent thus demonstrated is that the May 1953
election was for a term of four years. He contends that to hold that the election was for a term
of but two years in the face of the amendment, would clearly defeat the legislative intent.
But the statute provides a dual purpose. It fixes the length of the term of office and
necessarily specifies the quadrennial span of that term, specifically fixing the years in which
election shall be held and between which the term shall run. Relator's construction of the
statute wholly ignores the second and essential purpose.
It may be noted that in the case of both municipal judge and city attorney the reference
date by which the quadrennium of the term of office would be ascertained remains unchanged
by the 1953 amendment. By that reference date the legislature, by unavoidable implication,
has stated that election for municipal judge shall be held in the year 1955 for a term of four
years and that election for the office of city attorney shall be held in the year 1953 for a term
of four years. Acceptance of relator's construction of the statute would strike from the act the
essential quadrennial reference by means of which the span of term of office was fixed and
would substitute an unexpressed quadrennium and specification of election year contrary
to the express provisions of the act.
73 Nev. 51, 54 (1957) State v. City of Las Vegas
substitute an unexpressed quadrennium and specification of election year contrary to the
express provisions of the act. Further it may be noted that the amendment by giving to each of
these two offices its separate reference year has provided for staggered terms between the two
offices. To accept relator's construction of legislative intent would be to ignore the plausible
possibility that staggered terms were deemed advisable by the 1953 legislature.
Relator contends that the subsequent legislative history lends strength to his position. In
1955 the section was again amended to provide (1955 Stats. Nev., Ch. 110, sec. 1, P. 155):
On the first Tuesday after the first Monday in May 1945, and on the same day every four
years thereafter, there shall be elected at large by the qualified voters of said city both a judge
of the municipal court and a city attorney, who shall be elected and hold office for a period of
four years and until their successors are elected and qualified.
Relator contends that since the 1955 amendment brings the quadrennium into line with a
1953-1957 term it indicates that the 1955 legislature was but clarifying what the 1953
legislature had left in a state of some ambiguity.
We cannot accept this explanation, however. It requires us to give to the 1953 amendment
a legal significance wholly inconsistent with the 1955 amendment and also to assume that
legislative intent in both 1953 and 1955 remained constant notwithstanding different statutory
provisions.
We conclude that we must give effect to the reference date 1939 expressed in the 1953
amendment as fixing the years within which elections to the office of municipal judge are to
be held in Las Vegas and as fixing the quadrennium controlling the span of the term of such
office. It follows that the trial court acted properly in ordering dismissal of this action.
Judgment affirmed.
Badt, C. J., and Merrill, J., concur.
____________
73 Nev. 55, 55 (1957) Nevada Tax Commission v. Waldorf, Inc.
NEVADA TAX COMMISSION, Composed of Charles H. Russell, Chairman, Robert A.
Allen, Edward Arnold Settelmeyer, Norman D. Brown, Marshall William Deutsch, Horace
Gordon Lathrop, and W. S. Larsh, and the Nevada Gaming Control Board, Composed of
Robbins Cahill, William Sinnott, and Newell Hancock, Appellants, v. WALDORF, Inc., a
Nevada Corporation, Harold
L. Walter, Anna Mae Walter, I. L. Lawlor, James P. Hammonds, and
Edward L. Thomas, Respondents.
No. 3973
March 5, 1957 307 P.2d 779
Appeal from temporary injunction granted by the Second Judicial District Court, Washoe
County; A. J. Maestretti, Judge, Department No. 2.
Action to review order of Tax Commission revoking license to conduct gambling at
plaintiffs' premises. The trial court granted a temporary injunction and Tax Commission
appealed. The Supreme Court, per curiam, held that although plaintiffs had already suffered
all injury which the injunction sought to avoid when they voluntarily closed their gambling
premises and their application for renewal of a license had been denied, appeal was not moot
because injunction remained to be dissolved.
Remanded with instructions that the temporary injunction be set aside.
E. Frandsen Loomis and Springer & McKissick, of Reno, for Appellants.
F. R. Breen, of Reno, for Respondents.
Appeal and Error.
Although, pending appeal from order granting temporary injunction against enforcement of order
revoking state gambling license, licensee had ceased doing business, and city license had expired and
renewal had been denied, appeal could not be dismissed as moot because injunction remained to be
dissolved, but in view of fact that dispute had ceased to exist, judicial function would be fully discharged
by remanding with instructions that injunction be set aside.
73 Nev. 55, 56 (1957) Nevada Tax Commission v. Waldorf, Inc.
OPINION
Per Curiam:
This is an appeal taken by the Nevada Tax Commission from order of the trial court
granting to respondents as plaintiffs below a temporary injunction. The injunction restrains
the Tax Commission from enforcement of its order revoking respondents' license to conduct
gambling at their premises at North Virginia street in the city of Reno. Appellants contend
that the trial court was without authority to grant such injunction.
On July 31, 1956 the Tax Commission revoked the state gambling license theretofore
issued to respondents following a hearing at which respondents had been charged with
operating a cheating game.
On August 3, 1956 an action was brought by respondents in the court below seeking
judicial review of the action taken by the Tax Commission, attacking the Gambling Control
Act as unconstitutional, and, pending final determination, seeking an injunction against
enforcement of the revocation. In support of its prayer for injunctive relief the complaint
alleged that enforcement of the revocation would cause irreparable injury in that plaintiffs, (1)
would be deprived of profit from their gaming operations; (2) would suffer loss of clientele to
their competitors through interruption of business; (3) would suffer loss of a substantial part
of their employee organization; (4) would be subjected to the possibility of cancellation of
their lease; and (5) would, in all probability, forfeit their city gambling license since their
premises are located in an area not zoned for gambling, and their local license has been
permitted to continue solely for the reason that gambling had been conducted on the premises
prior to the present zoning ordinance. Upon the showing made by the complaint an order was
issued by the trial court restraining appellants, pendente lite, from enforcing their revocation.
From that order this appeal is taken. The appeal was briefed and argued and on December 17,
1956 submitted for the decision of this court.
73 Nev. 55, 57 (1957) Nevada Tax Commission v. Waldorf, Inc.
Subsequent events caused this court to inquire into the possibility that the issues presented
by the appeal had become moot. The Waldorf club has closed its doors and ceased doing
business. Its city license has expired and an application for renewal has been denied by the
city council as to games, although granted as to slot machines. An order to the litigants to
show cause why the appeal should not be dismissed as moot was entered by this court, and
upon that order a hearing was had February 26, 1957.
The Tax Commission opposed dismissal. It pointed out that the city had granted a license
to operate slot machines on the premises. The Tax Commission has revoked the state license
to that effect. The right of respondents to operate slot machines on the premises under the
injunction, therefore, still exists.
The hearing also brought out, however, that all justification for the granting of the
injunction has ceased to exist; that all injury which the injunction sought to avoid has already
been suffered by respondents through their own action in closing their doors; that to continue
the injunction under these circumstances would be improper. Counsel for respondents
conceded that this is true and advised that a dissolving of the injunction would not be
opposed.
It is, therefore, clear that although the appeal itself may not be subject to dismissal as moot
since the injunction remains to be dissolved, the dispute which brought the matter here has
ceased to exist. The essential legal issues presented by the appealthose relating to the
power of the trial court to issue an injunction under the circumstanceshave ceased to be
disputed issues.
The Tax Commission contends that these questions of law are of public concern and that
settlement should be had in the public interest. This court has ever been reluctant to depart
from the judicial fieldthat of resolving disputesand to enter the advisory field through the
announcing of law unrelated to any pending dispute. Support for our position receives
practical illustration from the fact that an appeal now pending before this court and set for
hearing this month may well involve an active dispute upon the precise questions
presented by this appeal.
73 Nev. 55, 58 (1957) Nevada Tax Commission v. Waldorf, Inc.
court and set for hearing this month may well involve an active dispute upon the precise
questions presented by this appeal. This fact also serves to reduce the force of the
commission's contention that public interest demands that a settlement of the questions of law
be had in these proceedings.
We conclude that our judicial function in this matter will be fully discharged by our
providing for prompt termination of the injunction. Ordinarily we should accomplish our
purpose by remanding the matter to the trial court for further hearing upon the events
occurring since the injunction was issued. Cf. Ripps v. Las Vegas, 72 Nev. 135, 297 P.2d
258. In view of the concessions of respondents made upon our hearing, however, the
imposing of a further hearing upon the trial court would appear wholly unwarranted.
Remanded with instructions that the temporary injunction be set aside.
____________
73 Nev. 58, 58 (1957) Earl v. Las Vegas Auto Parts
ROY EARL and EDWIN J. DOTSON, Appellants, v. LAS VEGAS AUTO PARTS,
Inc. and HARRY E. CLAIBORNE, Respondents.
No. 3929
March 7, 1957 307 P.2d 781
Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Action on an attorney's lien. The district court granted summary judgment for defendants,
and plaintiffs appealed. The Supreme Court, Merrill, J., held that district court had
jurisdiction over subject matter and parties for the purpose of fixing compensation for
services rendered by original attorneys for plaintiff in pending action, in which substitution of
attorneys had been made, without the necessity of formally making such attorneys parties to
action.
Affirmed.
73 Nev. 58, 59 (1957) Earl v. Las Vegas Auto Parts
George E. Marshall, Edward J. Dotson and Roy Earl, of Las Vegas, for Appellants.
Morse, Graves and Compton and C. Norman Cornwall, of Las Vegas, for Respondent Las
Vegas Auto Parts, Inc.
Harry E. Claiborne, of Las Vegas, for Respondent Harry E. Claiborne.
1. Attorney and Client.
By reason of its control over its processes and the parties, court has the power, in action in which services
are rendered, to enforce or determine the validity of lien claimed by attorney for such services, and to
protect attorney against any attempt improperly to defeat such lien. NRS sec. 18.010.
2. Attorney and Client.
As a condition to granting substitution of attorneys, court may protect original attorney by appropriate
orders relating to his compensation.
3. Attorney and Client.
In personal injury action, court had jurisdiction over the subject matter of charging lien claimed by
attorneys for plaintiff for services performed in connection with such action. NRS sec. 18.010.
4. Attorney and Client.
Through attorney's appearance as counsel of record for client in pending action and court's control over
its processes, officers, and parties to action, court acquires incidental jurisdiction to resolve disputes
between attorney and client relating to the litigation, the resolution of which is necessary to continuation
and final disposition of the cause.
5. Attorney and Client.
On motion for substitution of attorneys filed by plaintiff in action for personal injuries, district court in
which action was pending had jurisdiction over original attorneys of record for plaintiff for the purpose of
fixing compensation for services rendered by such attorneys in the action, without the necessity of formally
making such attorneys parties to the action. NRS sec. 18.010.
6. Attorney and Client.
As counsel of record for plaintiff in pending action, attorney is already before the court in which such
action is pending as an officer of court and is personally subject to court's control in such capacity.
7. Judgment.
Order of district court, from which no appeal was taken, fixing compensation for services rendered by
original attorneys of record for plaintiff in personal injury action in which substitution of attorneys had
been made, was conclusive and could not be attacked or disregarded in subsequent action to
enforce attorney's lien based on written contract of employment.
73 Nev. 58, 60 (1957) Earl v. Las Vegas Auto Parts
not be attacked or disregarded in subsequent action to enforce attorney's lien based on written contract of
employment. NRS sec. 18.010.
OPINION
By the Court, Merrill, J.:
This is an action upon an attorney's lien. The question involved upon the appeal is
whether, when substitution of attorneys is made in a pending action, the court in that action
has authority to fix the fees of the original attorneys of record, where such attorneys have not
formally intervened or been made parties to the action for that purpose.
Appellants are attorneys at law practicing in Las Vegas, Nevada. On April 9, 1953 they
entered into a written contract with one Hapner for the performance of legal services in
connection with a cause of action against respondent Las Vegas Auto Parts for personal
injuries suffered by Hapner. Under that contract appellants were to receive a fee for their
services equal to one half of all sums recovered after commencement of suit, by virtue of
settlement or judgment. Thereafter suit was brought by Hapner against Las Vegas Auto Parts,
appellants acting as his attorneys.
Prior to trial a motion for substitution of attorneys was made by Hapner. He asked that
respondent Claiborne be substituted as his attorney in place of appellants; that all files and
records pertaining to the case in the possession of appellants and not personal to them be
turned over to Claiborne and that the court fix the amount of fees due by Hapner to
appellants. The motion was heard by the trial court on April 1, 1954, appellants being present
in court. The court ordered the substitution of attorneys and the delivery to Claiborne of all
records and files in appellants' possession pertaining to the case and which were not personal
to appellants. The order also provided, Further ordered that the matter determining the
amount of compensation will be deferred until the outcome of the litigation. The court retains
jurisdiction over this motion solely for the purpose of determining compensation of Edwin J.
73 Nev. 58, 61 (1957) Earl v. Las Vegas Auto Parts
determining compensation of Edwin J. Dotson and Roy Earl upon termination of this action
either through settlement or through litigation.
On August 17, 1954 appellants filed in the action a notice of attorney's lien as follows:
Notice is hereby given that the undersigned attorneys claim a lien for their services upon the
cause of action in the above entitled cause and any judgment rendered therein and any
settlement made by and between the parties.
On September 3, 1954 a settlement of the dispute between Hapner and Las Vegas Auto
Parts was reached and a consent judgment against the company was entered in the sum of
$25,000.
On September 25, 1954 the matter of the determination of appellants' compensation,
theretofore deferred by the trial court, was called up for disposition, appellants again being
present in court. The court ordered that the compensation of appellants be fixed at $2,500.
On October 6, 1954 respondent Claiborne on behalf of Hapner filed an acknowledgment
of satisfaction of judgment. The record discloses that payment of judgment by Las Vegas
Auto Parts was accomplished by issuing two checks, one to appellants for $2,500, one to
Hapner and Claiborne for $22,500. The check tendered to appellants was rejected by them.
No appeal was taken by appellants from order of the trial court fixing their compensation,
nor was review sought by certiorari. Instead the present action against Las Vegas Auto Parts,
Inc. and Claiborne was brought by appellants January 20, 1955, seeking judgment in the sum
of $12,500 upon their attorney's lien. They contend that the trial court in the earlier action was
without authority to fix their compensation; that having had notice of their claim of attorney's
lien neither Claiborne nor Las Vegas Auto Parts could properly disburse the adjudicated
$25,000 in disregard of the lien as claimed. The situation with respect to Hapner does not
clearly appear. He was named as a party to the present action, but apparently was never
served with summons.
The court below, upon motion of respondents, granted summary judgment in their favor
upon the ground of res judicata.
73 Nev. 58, 62 (1957) Earl v. Las Vegas Auto Parts
res judicata. From that judgment the present appeal has been taken.
An attorney's charging lien is provided by statute in this state. Section 18.010 NRS in part
provides: The compensation of an attorney and counselor for his services is governed by
agreement, express or implied, which is not restrained by law. From the commencement of an
action, or the service of an answer containing a counterclaim, the attorney who appears for a
party has a lien upon his client's cause of action or counterclaim which attaches to a verdict,
report, decision or judgment in his client's favor and the proceeds thereof in whosesoever
hands they may come, and cannot be affected by any settlement between the parties before or
after judgment.
No procedure is provided for the judicial establishment and enforcement of such lien,
however. We are not here concerned with the question whether recovery upon the lien may
properly be had in a collateral suit. See: Morse v. District Court, 65 Nev. 275, 195 P.2d 199,
3 A.L.R.2d 136. In the light of the trial court's ruling of res judicata the sole questions before
us are whether the principal action was a proper vehicle for establishment and enforcement of
lien and, if so, whether the attorney must formally be made a party of record.
[Headnotes 1, 2]
The first question is well settled. There is no doubt, however, of the power of the court, in
the action in which the services are rendered, by means of its control over its processes and
the parties, to enforce or determine the validity of the attorney's claimed lien, by some
appropriate proceeding, and to protect the attorney against any attempt improperly to defeat
the lien,
* * *. 1 Bancroft's Code Practice, 92, sec. 73, The Attorney. See: Ann. 93 A.L.R. 697. It is
well recognized that as a condition to granting substitution of attorneys the court may protect
the original attorney by appropriate orders relative to his compensation. See 7 C.J.S. 954, et
seq., sec. 122, Attorney and Client. Appellants themselves appear to have recognized this
proposition by the filing of their notice of lien in the principal action.
73 Nev. 58, 63 (1957) Earl v. Las Vegas Auto Parts
[Headnote 3]
We conclude that the court in the principal action had jurisdiction over the subject matter
of the charging lien for services performed in connection with such action.
[Headnotes 4-6]
Upon the second questionas to the necessity for making the attorney a party to the
principal actionwe conclude that the court's control over its processes, parties and officers
gives it jurisdiction not only over the subject matter of the dispute but over the parties to it as
well. Through the attorney's appearance as counsel of record for his client the court of
necessity acquires incidental jurisdiction to resolve disputes between attorney and client
relating to the litigation before the court, the resolving of which is necessary to the
continuation of the cause and to its final disposition. Clearly this is so as to substitution of
attorneys. (See: The Flush, C.C.A. 2, 277 F. 25, holding such an order appealable by the
dismissed attorney.) The interests of the attorney are directly affected by a court order
terminating his relationship with his client. Yet it is not suggested here that this could only be
accomplished by formally summoning him before the court as a party defendant and
acquiring personal jurisdiction over him by such means. As counsel of record he is already
before the court as its officer and is personally subject to its control in that capacity. Accord:
Doggett v. Deauville Corp., C.C.A. 5, 148 F.2d 881.
[Headnote 7]
Since the court in the earlier action had jurisdiction over the subject matter and the parties
to the dispute, it had power to act in the establishment and enforcement of appellants'
charging lien. This being so, the action taken by that court is res judicata and may neither be
attacked nor disregarded in these proceedings. The court below was not in error in granting
summary judgment in this matter.
Affirmed.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 64, 64 (1957) Lucey v. First National Bank
DOROTHY LUCEY, Appellant, v. FIRST NATIONAL BANK
OF NEVADA, Respondent.
No. 3939
March 7, 1957 307 P.2d 774
Appeal from judgment of Eighth Judicial District Court, Clark County; A. S. Henderson,
Judge, Department No. 2.
Action for personal injuries sustained by invitee of a bank in its parking lot, when invitee
walked behind automobile driven by a bank employee in the course of his employment and
was struck as employee backed his automobile. From a judgment of the trial court for bank,
invitee appealed. The Supreme Court, Badt, C. J., held that where invitee, without knowledge
of employee, walked behind his automobile knowing that he was backing his automobile or
about to do so, evidence supported finding of invitee's negligence and that it was proximate
cause of injury.
Affirmed.
(Rehearing denied April 1, 1957.)
Harry E. Claiborne, of Las Vegas, for Appellant.
Goldwater & Singleton, of Las Vegas, for Respondent.
1. Automobiles.
In action for personal injuries sustained on bank's parking lot by invitee who, without knowledge of
bank's employee, walked behind his automobile, knowing that he was backing his automobile or about to
do so, evidence supported finding of invitee's negligence and that it was proximate cause of injury.
2. New Trial.
In action for personal injuries sustained on bank's parking lot by invitee who, knowing that bank
employee was about to back his automobile walked behind his automobile without knowledge of employee,
where invitee claimed newly discovered evidence in form of a witness not available at trial, but it appeared
that testimony of new witness would simply corroborate that of invitee whose account of accident was a
physical impossibility, denial of motion for new trial on ground of newly discovered evidence was not an
abuse of discretion.
3. New Trial.
A motion for new trial on ground of newly discovered evidence is addressed to the sound discretion of
the trial court.
73 Nev. 64, 65 (1957) Lucey v. First National Bank
OPINION
By the Court, Badt, C. J.:
This is an appeal by the plaintiff from a judgment for defendant in a personal injury suit
tried to the court without a jury. Appellant contends that under the admitted facts the court
erred as a matter of law (1) in holding that respondent's agent was not negligent in his
operation of the car in question, (2) in holding that plaintiff was guilty of negligence and (3)
that her injuries were proximately caused thereby. The appeal, however, involves essentially a
question of fact and we have concluded that the finding of appellant's negligence and that it
was a proximate cause of the injury finds substantial support in the evidence.
It appears that the defendant bank maintained a parking lot 50 feet wide next to its
premises in Las Vegas for the use of its customers. No plat of this parking lot is in evidence,
but a rough sketch of the lot was drawn on the trial court's blackboard, and counsel drew a
similar sketch at the argument before us. Counsel for both parties accepted it. It shows a lot
adjoining the north side wall of the bank with some marked parking stalls on either side, a
free space in the center, and a walkway along the bank wall between two and one-half and
three feet wide, edged with a 6x6 timber which serves both to keep the cars on a uniform line
and to separate the walkway from the parking area. The bank fronts east on Fifth Street and
there is entrance to the parking lot both on such street and on the alley that abuts the bank and
the parking lot on the west. The lines marking off the stalls are at a slight angle from the bank
wall and also from the opposite side of the lot. That is, they approach them almost at a right
angle.
Donald Brown, an employee of the bank, had entered the parking lot in his car and parked
his car against the walkway in the first stall on the east and had then entered the bank. Later
in the morning, engaged on bank business, he left the bank, entered his car, looked to the
right and left, started his engine, and without a warning from his horn and without looking
to the rear either directly or through his rear vision mirror, started to back out in order to
leave the lot by way of the Fifth Street exit.
73 Nev. 64, 66 (1957) Lucey v. First National Bank
from his horn and without looking to the rear either directly or through his rear vision mirror,
started to back out in order to leave the lot by way of the Fifth Street exit. He backed about
three feet, heard a cry, stopped immediately, got out, and found that the right side of his rear
bumper had struck plaintiff just below the knee. Plaintiff had her one-year old baby in her
arms. Walking through the parking lot's open center space she had been on her way to her
own car, likewise parked by the north wall of the bank, with one or two or three empty stalls
between Brown's car and hers. She had been in the bank on business, and we may assume that
her status was that of an invitee on the parking lot. She testified that she was struck as she
was approaching the front left door of her car and at a point four or five feet from it. Brown
knew that pedestrians were accustomed to walk in the open space of the lot.
We do not find it necessary to discuss appellant's contention that under these
circumstances it was error for the court to find that defendant's employee was not negligent.
We may indeed assume, for the purposes of this opinion, that he was negligent. After finding
that Brown was not negligent in the operation of his car, the court found further: 4. That on
August 6, 1952, Donald Brown, acting for the defendant as aforesaid, left the First National
Bank and proceeded to enter his automobile after examining the premises and looking to his
right and left to determine the presence of anyone, and then and there backed his automobile a
distance of three feet from its position in the parking lot owned by the defendant; that
theretofore, the plaintiff had knowledge of and observed said Donald Brown and had moved
into such a position so as to be in the rear of the automobile of Donald Brown as he
proceeded to back said automobile.
[Headnote 1]
7. It is true that plaintiff, Dorothy Lucey, was careless and negligent in the manner in
which she conducted herself on said parking lot so as to place herself in a position of peril in
walking behind the automobile of Donald Brown.
73 Nev. 64, 67 (1957) Lucey v. First National Bank
position of peril in walking behind the automobile of Donald Brown.
8. It is true that, notwithstanding this knowledge on the part of the plaintiff Dorothy
Lucey, she voluntarily placed herself in a position of peril without the knowledge of said
Donald Brown and after said Donald Brown had acted prudently and reasonably to determine
if any persons were on the premises before operating his vehicle.
9. The Court finds that the injuries of the plaintiff, Dorothy Lucey, resulting from said
accident were approximately caused by her own carelessness and negligence in so placing
herself with knowledge then and there of the facts as hereinbefore found.
10. The Court further finds that whatever injuries or damages were sustained by plaintiff,
Dorothy Lucey, were caused in whole or in part or were contributed to by reason of the
negligence of the plaintiff, Dorothy Lucey.
If these findings that the plaintiff was negligent and that her negligence was the proximate
cause of the injuries are supported by substantial evidence, the judgment must be affirmed.
Evidence which the court was entitled to believe, and which it obviously did believe, was to
the following effect. Appellant saw Brown walk out of the bank and walked out directly
behind him. She saw Brown get into his car and heard him start his motor. Instead of using
the walkway or otherwise avoiding going into an area of obvious peril, she walked behind his
car. Though he backed out at moderate speed, proceeded only three feet, and stopped
immediately when he heard appellant scream, she had not had sufficient time to clear his car.
The court in its decision said: The evidence further shows that the defendant's employee,
Brown, came out of the bank, looked in the direction of his automobile, got into his
automobile, looked to the right, and looked to the left, and saw no one, and proceeded to back
his car, and backed it about three feet when he heard the scream. When he heard a scream he
got out of the car and found that he had hit the plaintiff, that his car had hit the plaintiff.
73 Nev. 64, 68 (1957) Lucey v. First National Bank
got out of the car and found that he had hit the plaintiff, that his car had hit the plaintiff.
The testimony further shows that the plaintiff must have come out of the bank and
proceeded to go to her automobile after the employee Brown had come out of the bank. In
other words, the plaintiff followed the employee Brown and she, instead of walking down the
path-way proceeded to walk behind the parked automobiles to get to her car.
She testified that at the time of the accident she was standing along side of her car, parked
near the rear of the parking lot. From a physical standpoint it would be impossible for Brown
to go three feet and back the car and strike the person of the plaintiff near her car in the
manner in which the evidence shows the car was situated. In order to do so he would have
had to back his car out in a northerly direction and turned it so it would then proceed in a
westerly direction and then proceed in a southerly direction to hit the plaintiff standing near
her automobile. In other words, he would almost have to make a half circle.
The best testimony is he only proceeded about three feet and immediately stopped when
he heard her scream, and that is the most logical because if he intended to leave the position
in which his automobile was parked and go out on business he would go out on Fifth Street,
and so he would only have to back out in a northerly direction and proceed forward with his
car out on Fifth Street. * * * [I]t seems to me that the plaintiff acted without due caution
when she walked behind this car and was struck by the back end of the car by Mr. Brown in
the manner in which, in my opinion, the evidence shows the accident occurred.
On motion for new trial on the ground of newly discovered evidence, appellant's counsel
stated to the court: At [the time of trial] we only had two witnesses and it was one word
against the other. That apparently was the situation. As we noted in the recent case of Heric
v. Christensen, 73 Nev. 6, 306 P.2d 769, the court apparently rejected plaintiff's version of
what had caused the accident and adopted defendant's version.
73 Nev. 64, 69 (1957) Lucey v. First National Bank
apparently rejected plaintiff's version of what had caused the accident and adopted
defendant's version.
[Headnotes 2, 3]
Appellant also assigns error in the denial of her motion for new trial made on the ground
of newly discovered evidence. More precisely, she claims the final discovery of a witness
whose presence was not available at the trial although efforts had been made to locate him. It
is apparent that the court regarded that the testimony of such witness would simply have been
in corroboration of the plaintiff's testimony as to how the accident occurred, and thus simply
cumulative in this respect, whereas in his findings and decision he found and decided that it
was a physical impossibility for the accident to have occurred in the manner asserted by
plaintiff. It cannot be said that the testimony of the newly found witness was such as to make
it probable that a different result would be obtained in another trial or that the new evidence
was such as to be of a decisive and conclusive character or at least such as to render a
different result reasonably certain. Whise v. Whise, 36 Nev. 16, 24, 131 P. 967, 969, 44
L.R.A., N.S., 689. The motion was addressed to the sound discretion of the court, Bramlette
v. Titus, 70 Nev. 305, 267 P.2d 620, and we see in its denial no abuse of discretion.
There being substantial evidence to support the court's finding that plaintiff's negligence
was the proximate cause of the accident and no error appearing, the judgment is affirmed with
costs.
Eather and Merrill, JJ., concur.
____________
73 Nev. 70, 70 (1957) Crosby v. Nevada Industrial Commission
CHAUNCEY A. CROSBY, Appellant, v. NEVADA INDUSTRIAL
COMMISSION, Respondent.
No. 3919
March 22, 1957 308 P.2d 60
Appeal from judgment of Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge, Department No. 1.
Workmen's compensation proceeding. The district court entered judgment finding
claimant to have 60 percent temporary total disability and entitled to award of $4,790 in lump
sum, and claimant appealed. The Supreme Court, Badt, C. J., held that, where claimant had
been subjected to two unsuccessful fusion attempts following removal of ruptured
intervertebral disc, and third such attempt would have been an unusual medical procedure,
fixing of the 60 percent disability on basis of a bodily disability and without consideration of
inability to find work, incapacity for work, and lack of earning power was error and that it
would be for the district court to say to what extent, if any, claimant's earnings as pastor and
from fees for performance of marriages served to reduce the disability.
Affirmed in part. Reversed in part.
(Rehearing denied April 23, 1957.)
Charlotte Hunter and Sidney Fox and Margaret Faires Baily, all of Reno, for Appellant.
Richard R. Hanna, of Carson City, for Respondent.
1. Workmen's Compensation.
In workmen's compensation proceeding, evidence, which revealed that claimant had undergone two
unsuccessful fusion attempts after removal of ruptured intervertebral disc, sustained Industrial
Commission's termination of claimant's temporary total disability status. NRS 616.025, 616.515,
616.575, 616.605, 616.625.
2. Workmen's Compensation.
Where workmen's compensation claimant had been subjected to two unsuccessful fusion attempts
following removal of ruptured intervertebral disc, and third such attempt would have been an unusual
medical procedure, fixing of a 60 percent permanent partial disability on basis of a bodily disability and
without consideration of inability to find work, incapacity for work, and lack of earning power
was error.
73 Nev. 70, 71 (1957) Crosby v. Nevada Industrial Commission
incapacity for work, and lack of earning power was error. NRS 616.025, 616.515, 616.575,
616.605, 616.625.
3. Workmen's Compensation.
In workmen's compensation proceeding, the Supreme Court would not disturb district court's finding if
there was substantial support therefor in the record.
4. Workmen's Compensation.
Where workmen's compensation claimant had earned some money as pastor of his church and his fees for
performance of marriage ceremonies, it would be for the district court, not the Supreme Court, to say to
what extent, if any, claimant's earnings as pastor and from the fees served to reduce what otherwise
appeared to be a total disability arising from accident and resulting from failure of Industrial Commission's
treatment to remedy and cure claimant's condition.
OPINION
By the Court, Badt, C. J.:
[Headnotes 1, 2]
This is an appeal in an industrial insurance case, in which the district court, in appellant's
action following the findings and orders of the respondent Commission and the Medical
Referee Board, in effect terminated appellant's status of temporary total disability, gave him a
permanent partial disability rating and fixed such permanent partial disability at 60 percent.
The parties are in agreement that but two issues are involved in this appeal, (1) whether or not
plaintiff should remain on temporary status and be afforded further medical treatment,
particularly a third operation, and (2) whether the court was in error in fixing his permanent
partial disability rating at 60 percent rather than, as contended by appellant, as a total
permanent disability. Thus we see that, despite the extensive argument of appellant
concerning certain procedural aspects of the trial before the district court and despite
extensive exposition of the parties in their written briefs and oral argument of their respective
constructions of sundry sections of the Nevada Industrial Insurance Act, we are confronted in
the main with questions of fact. This in turn confines our consideration to the determination
of the question as to whether the two findings attacked by the appellant find substantial
support in the evidence. Our conclusion is that the Commission's termination of appellant's
temporary total disability status and the court's finding that such termination was proper
are substantially supported and that the judgment in this respect must be affirmed.
73 Nev. 70, 72 (1957) Crosby v. Nevada Industrial Commission
is that the Commission's termination of appellant's temporary total disability status and the
court's finding that such termination was proper are substantially supported and that the
judgment in this respect must be affirmed. We have, however, further concluded that the
fixing of his permanent status as one of 60 percent disability was too narrowly based upon his
bodily disability without respect to his incapacity to work or to find employment and that this
phase of the case must, for such reason, be remanded for further consideration, findings and
judgment.
On March 15, 1950 appellant suffered a back injury while working as a shipping and
receiving clerk for Gray Reid Wright Company at Reno. Attempts to correct the injury by
therapy treatments from Dr. Walker failed, and Dr. James Thom, on behalf of the Nevada
Industrial Commission sent him to Dr. Ernest Mack, a neuro-surgeon who placed him in a
back brace. On July 11, 1951, Dr. John C. Becker, an orthopedist, was associated. Dr. Becker
operated on June 23, 1951 and removed a ruptured intervertebral disc, and, with Dr. Mack
assisting, attempted to do a fusion, with appellant remaining in the hospital until August 1951
and later being treated as an outpatient until 1952, when, still suffering great pain and
incapacitated, and it developing that the fusion had been unsuccessful, a second fusion was
attempted in March 1952. He was again released in July 1952 and received attention and
treatment as an outpatient. The second fusion operation likewise proved unsuccessful and the
possibility of a third operation was discussed. On June 1, 1953 Dr. Thom, chief medical
advisor of the Commission, recommended that appellant's temporary total disability status be
terminated and that he be given a permanent partial disability rating. The Commission
followed the recommendation and offered a settlement on the basis of a 50 percent permanent
partial disability. Appellant rejected the offer and the matter was referred to the Medical
Referee Board, which increased the partial disability rating to 60 percent. Appellant rejected
this offer and in January 1954 commenced the instant action in the district court.
73 Nev. 70, 73 (1957) Crosby v. Nevada Industrial Commission
NRS 616.025 defines accident benefits as used in the Nevada Industrial Insurance Act to
mean medical, surgical, hospital, or other treatment, nursing, medicine, medical, and surgical
supplies, crutches and apparatus, including artificial members. Section 616.515, being sec.
58(a) of the act reads: Every injured employee within the provisions of this chapter shall be
entitled to receive, and shall receive promptly, such accident benefits as may reasonably be
required at the time of the injury and within 6 months thereafter, which may be further
extended by the commission for an additional period of 1 year. NRS 616.575 provides that
disability caused by an injury to the spine resulting in permanent and complete paralysis of
both legs or arms, or one leg or one arm, shall be deemed total and permanent. * * * The
enumeration * * * is not exclusive, and in all other cases permanent total disability shall be
determined by the commission in accordance with the facts presented. NRS 616.605
provides for determination of the percentage of disability to the total disability and how it
should be computed. It further provides: In determining the percentage of disability,
consideration shall be given, among other things, to any previous disability, the occupation of
the injured employee, the nature of the physical injury, and the age of the employee at the
time of the injury. * * * NRS 616.625 permits the Commission, in its discretion, to allow the
conversion of the compensation into a lump sum payment.
Using the method prescribed by the act and under the Commission's rules and regulations,
the Commission converted the compensation, under its finding of 60 percent disability, into a
lump sum settlement of $4790, which the appellant rejected.
[Headnote 3]
1. We deal first with the court's approval of the Commission's determination that the
period of plaintiff's temporary total disability was at an end and the court's finding that the
Commission was not obligated to continue to furnish additional hospital, medical, surgical
and other benefits. Dr. Becker and Dr. Mack were called as witnesses by the plaintiff, and Dr.
Thom by the defendant.
73 Nev. 70, 74 (1957) Crosby v. Nevada Industrial Commission
defendant. All of these witnesses testified at considerable length on both direct and cross
examination, and we are concerned with the question as to whether the court was justified in
concluding that appellant's condition could not reasonably be expected to yield to further
operation or treatment after the failure of the second fusion operation. Dr. Thom, when asked
to explain his opinion as to the possibility of improvement by a third operation, testified in
part: I have some very definite opinions and they are based on the observation of this 12
years, plus the observation of my own patients throughout some 35 years, that we almost
never do a third stabilization operation. Just recently I had to have a third stabilization
operation done upon one patient who had complete lack of continuity of the spine. Now that's
a most unusual situation. That's the only one in my 35 years experience where I on my own
patients asked the neuro-surgeon and the orthopedist to do a disc and a third fusion for me.
This represents my observation * * * that during my 12 years with the Industrial Commission
we have had more than 300 back operations, discs and stabilization * * * and as I recall only
one of those has been done a third time * * * the chances of a third operation being successful
are slight * * * There is a great possibility that a third operation might further disable Mr.
Crosby or increase his permanent disability * * * he was treated to a place where he became
stationary and nobody had anything more to offer in the way of active treatment at that time.
When I say treatment, I mean active surgical treatment. Dr. Mack testified: The thought of
a third operation on Mr. Crosby to the surgeon is devastating. Mr. Crosby is a very difficult
man to work on because of his stature and his size. [240 pounds] He also presents a
tremendously complicated technical procedure. He also presents to us who workobviously
when we undertake one of these things it is with the thought that we will ultimately be
successful and have a well patient or a reasonably well one, and we must approach this
problem with a full understanding that we have only got awe'll say less than a 50 percent
chance of being successful.
73 Nev. 70, 75 (1957) Crosby v. Nevada Industrial Commission
chance of being successful. That's why we would not approach itthere's an old saying about
this kind of patient in medical practice, that this is the kind of patient to send to your worst
competitor. It is true that Dr. Becker discussed a newer type of procedure involving bone
block between the vertebral bodies in which successful results had been obtained, and it is
true that Dr. Mack testified to cases on record where people had more than two fusion
attempts with an ultimate successful result, and that he had told appellant that it was not
unreasonable to try again and it is true that Dr. Thom frankly conceded that the Commission
did not think that appellant was well, or we'd never have given him a partial, permanent
disability rating. It is likewise true that Dr. Becker and Dr. Mack accorded a 50 percent
chance of success from a third operation. With whatever persuasiveness these concessions
may have been addressed to the trial court, there was committed to that court the duty of
arriving at a conclusion. In this case, as in all others, appellant's contentions must yield to the
rule that we shall not disturb the court's finding where it finds substantial support in the
record. Its finding of termination of status of total temporary disability was in recognition of
the rule cited by both parties. Temporary as distinguished from permanent disability has
been defined as a condition that exists until the injured workman is as far restored as the
permanent character of the injuries will permit. 58 A.J. 779, Workmen's Compensation, Sec.
283. We must then reject appellant's assignment of error on this point.
2. It has been noted that the Commission first fixed appellant's status as that of total
temporary disability. Upon terminating his temporary status the Commission also changed his
disability from total disability to 60 percent partial disability. It was noted in argument that
our statute, above quoted, deems an injury to the spine resulting in permanent and complete
paralysis of both legs or arms to be total and permanent. The implication of this argument
was that the present injury to appellant's spine had not so resulted, and could not, therefore,
be considered total.
73 Nev. 70, 76 (1957) Crosby v. Nevada Industrial Commission
be considered total. The statute, however, goes on to provide that the enumeration given is
not taken as exclusive and that in all other cases permanent total disability shall be
determined by the Commission in accordance with the facts presented, and that in
determining the percentage of disability, consideration be given to the occupation of the
injured employee and to the nature of the physical injury. The opinion of the learned trial
judge notes that the Commission fixed the percentage of disability upon a bodily basis,
notes the plaintiff's contention that such basis is unwarranted but feels that the Commission
took into consideration the facts mentioned in the statute and referred to above. After then
expressing the opinion that the award should stand because of the court's feeling that the
Commission did take into consideration the other elements set forth in the statute, the court
then proceeds to its own finding approving the 60 percent disability as found, because there
is testimony that plaintiff has worked and there is some medical testimony that he could
perform some work. In our opinion this is not a finding of the court that there is a 60 percent
disability and is not such a finding as would support a percentage of disability at any specific
point between 60 percent and 100 percent. The actual finding of the court in this regard is
simply that the Medical Board determined the percentage of permanent partial disability
sustained by the plaintiff as aforesaid to be 60 percent upon a body basis; that the plaintiff
sustained a permanent partial disability of 60 percent upon a body basis * * *. The record is
replete with testimony as to plaintiff's inability to do any work or to find any employment and
nothing appears to the contrary. Dr. Mack testified: [H]e's got a tremendous disability * * *
his status physically at this time [time of the trial] compared to his status at the time of the
first operation is relatively unchanged. Dr. Becker testified that appellant's disability
continued (after the second and last unsuccessful fusion operation) as to such acts as getting
in and out of a car, doing odd jobs around the family home, and these are not any labor
demanding jobs.
73 Nev. 70, 77 (1957) Crosby v. Nevada Industrial Commission
not any labor demanding jobs. * * * He further stated: If his disability is 50 to 60 percent,
he certainly cannot do labor. It is true that Dr. Thom, operating under what he says is the
practice of the insurance companies, in concluding that the case should be finaled, did
indeed conclude that appellant's permanent disability was partial. It is significant, however,
that he qualified his use of the term partial. I had concluded that he had a high degree of
partial permanent disability.
In an early annotation in 33 A.L.R. 115 under title Workmen's Compensation: Statutory
phrase incapacity to work' or the like, as including inability to obtain work following an
injury, are listed a great many cases in the American and English courts in which such terms
as incapacity for work, disability, power to earn, inability to procure work etc. are
defined and explained. The actual words used in the different statutory provisions do indeed
vary, but the conclusions reached are clear irrespective of the particular words used in the
statutes. This is illustrated by the remark contained in the opinion in Kuhnle v. Department of
Labor and Industries, 15 Wash.2d 427, 120 P.2d 1003, 1006: The courts have found great
difficulty in defining what is meant by incapacity to perform any work at any gainful
occupation, and equivalent expressions used in workmen's compensation acts. They agree
that they do not mean that the workman must be absolutely helpless or physically broken and
wrecked for all purposes except merely to live. * * * The purpose of the act is to insure
against loss of wage earning capacity. A workman's wage earning capacity may be completely
destroyed, though he still has some capacity to perform minor tasks. To quote from the
opinion of the Supreme Court of Minnesota in Green v. Schmahl, 202 Minn. 254, 256, 278
NW. 157, 158: Furthermore, and important, sporadic competence, occasional, intermittent,
and much limited capacity to earn something somehow, does not reduce what is otherwise
total to a partial disability.' (Emphasis supplied.) It is unnecessary even to cite the cases in
which the loss of an arm or the loss of a leg or the disfigurement of the face, resulting in
inability to obtain employment, has been regarded as total disability, despite the fact that
total bodily disability was by no means present.
73 Nev. 70, 78 (1957) Crosby v. Nevada Industrial Commission
the disfigurement of the face, resulting in inability to obtain employment, has been regarded
as total disability, despite the fact that total bodily disability was by no means present. With
respect to the many cases cited in the annotation mentioned, which considered the statutory
phrase incapacity for work or the like, it should be noted that the great majority do indeed
consider the particular phrase incapacity for work. Several, however, discuss the statutory
word disability, which is the word used in our own statute. If there is a distinction, it is a
very fine one. Webster's New International Dictionary defines disability, among other things,
as absence of competent physical fitness, and defines incapacity as lack of physical power,
inability, incapability. For the purposes of this case at least, we may say that the several
expressions used are interchangeable, and that the court's finding and conclusion (following
the finding and conclusion of the Commission) of a 60 percent disability, restricted as they
appear to have been to a bodily disability, and without consideration of inability to find work,
incapacity for work, lack of earning power, was error.
[Headnote 4]
It appears that appellant earned some money as pastor of his church and as fees for
performance of marriage ceremonies. It is not for this court to say to what extent, if at all (see
rule as to total disability despite occasional intermittent and limited earnings as laid down in
Kuhnle v. Department of Labor and Industries, 15 Wash. 2d 427, 120 P.2d 1003; Gramolini's
Case, 328 Mass. 86, 101 N.E. 2d 750; New York Indemnity Co. v. Industrial Commission, 86
Colo. 364, 281 P. 740; Trinity Universal Ins. Co. v. Rose, Tex. Civ. App., 217 S.W. 2d 425;
Ball v. Hunt, 81 King's Bench Div. (N.S.) 782, and similar cases), appellant's earnings as
pastor of his church and from marriage fees served to reduce what appears otherwise to be a
total disability resulting from the accident and resulting from the failure of the Commission's
treatment to remedy and cure his condition.
73 Nev. 70, 79 (1957) Crosby v. Nevada Industrial Commission
That function must be performed by the district court.
That part of the judgment finding that his status of temporary total disability had
terminated is affirmed. That part of the judgment allowing him the lump sum of $4790 on a
basis of 60 percent disability is reversed, and the case is remanded to the district court for
further proceedings to determine the percentage of his disability consistently with this
opinion, and, using the same lump sum basis, to enter judgment accordingly. Appellant will
recover his costs on this appeal.
Eather and Merrill, JJ., concur.
____________
73 Nev. 79, 79 (1957) Depaoli v. Ernst
HARRY A. DEPAOLI, Executive Director of Nevada Employment Security Department,
Appellant, v. MELVIN H. ERNST, Et Al., Respondents.
No. 3966
April 1, 1957 309 P.2d 363
Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,
Department No. 2.
Action to review decision of board of review denying unemployment compensation
benefits. The trial court rendered judgment awarding unemployment compensation, and
executive director of employment security department appealed. The Supreme Court, Eather,
J., held that unemployment of members of local union as a result of strike, called by other
locals in aid of joint negotiations between representatives of all such unions and employers'
associations for industrywide contract, was due to a labor dispute within NRS sec. 612.395,
providing for disqualification for unemployment benefits with respect to unemployment due
to a labor dispute in active progress at place of last employment.
Reversed.
73 Nev. 79, 80 (1957) Depaoli v. Ernst
Vargas, Dillon & Bartlett, and Alex A. Garroway, of Reno, for Appellant.
T. L. Withers, of Reno, for Respondents.
1. Social Security and Public Welfare.
Where a general lockout follows strike against some of many employers, who are negotiating jointly with
union for industrywide contract, resulting unemployment, regardless of whether it is attributable to strike or
lockout, is due to a labor dispute within disqualification provision of Unemployment Compensation Act.
NRS sec. 612.395.
2. Social Security and Public Welfare.
Where strike at terminals of long line trucking firms, called by local unions in aid of joint negotiations
with truckers' associations for industrywide contract, resulted in unemployment of truck drivers who were
members of another local also represented at such negotiations, the unemployment, whether due to lockout
or lack of work, was due to a labor dispute in progress at drivers' places of employment within
Unemployment Compensation Act provision for disqualification for benefits with respect to unemployment
due to a labor dispute in active progress at place of last employment. NRS sec. 612.395.
OPINION
By the Court, Eather, J.:
This appeal is taken by the executive director of the State Employment Security Division
from a judicial determination that respondents are entitled to unemployment compensation.
The period of unemployment, approximately three weeks, occurred in 1955 during the course
of a labor dispute between respondents and their employers. The question involved in this
appeal is whether respondents were by statute disqualified from receiving compensation by
virtue of the fact that their unemployment was due to the labor dispute in which they were
engaged. The executive director contends that they were. Respondents, with whom the
district court agreed, contend that they were not.
The proceedings thus far had are in accordance with the provisions of the Unemployment
Compensation Act. Respondents' claims for benefits received an adverse determination by
the executive director.
73 Nev. 79, 81 (1957) Depaoli v. Ernst
determination by the executive director. The determination was appealed and hearings were
had before an appeal referee, at which extensive testimony was taken. The decision of the
appeal referee affirmed the determination of the executive director and an appeal was taken to
the board of review which affirmed the decision denying benefits. Court review was then
sought by the commencement of this action in the lower court. With respect to the court
review, sec. 612.530, NRS, reads in part: In any judicial proceedings under this section, the
finding of the board of review as to the facts, if supported by evidence and in the absence of
fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of
law.
Upon the issues presented by this appeal the pertinent section of the Unemployment
Compensation Act is sec. 612.395, NRS. It provides that one is disqualified for benefits for
any week with respect to which the executive director finds that his total or partial
unemployment is due to a labor dispute in active progress at the factory, establishment, or
other premises at which he is or was last employed.
Respondents are all members of Local Number 533 of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America. They are what is known as
long line drivers, operating trucking units on interstate routes which run from California
through Nevada to the east. Their conditions of employment are fixed by contract with their
employers, known as the Long line and turn around collective bargaining agreement. Terms
of the agreement, in major respects at least, are the same for all long line employers whose
employees are members of Local 533.
Prior to May 1, 1955 the major terms of the Nevada contracts having to do with wages,
working conditions and employees' benefits were negotiated periodically in Salt Lake City
between the union and all interested employers in the intermountain area, being members of
the Intermountain Truck Operators Association. The terms thus agreed upon were
incorporated into the separate agreement signed by Local 533 with each Nevada employer.
73 Nev. 79, 82 (1957) Depaoli v. Ernst
separate agreement signed by Local 533 with each Nevada employer.
The Nevada long line employers were for the most part, as interstate carriers, also
members of the California Trucking Association. Their contracts with California locals were,
prior to May 1, 1955, negotiated periodically in California in common with other California
long line employers. Due to its close connection with California locals, through interstate
routes in which all were commonly interested, Local 533 was a party to the California line
agreement.
The annual expiration date of long line collective bargaining contracts in the western states
is May 1. Prior to May 1, 1955, pursuant to the terms of their contracts, Local 533 gave notice
to the Nevada employers of their desire to negotiate new terms relative to wages, pension
provisions, working conditions and other employee benefits. Similar notice was given by
other locals throughout the western states. In April 1955 at least two meetings between
representatives of the Local 533 and Nevada employers were held in Reno. No agreement
was reached locally.
Looking toward a blanket agreement to apply throughout the 11 western states,
negotiations were then had in California. The Nevada employers were represented there.
Interested locals of the union were represented by a negotiating committee on which A. O.
May, secretary-treasurer of Local 533, served as a member.
Local 533 voted to support the negotiating committee's action to obtain a uniform contract.
The business agent of the local, Norris Bertrand, testified: There was a meeting held in
which the line drivers voted a full vote of confidence to Brother May * * * and the
negotiating committee for the purpose of negotiating a satisfactory agreement, and with
authority, if it was necessary, to call a strike.
On May 19, 1955, no agreement having been reached, certain California locals struck three
Nevada employers at their California terminals. This strike resulted in all respondents being
laid off work. The record is not too clear and findings of the board of review and of the lower
court are not in harmony as to the direct cause of the layoff.
73 Nev. 79, 83 (1957) Depaoli v. Ernst
lower court are not in harmony as to the direct cause of the layoff. Certain employers testified
and the board of review found that the layoff was the result of employer lockout, the
employers regarding the strike of California locals as a strike against all employers engaged
in the joint negotiation effort. Both May and Bertrand testified that the union regarded the
layoff as a lockout.
On the other hand certain employers testified and the lower court found that the layoff was
due solely to the fact that the California strike prevented the flow of truck traffic through
Nevada since substantially all such traffic originates in California; that the layoff was due
simply to the fact that there was no work for the Nevada drivers.
From the record it would appear that the layoff was due in part to lockout and in part to
lack of work. In either event the layoff clearly resulted from the strike in California.
On June 10, 1955 an agreement was reached in California between the employer
representatives and the union bargaining committee. The California strike was terminated. On
June 12, 1955, following a meeting in Reno between representatives of the employers and
Local 533, long line truck traffic commenced once again to flow through Nevada and
respondents' unemployment ceased. Local contracts had not been executed but it was
understood that the agreements reached in California would be incorporated into all local
contracts, with the mechanics of carrying out such agreements remaining to be worked out.
As Mr. May testified, the local and the Nevada employers would negotiate on the basis of
the uniform agreement which had been arrived at throughout the industry. Strike benefits
were paid by the international union to respondents for the period of their unemployment.
Whether the layoff in Nevada was due to lockout or to lack of work would appear to be of
no consequence. The question is whether the lockout or lack of work, which was the cause of
unemployment, was due to the labor dispute then in existence between Local 533 and the
Nevada employers.
73 Nev. 79, 84 (1957) Depaoli v. Ernst
the Nevada employers. Respondents emphasize that Local 533 was not on strike; that the
record demonstrates that all respondents were available for work and willing to work,
notwithstanding the fact that their contracts were still being negotiated and that no agreement
had been reached. They insist that they had no control over the California locals that were
responsible for the strike. They contend that the record thus conclusively demonstrates that
their unemployment was not due to the fact that their particular local dispute with the Nevada
employers had not been settled.
But the record demonstrates that their dispute was no longer a local dispute. It had become
an area-wide dispute in common with the locals of 11 western states who were represented in
the joint negotiations being carried on in California. The board of review found as fact:
Local 533 joined with other locals of the international brotherhood * * * to carry on joint
negotiations with the employers who were members of one or more trucking associations
which represented the employers during negotiations.
We must accept, then, that the California negotiations were for the industry as a whole in
the 11 western states and were carried on to the end that certain basic differences should be
uniformly resolved throughout the entire area and thus avoid the necessity for regional or
local meetings for settlement of its basic problems.
Action by certain interested locals during the course of such industry-wide negotiations
has been recognized in California and Utah to be tantamount to concerted action by and on
behalf of all participating locals, McKinley v. California Employment Stabilization
Commission, 34 Cal.2d 239, 209 P.2d 602; Olof Nelson Construction Company v. Industrial
Commission, 121 Utah 525, 243 P.2d 951. As stated in the McKinley case [34 Cal.2d 239,
209 P.2d 605], The selection of a certain plant or plants for a shutdown by strike at a
particular time was a mere matter of strategy in the conduct of the trade dispute which equally
involved all of the bakeries and their employees. This, in effect, applied the union's economic
sanctions against each employer and brought about the unemployment of all its members.
73 Nev. 79, 85 (1957) Depaoli v. Ernst
unemployment of all its members. Had the association acted first by closing down one of the
members' plants and the union followed with a strike against all of the remaining plants, it
would be equally clear that the volitional act causing unemployment was the initial shutdown.
Either the union or an individual employer, at any time, could have broken off joint
negotiations and bargained with its employees on an individual basis. But that course was not
taken. At no time did the union purport to be directing any action solely against the Butter
Cream plant; instead, the union continued throughout to deal directly with the association for
the purpose of obtaining a new master contract. To say, therefore, that the act of striking the
one plant did not shut down work in other plants of the association which were subject to the
labor negotiations for the purpose of obtaining a master contract is wholly unrealistic.
As stated in the Olof Nelson Construction Company case [121 Utah 525, 243 P.2d 956],
There is no doubt that the union's objective in striking the two jobs was to apply economic
pressure to assist the bargaining representatives of the Six Basic Crafts in obtaining an
industry-wide wage raise. The unions were successful in this strategy. * * * There is no
dispute that the economic sanction of the A. F. of L. in this case was directed against the
entire employer association. The strike was called for and on behalf of every employee
covered by the agreement. It therefore directly involved all these claimants, at each particular
place of employment at which they were last employed. The strike was fomented by
claimants through their duly authorized union representatives. They are members of the group
which gained a raise in wages because of the strike and are parties to the scheme or plan to
foment it. Therefore they are not entitled to unemployment benefits. * * *
[Headnote 1]
The courts in those two cases were concerned as to whether when a general lockout
followed a strike against other employers, all of whom were negotiating jointly, the
unemployment is to be attributed to the strike or to the lockout.
73 Nev. 79, 86 (1957) Depaoli v. Ernst
the unemployment is to be attributed to the strike or to the lockout. Under the statutes in those
states such a distinction is material. Such is not the case in Nevada. Section 5 of our statute,
hereinbefore quoted, is similar to the Illinois statute. In Buchholz v. Cummins, 6 Ill.2d 382,
128 N.E.2d 900, 902, this provision was discussed. The court stated, A few states such as
California incorporate a test of voluntariness disqualifying only those who leave their work'
because of a labor dispute. * * * However, sec. 7(d) [of the Illinois Act, S.H.A. ch. 48, sec.
223 (d)] specifically disqualifies any individual for benefits for any week in which it is found
that his unemployment is due to a stoppage of work which exists because of a labor dispute at
the establishment at which he is or was last employed. By this provision the Illinois
legislature adopted the policy that the State shall not, by payment of unemployment
compensation, assist one party to a labor dispute, regardless of fault; and that the state in
cases of industrial strike ought not to take sides and place blame. This provision was designed
to maintain the neutrality of the State in labor disputes. This labor dispute clause is a
departure from the general idea of relief from involuntary unemployment. The question of
voluntariness in such a case is not the test. * * * If a labor dispute results in the closing of a
plant or factory, the statute does not place the blame, but considers the resulting
unemployment as caused by a labor dispute. * * *
[Headnote 2]
We hold then, that the dispute in aid of which the California strike was called was the
dispute of Local 533; that the lockout or layoff of respondents was a direct consequence of
that dispute; that the unemployment of respondents was due to the labor dispute in active
progress at their respective places of employment. They are, then, disqualified from benefits
under sec. 612.395, NRS, of the Unemployment Compensation Act.
Judgment of the lower court is reversed. The decision of the board of review is affirmed.
Badt, C. J., and Merrill, J., concur.
____________
73 Nev. 87, 87 (1957) Rocky Mountain Powder Co. v. Hamlin
ROCKY MOUNTAIN POWDER COMPANY, a Nevada Corporation, Appellant,
v. EMMETT M. HAMLIN, Respondent.
No. 3938
April 23, 1957 310 P.2d 404
Appeal from the Second Judicial District Court, Washoe County; Gordon W. Rice, Judge,
Department No. 3.
Action to recover on a note. The trial court entered judgment for plaintiff, and defendant
appealed. The Supreme Court, Gregory, District Judge, held that note issued by corporation to
a director pursuant to resolution adopted by board of directors after full disclosure of the
circumstances, determining reasonable value of services rendered by payee in preserving
physical assets of corporation for more than 12 years prior to election to board and directing
issuance of note therefor, was not void or voidable on ground of breach of fiduciary
responsibility of payee as a director of corporation.
Judgment affirmed.
(Rehearing denied May 20, 1957.)
William J. Raggio, of Reno, for Appellant.
Ernest S. Brown, of Reno, for Respondent.
1. Bills and Notes.
As between maker and payee, absence or failure of consideration is available as a defense. NRS
92.035.
2. Corporations.
An officer or director cannot lawfully be compensated by board of directors for gratuitous services within
scope of his official duty rendered to corporation during his term as a director, in absence of express
prearrangement for such compensation.
3. Corporations.
An employee other than officer or director can lawfully be reasonably compensated by action of board of
directors for services rendered to corporation.
4. Corporations.
Even a director may recover compensation from corporation for services outside the scope of his official
duties, if an implied promise can be inferred from the circumstances of the case.
73 Nev. 87, 88 (1957) Rocky Mountain Powder Co. v. Hamlin
5. Master and Servant.
Sales manager, being neither an officer nor director, was entitled to compensation from corporation for
services rendered at request of an officer and director in preserving physical assets of corporation for more
than 12 years during suspension of activities, particularly where evidence was sufficient to show
prearrangement and implied promise required in case of services rendered by an officer or director.
6. Corporations.
Equity will set aside a bargain between director and corporation, where such bargain was made otherwise
than at arm's length and with full disclosure of the circumstances.
7. Corporations.
Note issued by corporation to a director pursuant to resolution adopted by board of directors after full
disclosure of the circumstances, determining reasonable value of services rendered by payee in preserving
physical assets of corporation for more than 12 years before his election to board and directing issuance of
note therefor, was not void or voidable on ground of breach of fiduciary responsibility of payee as a
director of corporation, in absence of any evidence of fraud or want of good faith.
8. Corporations.
Where board of directors, by resolution adopted after full disclosure of the circumstances, determined
reasonable value of services rendered by a director in preserving physical assets of corporation for more
than 12 years prior to election to the board and directed issuance of note for such services to director,
payee was not required to establish reasonable value of such services in order to recover on note and
recovery thereon was not limited to the reasonable value of such services.
9. Limitation of Actions.
Payments made by corporation on valid note issued to director for services rendered were lawful, and
effectively tolled the running of statute of limitations against cause of action on note.
10. Limitation of Actions.
Action on note, commenced less than four years after last payment was made on principal of note, was
not barred by limitations.
OPINION
By the Court, Gregory, D. J.:
On March 16, 1954 the respondent commenced action in the trial court, seeking recovery
upon a promissory note executed and delivered to him by the appellant corporation on June 1,
1945 in the principal sum of $11,625.
73 Nev. 87, 89 (1957) Rocky Mountain Powder Co. v. Hamlin
Payments had been made on the principal sum amounting to $1,527.45 as recently as June 1,
1950, and on November 25, 1955 the District Court entered judgment in favor of the
respondent for $10,097.25 and interest. The appeal is from that judgment, appellant assigning
as error:
1. That there was complete failure of consideration for the note, the payee and respondent
having been a director of appellant corporation at the time of execution.
2. That respondent, as such director, violated his fiduciary responsibility to appellant
corporation in obtaining issuance of this note to himself.
3. That as such a director, the respondent was an interested party in obtaining the promise
of payment to himself, which resulted in an act either void or voidable.
4. That even in the event a promise to pay did exist, the trial court should have based
judgment on the value of the services, but did not do so.
5. That recovery on the note, assuming its validity, is barred by the statute of limitations.
A brief review of the pertinent facts is necessary to understanding of the questions
presented. The appellant corporation, Rocky Mountain Powder Co., was chartered as a
Nevada corporation prior to 1932. It had acquired a manufacturing plant and equipment in
Spanish Springs Valley in Washoe County. In May of 1932, the corporation found it
necessary to suspend all operations. At that time the respondent Hamlin was employed by the
appellant as sales manager and general consultant, and was a stockholder, but so far as the
record shows, was neither an officer nor a director of appellant.
When the plant and operation closed down, according to the undisputed testimony of
respondent, one B. G. McBride, then an officer and director of appellant corporation, in a
conversation with respondent, asked the respondent to protect and safeguard the assets of the
corporation until new financing could be obtained. His exact language was received by way
of the respondent's deposition, without objection, as follows: "If you {referring to the
respondent) will continue on and try to preserve the physical assets of this company, I
will continue to endeavor to get finance to eventually start up.
73 Nev. 87, 90 (1957) Rocky Mountain Powder Co. v. Hamlin
exact language was received by way of the respondent's deposition, without objection, as
follows: If you (referring to the respondent) will continue on and try to preserve the physical
assets of this company, I will continue to endeavor to get finance to eventually start up. I don't
know when, but we will eventually start.
The respondent, for the next 12 years and 11 months, did safeguard the assets of the
corporation, by personal attention and the engagement of sundry watchmen, and attended to
the payment of taxes. In 1945 he caused the reactivation and reinstatement of appellant
corporation and at a special stockholders' meeting on May 17, 1945 was elected to the board
of directors. On June 1, 1945 a resolution was adopted by that board, commending his
services to the corporation, determining those services to be reasonably worth the sum of
$75 per month for a period of 12 years and 11 months, and directing the president and
secretary to make, execute and deliver to the respondent the promissory note of the
corporation in the sum of $11,625 which was done.
[Headnote 1]
As between the maker and the payee of a promissory note, absence or failure of
consideration is available as a defense. NRS 92.035 (Sec. 4497 NCL 1929). Dixon v. Miller,
43 Nev. 280, 184 P. 926. Appellant urges that since the respondent was an officer and
director of the appellant corporation at the time of issuance of the note in question, he was not
entitled to compensation for his services, claiming that those services were within the scope
of his duties as a director, and further that compensation could not be granted for past
services unless there had been an express agreement or arrangement for compensation prior to
the performance of the services.
[Headnote 2]
The law is well established that an officer or director of a corporation cannot lawfully be
compensated by the board of directors for gratuitous services within the scope of his official
duty rendered to the corporation during his term as a director, in the absence of some
express prearrangement for such compensation.
73 Nev. 87, 91 (1957) Rocky Mountain Powder Co. v. Hamlin
scope of his official duty rendered to the corporation during his term as a director, in the
absence of some express prearrangement for such compensation. 13 Am.Jur. Corporations,
Sec. 1027, p. 975. Fletcher Cyc. Corporation (Perm. Ed.) Vol. 5, p. 577.
[Headnote 3]
Equally well established, however, is the rule that an employee other than an officer or
director can lawfully be reasonably compensated for services rendered to the corporation, by
action of the board. 13 Am.Jur. Corporations, Sec. 1028, p. 976.
[Headnote 4]
As to services which are outside the scope of the official duties, even a director may
recover compensation from the corporation if an implied promise can be inferred from the
circumstances of the case. Dunlap v. Montana-Tonopah Mining Co., C.C., 192 F. 714, Id., 9
Cir., 196 F. 612.
[Headnote 5]
Here it is obvious that respondent was neither an officer nor a director of the appellant
corporation either at the time he embarked upon his years of service to it or during the time
his services were rendered. Even had he been such there is sufficient evidence to support the
then requisite prearrangement and implied promise. He was asked to preserve the assets as
best he could, and the record indicates that he did so. All that remained was to fix his
compensation.
[Headnotes 6, 7]
2, 3. The appellant urges that respondent, as a director, violated his fiduciary obligation to
the corporation in obtaining the issuance of this note to himself; that he was an interested
party in obtaining this promise of payment; and for those reasons that the note in question
was either void or voidable. It is true that equity will set aside a bargain between a director
and his corporation which is made otherwise than at arm's length and with full disclosure of
the circumstances.
73 Nev. 87, 92 (1957) Rocky Mountain Powder Co. v. Hamlin
length and with full disclosure of the circumstances. Pepper v. Litton, 308 U. S. 295, 84 L.Ed.
281, 60 S.Ct. 238. Yet here the record shows that there had been such full disclosure at the
meeting at which the note was authorized on June 1, 1945. There is no evidence of fraud, nor
was any evidence presented from which it might reasonably be inferred that this transaction
was entered into without the good faith of both parties.
[Headnote 8]
4. It is next suggested that in the event there existed an implied promise, the trial court
should have looked beyond the note and determined the reasonable value of the services
rendered, and that the burden of establishing that value was upon the respondent. With this
contention we cannot agree. There is ample evidence in the record to support the findings of
the trial court. Gascue v. Saralegui L. & L. Co., 70 Nev. 83, 255 P.2d 335.
[Headnotes 9, 10]
5. So also as to the claim that the action was barred by lapse of time. The obligation being
valid in its inception it was thereafter the duty of the directors of appellant to cause the
corporation to pay that obligation. The payments made, then, were lawful and effectively
tolled the statute, and the lower court so found.
The judgment is affirmed with costs.
Eather and Merrill, JJ., concur.
(Badt, C. J., having disqualified himself, the Governor designated Hon. Frank B. Gregory,
Judge of the First Judicial District Court, to sit in his place and stead.)
____________
73 Nev. 93, 93 (1957) Ansolabehere v. Laborde
JOHN ANSOLABEHERE, Appellant, v. ST. JOHN
LABORDE, Respondent.
No. 3955
April 25, 1957 310 P.2d 842
Appeal from judgment of Third Judicial District Court, Lander County; Hon. Gordon W.
Rice, Presiding Judge.
Suit was brought for an injunction to enjoin defendant from trespassing on and interfering
with water rights of plaintiff and from in any manner obstructing or preventing the exercise of
plaintiff's water rights. The lower court entered judgment and an appeal was taken. The
Supreme Court, Badt, C. J., held that when the United States, as owner of public lands,
entered on the control and administration thereof through act of Congress known as the
Taylor Grazing Act, those features of the 1925 Nevada Stockwatering Act having to do with
the control of grazing rights or privileges thereon were superseded and rendered ineffective.
Reversed.
[Certiorari denied by United States Supreme Court October 14, 1957. No. 302. 355 U.S.
833 (1)]
Orville R. Wilson, of Elko for Appellant.
Bradley & Grubic and John S. Belford, of Reno, for Respondent.
Public Lands.
When the United States, as owner of public lands, entered on the control and administration thereof
through act of Congress known as the Taylor Grazing Act, those features of the 1925 Nevada
Stockwatering Act having to do with the control of grazing rights or privileges thereon were superseded
and rendered ineffective. Taylor Grazing Act. sec. 1 et seq. 43 U.S.C.A. sec. 315 et seq.; NRS 533.485
to 533.510, 533.490, 533.495.
OPINION
By the Court, Badt, C. J.:
This appeal requires our approval of one, and our rejection of the other, of the two
diametrically opposed concepts advanced by the respective parties as to the jurisdiction
and power of the state to regulate the grazing use of those parts of the public domain
available and accessible to the livestock of owners of stockwatering rights thereon.
73 Nev. 93, 94 (1957) Ansolabehere v. Laborde
concepts advanced by the respective parties as to the jurisdiction and power of the state to
regulate the grazing use of those parts of the public domain available and accessible to the
livestock of owners of stockwatering rights thereon. We have concluded that those features of
the state statute governing the grazing use of the public lands were superseded and rendered
ineffective by the enactment by Congress of what is known as the Taylor Grazing Act, 43
U.S.C.A., sec. 315 et seq.
Plaintiff's complaint is patently and directly predicated upon what is known as the 1925
stockwatering act. NRS 533.485-533.510, 1925 Stats. 348. The act is entitled An Act
relating to the use of water for watering livestock, the acquisition and proof of the right to
such use, making certain actions a misdemeanor and prescribing a penalty therefor. The
preamble recites the great importance to the state of the use of water for watering range
livestock; the fact that the value of such water right is directly dependent upon the availability
to the owner of such right, of the grazing use of the public range in the vicinity of his
watering place; and the fact that the existence in separate owners of two or more rights for
watering range livestock in the same vicinity tends to produce controversies concerning the
use of the public range that often result in breaches of the peace. Public range is defined to
include all lands belonging to the United States on which livestock are permitted to graze,
including lands in the national forests and reserved for other purposes. Range livestock are
defined to be stock subsisting chiefly or entirely on the public range during the season when
they are being watered there. NRS 533.490 declares such use to be a beneficial use, and
subsection 2 thereof provides that it shall be a sufficient measure of the quantity of the water
to specify the number and kind of animals to be watered. NRS 533.495 reads as follows:
Whenever one or more persons shall have a subsisting right to water range livestock at a
particular place and in sufficient numbers to utilize substantially all that portion of the public
range readily available to livestock watering at that place, no appropriation of water from
either the same or a different source shall subsequently be made by another for the
purpose of watering range livestock in such numbers and in such proximity to the
watering place first mentioned as to enable the proposed appropriator to deprive the
owner or owners of the existing water right of the grazing use of such portion of the
public range, or substantially to interfere with or impair the value of such grazing use and
of such water right."
73 Nev. 93, 95 (1957) Ansolabehere v. Laborde
either the same or a different source shall subsequently be made by another for the purpose of
watering range livestock in such numbers and in such proximity to the watering place first
mentioned as to enable the proposed appropriator to deprive the owner or owners of the
existing water right of the grazing use of such portion of the public range, or substantially to
interfere with or impair the value of such grazing use and of such water right.
NRS 533.505 reads in part as follows: Any person who, without the right so to do, shall,
on two or more separate days during any season, water more than 50 head of livestock at the
watering place at which another shall have a subsisting right to water more than 50 head of
livestock, or within 3 miles of such place, with intent to graze the livestock so watered on the
portion of the public range readily accessible to livestock watering at the watering place of
such other person, shall be guilty of a misdemeanor, and on conviction thereof shall be
punished by a fine not exceeding $500, or by imprisonment in the county jail not exceeding 6
months, or by both fine and imprisonment.
Plaintiff alleged that he owned and was entitled to the use for stockwatering purposes of
water rights described as follows: (1) Upper Laborde Spring, Certificate No. 1004, Year of
Priority1917, Sufficient water to water 2,500 sheep from April 1st to October 1st of each
year. (2) Lower Laborde Spring, Certificate No. 1004, Year of Priority1917, Sufficient
water to water 2,500 sheep from April 1st to October 1st of each year. (3) Unknown Name
Spring, Proof No. 01719, Year of Priority 1890, Sufficient water to water 2,500 sheep and
200 cattle from April 1st to October 1st of each year. (4) China Springs, Proof No. 01149,
Year of Priority 1882, Sufficient water to water 2,500 sheep from April 1st to October 1st of
each year. It is important to note the allegation as to sufficient water for an aggregate of
10,000 sheep and 200 cattle.
He alleged that these stockwatering rights were established on the open, public range in an
area embracing Township 21 North, Range 44 East, M.D.B. & M., that he had a current,
valid Taylor grazing permit "and sufficient livestock to fill said permit, to utilize
substantially all that portion of the public range readily available to livestock watering at
the aforesaid stockwatering places."
73 Nev. 93, 96 (1957) Ansolabehere v. Laborde
he had a current, valid Taylor grazing permit and sufficient livestock to fill said permit, to
utilize substantially all that portion of the public range readily available to livestock watering
at the aforesaid stockwatering places. His ownership of the described water rights, that they
were upon the public domain and that he had a Taylor grazing permit were not denied.
Plaintiff then alleged that defendant, without ownership of stockwatering rights in the area,
violated the terms of the stockwatering act by watering on more than one occasion in 1954
more than 50 head of his livestock without the right to do so, or within three miles of each of
the aforementioned stockwatering places owned and controlled by plaintiff; that defendant
threatened to continue to trespass on plaintiff's aforementioned water rights to plaintiff's
irreparable damage etc. and prayed for an injunction enjoining defendant from trespassing
upon and interfering with plaintiff's water rights as hereinabove described and from in any
manner obstructing or preventing the exercise of plaintiff's rights as set forth hereinbefore.
As affirmative defenses, defendant alleged his ownership of four ranches in the county
situated in Nevada Grazing District No. 6, Bureau of Land Management, Department of
Interior, with grazing rights to run 1,166 head of cattle on the public domain pursuant to
action of the Bureau under the Taylor Grazing Act and that he had been issued a permit to run
350 head of cattle from the Caton ranch and 150 head of cattle on the Silver Creek Drainage
as a drift; that Silver Creek Drainage is the area in which plaintiff's said springs are situated
and that defendant's cattle could not be grazed in the Silver Creek Drainage without using
said springs; that if deprived of the use of said springs he would suffer irreparable damage
and would have no area in which to run approximately 500 head of cattle; that by an
injunction of his use of the springs the court would be controlling the public domain owned
and controlled by the federal government. As a separate affirmative defense he alleged that as
the waters and range area were entirely within Nevada Grazing District No.
73 Nev. 93, 97 (1957) Ansolabehere v. Laborde
area were entirely within Nevada Grazing District No. 6, Bureau of Land Management,
Department of the Interior, the court had no jurisdiction over the subject matter of the action
or to grant the relief demanded. He further pleaded that he and his predecessors since 1900
had run 500 head of cattle on the Silver Creek Drainage, watering them at the springs claimed
by plaintiff, had made concurrent use of the said springs and had a vested right to the use
thereof. He pleaded separately a prescriptive right to use the springs. His answer contained no
prayer for relief.
His defense of the lack of the court's jurisdiction is predicated upon the contention that
when the United States, the owner of the said public lands, entered upon the control and
administration thereof through the act of Congress known as the Taylor Grazing Act, those
features of the 1925 stockwatering act having to do with the control of grazing rights or
privileges thereon were superseded and rendered ineffective. This contention must be
sustained.
That act of Congress is entitled An act to stop injury to the public grazing lands by
preventing overgrazing and soil deterioration, to provide for their orderly use, improvement,
and development, to stabilize the livestock industry dependent upon the public range, and for
other purposes. 43 U.S.C.A. sec. 315, 48 U.S.Stats. 1269, approved June 28, 1934. Section 1
provides that in order to promote the highest use of the public lands the Secretary of the
Interior is authorized in his discretion to establish grazing districts. It also provides: Nothing
in this Act shall be construed in any way to diminish, restrict, or impair any right which has
been heretofore or may be hereafter initiated under existing law validly affecting the public
lands * * *. Section 2 requires the Secretary to make provision for the protection,
administration, regulation and improvement of grazing districts thus created and to make such
rules and regulations and establish such service as may be necessary to accomplish the
purposes of the act and to insure the objects of such grazing districts, namely, to regulate
their occupancy and use and to provide for the orderly use, improvement and
development of the range.
73 Nev. 93, 98 (1957) Ansolabehere v. Laborde
their occupancy and use and to provide for the orderly use, improvement and development of
the range. Section 3 authorizes the Secretary to issue grazing permits to graze livestock on
such districts upon the payment of reasonable fees. It then contains the following proviso:
That nothing in this Act shall be construed or administered in any way to diminish or impair
any right to the possession and use of water for mining, agriculture, manufacturing, or other
purposes which has heretofore vested or accrued under existing law validly affecting the
public lands or which may be hereafter initiated or acquired and maintained in accordance
with such law. Section 16 of the act reads as follows: Nothing in this Act shall be construed
as restricting the respective States from enforcing any and all statutes enacted for police
regulation, nor shall the police power of the respective States be, by this Act, impaired or
restricted, and all laws heretofore enacted by the respective States or any thereof, or that may
hereafter be enacted as regards public health or public welfare, shall at all times be in full
force and effect: Provided, however, That nothing in this section shall be construed as
limiting or restricting the power and authority of the United States.
1

In the 30-odd years during which the Taylor Grazing Act has been in effect there has been
no decision of any of the state courts of last resort or of any federal court which has been
called to our attention determining the question raised by this appeal. Its necessary
determination, however, has been foreshadowed many times. This court in In re Calvo, 50
Nev. 125, 253 P. 671, upheld our 1925 stockwatering law against the contention that the same
encroached upon the power of the federal government to dispose of and make needful rules
and regulations respecting the grazing lands belonging to the United States, and against the
contention that the legislation attempted to fence off certain lands by statute and repudiated
the state's contract with the federal government forever to disclaim all right to the
unappropriated public lands lying within its borders.
____________________

1
Under 1946 Reorg. Plan No. 3, section 403, effective July 16, 1946, 11 F.R. 7876, 60 Stat. 1100, 5
U.S.C.A., following sec. 133y16, the functions of the grazing service and its director and assistant directors
were transferred to the Bureau of Land Management.
73 Nev. 93, 99 (1957) Ansolabehere v. Laborde
and repudiated the state's contract with the federal government forever to disclaim all right to
the unappropriated public lands lying within its borders. In so doing, it relied upon numerous
cases sustaining the right of the state in an exercise of its police powers to make reasonable
regulations as to the grazing of livestock, including the following: Pyramid L. & S. Co. v.
Pierce, 30 Nev. 237, 95 P. 210 (statute making it unlawful to herd sheep within one mile of a
bona fide ranchhouse); Sifers v. Johnson, 7 Idaho 798, 65 P. 709, 54 L.R.A. 785, 97
Am.St.Rep. 271 (statute prohibiting grazing of sheep on public domain within two miles of a
residence); Sweet v. Ballentyne, 8 Idaho 431, 69 P. 995 (same statute); Walker v. Bacon, 11
Idaho 127, 81 P. 155, 114 Am.St.Rep. 262 (same statute), affirmed in Bacon v. Walker, 204
U.S. 311, 27 S.Ct. 289, 51 L.Ed. 499; Omaechevarria v. State of Idaho, 246 U.S. 343, 38
S.Ct. 323, 62 L.Ed. 763 (statute prohibiting grazing of sheep on a cattle range). See also
numerous other cases cited in the Calvo case, supra.
The important point to note, as specifically declared in many of the cases, and as implied
in others, is the expression of the court upholding the police power of the state, extending
over the federal public domain, at least when there is no legislation by Congress on the
subject. Bacon v. Walker, supra. Or as expressed in McKelvey v. United States, 260 U.S.
353, 43 S.Ct. 132, 135, 67 L.Ed. 301: It also is settled that the states may prescribe police
regulations applicable to public land areas, so long as the regulations are not arbitrary or
inconsistent with applicable congressional enactments. But most convincing, and almost
prophetic in view of its utterance eight years before enactment of the Taylor Grazing Act, is
the statement of this court in In re Calvo, supra, in upholding the validity of the 1925
stockwatering act: All that the state seeks to do pursuant to the statute is to exercise police
regulations over the public domain. This it has a right to do, as we have shown. Furthermore,
any time the federal government * * * in any * * * manner undertakes to exercise control
over it, the statute in question becomes inoperative insofar as it conflicts with the
authority of the federal government."
73 Nev. 93, 100 (1957) Ansolabehere v. Laborde
control over it, the statute in question becomes inoperative insofar as it conflicts with the
authority of the federal government. In 1936 this view was affirmed in Itcaina v. Marble, 56
Nev. 420, 55 P.2d 625, referring to the sufferance of the federal government or to its
implied license under which the grazing of the public lands was permitted. This court there
said: It is not a right that the government of the United States has conferred, and these public
ranges may at any time be withdrawn from such use or the use permitted only under
government regulations, as in the case of forest reserves. Buford v. Houtz, 133 U.S. 320, 10
S.Ct. 305, 33 L.Ed. 618; Omaechevarria v. Idaho, 246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763;
United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563; In re Calvo, 50 Nev.
125, 253 P. 671. However, in the absence of government regulations, the state may regulate
the use of unreserved and unappropriated public domain within its borders.
Applying these holdings to the instant case we find (1) that appellant was grazing his
livestock in the Silver Creek Drainage area pursuant to a permit granted by the Bureau of
Land Management under rules and regulations promulgated by it under authority of the
Taylor Grazing Act, and in so doing, was watering his cattle at the springs in question; (2)
that respondent's complaint filed in the district court did not allege, nor did that court find,
nor would such finding have been supported by the record, that respondent's livestock utilized
or consumed all of the waters of said springs; (3) that the court did not find, nor would the
record have supported such finding, that the watering of appellant's cattle at said springs
would have deprived respondent's sheep of any water necessary for them to consume; (4) that
there was, accordingly, surplus water in said springs over and above the stockwatering needs
of respondent's sheep; (5) that, except as to regulation of the right to graze the surrounding
public domain (validly regulated by the state until the effectiveness of its statute was
destroyed by the Taylor Grazing Act) this surplus was subject to appropriation by
appellant; {6) that appellant's appropriation and use of such surplus, leaving ample water
for the watering of respondent's sheep, did not and could not {in the ineffectiveness of
the regulatory grazing provisions of the stockwatering act) work irreparable injury to
respondent by depriving him of the right to water his sheep at said springs or by depriving
such sheep of necessary stock water; {7) that there was an insufficiency of feed in the
area involved, and that the regulation and administration of the grazing of livestock in the
area so as to permit an orderly use of the area had been directly committed by Congress
to the Secretary of the Interior and the Bureau of Land Management.
73 Nev. 93, 101 (1957) Ansolabehere v. Laborde
surplus was subject to appropriation by appellant; (6) that appellant's appropriation and use of
such surplus, leaving ample water for the watering of respondent's sheep, did not and could
not (in the ineffectiveness of the regulatory grazing provisions of the stockwatering act) work
irreparable injury to respondent by depriving him of the right to water his sheep at said
springs or by depriving such sheep of necessary stock water; (7) that there was an
insufficiency of feed in the area involved, and that the regulation and administration of the
grazing of livestock in the area so as to permit an orderly use of the area had been directly
committed by Congress to the Secretary of the Interior and the Bureau of Land Management.
If we are correct in this analysis of the situation and if it would then appear that the Bureau
of Land Management had granted permits that would overobligate the range, this is not a
situation vesting or revesting jurisdiction in the state district court to effect a regulation of
such use by enjoining appellant from the use of surplus water not put to a beneficial use by
respondent, in effect preventing appellant from grazing his livestock upon the surrounding
public lands.
That the State of Nevada, in the exercise of its police power, did effect a regulation of the
use of the public domain in the enactment of the 1925 stockwatering law cannot be denied. It
is just as clear that the Congress of the United States, in enacting the Taylor Grazing Act in
1934, vested full control of the use of the public domain in the Secretary of the Interior. The
real problem that is presented grows out of (1) the recognition contained in the Taylor
Grazing Act that nothing therein contained shall be construed or administered in any way to
diminish or impair any right to the possession and use of water for mining, agricultural,
manufacturing or other purposes which has heretofore vested or accrued under existing law
validly affecting public lands * * *; (2) federal recognition of state ownership of
non-navigable waters, and of the right of the several states to determine the method of
obtaining from the state the right to the use thereof;2 and {3) the approval given by this
court to the legislative theory of the 1925 stockwatering act and definitely tying the
stockwatering right to the ownership of livestock that will graze the surrounding public
lands. "The right to the use of water for watering livestock in this arid state depends for
its value on the public range; hence we think the two matters are properly connected."
73 Nev. 93, 102 (1957) Ansolabehere v. Laborde
state the right to the use thereof;
2
and (3) the approval given by this court to the legislative
theory of the 1925 stockwatering act and definitely tying the stockwatering right to the
ownership of livestock that will graze the surrounding public lands. The right to the use of
water for watering livestock in this arid state depends for its value on the public range; hence
we think the two matters are properly connected. In re Calvo, 50 Nev. 125, 253 P. 671.
Appellant categorically asserts that the Taylor Grazing Act superseded and overthrew the
1925 Nevada stockwatering act so far as it controlled the range as well as the water.
Respondent as categorically takes issue with appellant's basic premise that the 1925 water
law can no longer be controlling. On the contrary, it is our contention that the 1925 water law
is controlling.
A somewhat different expression of these diametrically opposed views is this. Respondent
contends that the continued control of the use of stock water by the state (the right to the use
of which stock water depends for its value on the public range, In re Calvo, supra), while
the federal government is exercising complete control over the surrounding public domain,
presents a situation of the utmost confusion; that, adopting the language of Congressman
Scrugham in the hearings upon the Taylor Grazing Act before the Public Lands Committee of
the House of Representatives, such situation puts the average stockman in the State of
Nevada in the anomalous position of having his ranch owned by himself; the water used by
his grazing stock controlled by the state and the grazing lands themselves controlled by two
or more government bureaus.
____________________

2
Act of Congress July 26, 1866, 43 U.S.C.A., Sec. 661, 14 Stat. 251, Ch. 262, R.S., Sec. 2339; Whenever,
by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes,
have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and the
decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the
same; * * *. United States v. Gerlach Livestock Co. (1949), 339 U.S.725, 70 S.Ct. 955, 94 L.Ed. 1231:
California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 55 S.Ct. 725, 79 L.Ed. 1356;
Jennison v. Kirk, 98 U.S. 453, 25 L.Ed. 240; Broder v. Water Co., 101 U.S. 274, 25 L.Ed. 790.
73 Nev. 93, 103 (1957) Ansolabehere v. Laborde
controlled by two or more government bureaus. It puts the stock industry in trying position,
just as though a man were in the teaming business, and his horse belongs to one man and his
harness belongs to another, and his wagon belongs to another, and he had to get permission
from each one to proceed with a job. Appellant sees no such resulting confusion, but an
orderly process whereunder an owner's stockwatering rights are fixed and controlled by the
state and his grazing rights fixed and controlled by the United States; that the orderliness of
this distribution of authority is in no way disturbed by the fact that the measure of the
stockwatering right is determined by the number of livestock watering at the particular
source, and that its use is dependent for its value on the adjacent public range; that this is
entirely in accord with the traditional, consistent and unbroken legislative and case history of
water rights in this state, namely, that beneficial use shall be the basis, the measure and the
limit of the right to the use of water.
3
NRS 533.035.
Another example of the complete divergence of the views of the parties is this. Support of
an injunction restraining appellant from watering his livestock at the springs in question can,
in appellant's view, be found only in proof that all of such water is necessary for the watering
of respondent's livestock; that excess or surplus of water above such necessity is not being put
to
____________________

3
Applications to the state engineer for permission to appropriate the public waters of the state (for
stockwatering purposes as well as for irrigation, power, etc.) are followed by proof of commencement of work,
proof of completion of work, and finally by proof of application of the water to beneficial use. NRS 533.380.
Prior to the Taylor Grazing Act federal permission to graze the public lands was not involved in a beneficial
use and that the the making of proof of application to beneficial use under stockwatering applications and
could be made through the showing that a specified number of the applicant's sheep, cattle, etc. watered at the
applicant's troughs, tanks, etc. and grazed the surrounding public domain. No confusion would be involved,
following the initiation of federal control of the public lands, if the state engineer should require the final proof
of application of the water to beneficial use to include a showing of a valid permit or license from the Bureau of
Land Management. Without such permit or license the stock water could not be put to beneficial use.
73 Nev. 93, 104 (1957) Ansolabehere v. Laborde
a beneficial use and that the lawful use of such surplus cannot be restrained, as such restraint
must be premised upon appellant's violation of respondent's stockwatering rights and not
upon the grazing rights under the control of the Secretary of the Interior. Respondent, on the
contrary, contends that the watering by appellant upon even a surplus of water in respondent's
springs, with intent to graze the surrounding range, is so in violation of the state's
stockwatering act, so in violation of stockwatering rights specifically preserved in respondent
by the Taylor Grazing Act, that no legal effect can result from the attempt of the Bureau of
Land Management to grant appellant a right to graze the area with stock that will water at the
springs.
Likewise in the following respect are the views of the parties diametrically opposed.
Respondent contends that the Taylor Grazing Act, recognizing as it does that it may not be
administered so as to impair any right to the possession and use of water for stock water
purposes vested or accrued under existing law validly affecting the public lands, must be
confined to the administration of grazing lands which are in no way involved with the
question of stockwatering rights. Appellant replies that it is not conceivable that such could
be the intent of Congress, thus to vest in the control of the Secretary of Interior only the dry
ranges of the western states, withholding from his control the administration of those well
watered ranges with which the livestock industry is chiefly concerned. In this connection it
may be accepted as a fact, of which this court may take judicial notice, that some portions of
the public domain contain great amounts of grass, browse and other forage unavailable for
use by livestock because of the absence of springs or streams upon which they may water;
and that on the other hand there are large areas of the public domain upon which may be
found numerous streams and springs providing ample water for livestock, but providing
insufficient feed to support during the grazing season even a small proportion of the stock
that could water in the vicinity. In other words, the basis of conflict between two or more
stockmen utilizing the public domain may on the one hand be shortage of stock water or
may on the other hand be shortage of feed.
73 Nev. 93, 105 (1957) Ansolabehere v. Laborde
between two or more stockmen utilizing the public domain may on the one hand be shortage
of stock water or may on the other hand be shortage of feed. It is evident to the court, both
from the briefs and the record, that the present controversy rose out of shortage of feed.
With further reference to respondent's contention that administration and control under the
Taylor Grazing Act must be confined only to the dry ranges where state stockwatering rights
are not involved, we may note that the proviso upon which he relies not only protects such
water rights theretofore vested or accrued under existing law validly affecting the public lands
but also such rights which may be hereafter initiated or acquired and maintained in
accordance with such law. This in turn suggests a possible situation in which upon the dry
ranges a livestock owner might obtain from the state engineer permission to appropriate
underground waters by drilling and pumping or other development, and, upon proof of his
obtaining a sufficient flow of underground water to water sundry given numbers of livestock,
obtain from the state engineer his final certificate approving such water right. It is not
fantastic thus to envisage providing ample stock water upon the dry ranges. Under
respondent's theory this would leave virtually none of the public lands to the administration of
the Bureau of Land Management. That the Congress or the United States courts would long
tolerate such complete emasculation of the power and authority of the Secretary of the
Interior to regulate the use of the public lands is hardly conceivable.
4
Respondent contends
that the decision of the range manager was in error in granting any grazing right or
privilege to appellant, and argues that the granting of such right or privilege was in
contravention of sundry sections of the Federal Range Code, supporting these contentions
by reference to testimony of the witnesses.

____________________

4
Congress enacted the Taylor Grazing Act after almost forty years of study of predecessor acts seeking to
effect federal administration of the public lands in the several states. S. Rep. 1258, 73 Cong., 2d Sess., p. 2.
Hearings, H. Com. on public lands on H.R. 2835 and 6462, 73d Cong., 2d Sess., p. 68. In Brooks v. Dewar, 313
U.S. 354, 61 S.Ct. 979, 85 L.Ed. 1399 (reversing Brooks v. Dewar, 60 Nev. 219. 106 P.2d 755, not upon the
merits of the controversy as to whether the Secretary was violating the express terms of the act, but upon the
ground that Congress had impliedly ratified the Secretary's actions) the United States Supreme Court
sympathetically considered that years of experiment might be necessary before the Secretary could place the
users of lands under term permits, and that
73 Nev. 93, 106 (1957) Ansolabehere v. Laborde
Respondent contends that the decision of the range manager was in error in granting any
grazing right or privilege to appellant, and argues that the granting of such right or privilege
was in contravention of sundry sections of the Federal Range Code, supporting these
contentions by reference to testimony of the witnesses. Such contention is entirely one for
consideration of the Bureau of Land Management and not a question for consideration or
review by this court.
The trial court's abortive attempt to continue in effect the range regulatory provisions of
the state stockwatering law by enjoining a trespass upon the stockwatering rights, irrespective
of a surplus flow, arises, we think, out of a misconception. Under the stockwatering law the
owner of a stockwatering right in the center of a range area carrying sufficient feed to
maintain, for example, 100 head of cattle through the season was protected against a
subsequent appropriation from that source or a subsequent use of water on that source
by livestock which would graze that area.
____________________
even for such extensive experimental periods it was not the intent of Congress that the grazing lands should go
unregulated. That decision was rendered in May 26, 1941, at which time the Secretary of the Interior had been
authorized to establish grazing districts not exceeding in the aggregate an area of 142,000,000 acres of the public
lands. Id. note 4. Prior to the Taylor Grazing Act more than 15,000 persons had been using the public range for
grazing more than 8,000,000 head of livestock annually under implied licenses. Buford v. Houtz, 133 U.S. 320,
10 S.Ct. 305, 33 L.Ed. 618. In the years following, the vast extent of the work done by the Director of Grazing
and the Bureau of Land Management through a large force of expert personnel is a matter of common
knowledge. The testimony of hundreds of persons, the compiling of a library of data, the expenditure of vast
amounts of money, time, energy and skill in field examinations, the conducting of numerous hearings, the
making of findings thereon, the adjudication of grazing rights on grazing areas both large and small, the
determination of the carrying capacity of such ranges, the limitation and curtailing of the grazing use thereof to
preserve the same from deterioration, the appraisal of the capacity of the base properties to carry the livestock
in winter, all present a picture of the extent of wasted effort that would result from an adoption of respondent's
views. As to the great numbers of personnel engaged, see Official Register of the United States, 1956, pages 379
and following. As to the vast extent of the operations of the Bureau of Land Management, see 1956 Annual
Report of the Secretary of the Interior, page 235 and following. With reference to section 15 of the Taylor
Grazing Act governing lease administration, it is stated: In most states 95 percent or more of the total leasable
acreage is now under lease and efforts are being continued to reach 100 percent. Respondent's theory would
undoubtedly invalidate a great number of these leases.
73 Nev. 93, 107 (1957) Ansolabehere v. Laborde
of a range area carrying sufficient feed to maintain, for example, 100 head of cattle through
the season was protected against a subsequent appropriation from that source or a subsequent
use of water on that source by livestock which would graze that area. This quite conceivably
was so, despite a sufficiency of water to water twice that many livestock. Beneficial use was
made through the consumption of feed available to the stock watering at the source.
5
Any
stockwatering use of the surplus by a second stockman would interfere with the beneficial use
of the first appropriator, for the second appropriator's livestock would consume the feed, or
part of the feed, to which the first appropriator's stock were entitled. But with the complete
administration and control of the range vested in the Bureau of Land Management, the use of
the public domain and the protection of one or more stock owners in such use was no longer
within the power, authority or jurisdiction of the state authorities. There remained to them
only the determination, protection and adjudication of water rights. Under any such
determination or adjudication, protection would be afforded only to the extent of water being
put to a beneficial use. Under Itcaina v. Marble, 56 Nev. 420, 55 P.2d 625, 629 (the Taylor
Grazing Act not being then in effect), this court, in sustaining the lower court's injunction,
frankly, openly and pointedly indicated that the injunction operated against defendant's use of
the public domain. Under [the provisions of the 1925 stockwatering act] by reason of
plaintiff's subsisting right to the use of all of the waters in Hanks Creek Basin, he could not be
deprived of the grazing use of any portion of the public range readily available to the
plaintiff's cattle. As we have indicated, the relief attempted to be accorded in the present
case was to all intents and purposes the same.
____________________

5
The state engineer's rule to the effect that the amount of water applied for or appropriated for stockwatering
purposes could be measured by the number of stock to be watered does not affect the situation. It is simply a
convenient measure instead of that used for other appropriations by cubic feet per second, acre feet, gallons per
minute, etc.
73 Nev. 93, 108 (1957) Ansolabehere v. Laborde
poses the same. By reason of the Taylor Grazing Act, however, it was not available to
respondent, and the district court was, therefore, in error in granting such relief.
Reversed with costs to appellant.
Eather and Merrill, JJ., concur.
____________
73 Nev. 108, 108 (1957) Elias v. State
EDWARD BLEEKER ELIAS, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 3958
April 30, 1957 310 P.2d 621
Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Prosecution resulting in conviction of murder in first degree. The lower court entered
judgment of conviction and defendant appealed. The supreme court, Eather, J., held that
evidence established that killing was perpetrated with express malice aforethought.
Affirmed.
(Petition for rehearing denied June 17, 1957.)
R. Dale Cook and John W. Bonner, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, and George M. Dickerson, District
Attorney, of Las Vegas, for Respondent.
1. Criminal Law.
Order and commitment which set forth that defendant was to be held to answer upon charge of murder
was not fatally defective for failure to specify degree of murder.
2. Criminal Law.
Where, from testimony on preliminary hearing, no other conclusion could fairly have been reached than
that facts would support a charge and conviction of first-degree murder, order and commitment,
setting forth that defendant was to be held without bail, was not defective on theory
that documents did not state that there was probable cause that first-degree murder
had been committed.
73 Nev. 108, 109 (1957) Elias v. State
order and commitment, setting forth that defendant was to be held without bail, was not defective on theory
that documents did not state that there was probable cause that first-degree murder had been committed.
3. Homicide.
Evidence established that defendant's murder of his wife had been perpetrated with express malice
aforethought.
OPINION
By the Court, Eather, J.:
Appellant was convicted of murder of the first degree and his punishment fixed at death by
the jury. His appeal is from the judgment and from the order denying his motion for a new
trial.
In a criminal complaint filed in the justice's court of Las Vegas Township, Clark County,
Nevada, on September 28, 1955, appellant was charged with the murder of his wife, Lucy
Elias, wilfully, feloniously and with malice aforethought, alleged to have been committed on
or about the 23d day of September, 1955, in Clark County, State of Nevada.
A preliminary hearing was held on October 14, 1955 in the justice's court of Las Vegas
Township, Clark County, Nevada.
At the conclusion of the preliminary hearing, the justice of the peace caused to be certified
to the district court, the complaint, warrant, docket, order, and a commitment, which
commitment and order inter alia provided:
* * * be held to answer upon the charge of murder * * *
* * * defendant to be held without bail. * * *
On October 18, 1955, an information was filed in the Eighth judicial district court of the
State of Nevada in and for the county of Clark, charging the appellant, Edward Bleeker Elias,
with the crime of murder.
It was alleged in said information that the said Elias, on or about the 23d of September,
1955, at and within the county of Clark, State of Nevada, did then and there, without
authority of law, wilfully, feloniously and with malice aforethought, kill and murder Lucy
Elias, a human being, by then and there shooting said Lucy Elias, with a gun, to-wit, a
Harrington and Richards 22-calibre revolver.
73 Nev. 108, 110 (1957) Elias v. State
malice aforethought, kill and murder Lucy Elias, a human being, by then and there shooting
said Lucy Elias, with a gun, to-wit, a Harrington and Richards 22-calibre revolver.
In the appellant's opening brief assignments of error are stated as follows:
1. The order and commitment holding appellant to answer was fatally defective in failing
to specify the degree of murder.
2. The order and commitment was fatally defective in ordering appellant held without
bail, without stating that there was probable cause that first degree murder had been
committed.
3. The court erred in denying appellant's motion for a new trial.
[Headnote 1]
By his first assignment of error appellant contends that the order and commitment holding
appellant to answer was fatally defective in failing to specify the degree of murder. It is our
opinion that this contention is without merit.
In the case of Ex Parte Wm. Willoughby, 14 Nev. 451, 453, the warrant of commitment
recited that Willoughby had been held to answer the charge of murder by being an accessory
before the fact, to the killing of P. L. Traver, at Metallic City, Esmeralda County, State of
Nevada, on or about the fifth day of January, A.D. 1880.
The defendant contended that the warrant did not specify any offense known to the law.
The court held: This satisfies all the requirements of the statute (Vol. 1, C.L.1794). It states
the nature of the offensemurderand the time and place where committed. Accord: State
v. Munios, 44 Nev. 353, 357, 195 P. 806. State v. Blackwell, 65 Nev. 405, 415, 198 P.2d 280,
200 P.2d 698.
[Headnote 2]
Upon his second assignment of error, that the commitment was defective in ordering
defendant to be held without bail, defendant relies upon St. v.
73 Nev. 108, 111 (1957) Elias v. State
without bail, defendant relies upon St. v. Teeter, 65 Nev. 584, 200 P.2d 657. That case is
distinguishable in that no preliminary hearing was had or testimony presented to the
magistrate from which a determination might have been made that a capital offense was
involved. As was ultimately demonstrated, a capital offense was not, in fact, involved. In the
case at bar, from the testimony presented on preliminary hearing, no other conclusion could
fairly have been reached than that the facts would support a charge and conviction of first
degree murder. We conclude that there is no merit in this contention. See Ex Parte Nagel, 41
Nev. 86, 167 P. 689: Ex Parte Finlen, 20 Nev. 141, 18 P. 827.
[Headnote 3]
Appellant's third assignment of error challenges the sufficiency of the evidence. It is the
contention of the appellant that the evidence introduced was insufficient to establish that the
killing was perpetrated with express malice aforethought.
In State v. Bourdlais, 70 Nev. 233, 255, 256, 265 P.2d 761, 771, this court stated:
It has been the rule in the State of Nevada, long established and consistently adhered to
by this court, that if there is substantial evidence to support the verdict of the jury, the
evidence will not be weighed by this court, nor the verdict or judgment disturbed. This court
cannot reverse the judgment upon the ground of insufficiency of the evidence where there is
substantial evidence to support the verdict of the jury. State v. Wong Fun, 22 Nev. 336, 40 P.
95; State v. Boyle, 49 Nev. 386, 248 P. 48; State v. Teeter, 65 Nev. 584, 200 P.2d 657; State
v. McKay, 63 Nev. 118, 165 P.2d 389; 167 P.2d 476; State v. Fitch, 65 Nev. 668, 200 P.2d
991.
We have examined the entire case and in our opinion the evidence supports the verdict.
No error appearing, the judgment and the order denying appellant's motion for a new trial
are hereby affirmed; the application for modification of the judgment by reducing the degree
of the crime is hereby denied, and the district court is directed to make the proper order
for carrying into effect, by the warden of the state prison, of the judgment rendered.
73 Nev. 108, 112 (1957) Elias v. State
denied, and the district court is directed to make the proper order for carrying into effect, by
the warden of the state prison, of the judgment rendered.
Badt, C. J., and Merrill, J., concur.
____________
73 Nev. 112, 112 (1957) Osmun v. Osmun
DOROTHY OSMUN, Appellant, v. MARVIN NEIL
OSMUN, Respondent.
No. 3916
April 30, 1957 310 P.2d 407
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Petition by father for modification of divorce decree with respect to custody of minor
children. The trial court entered an order modifying decree so as to award custody of children
to father, and mother of children appealed. The Supreme Court, Eather, J., held that no such
change of circumstances as would justify modification of divorce decree with respect to
custody of minor children was shown.
Reversed and remanded.
Wright & Eardley, of Elko, for Appellant.
F. Grant Sawyer, of Elko, for Respondent.
Divorce.
Remarriage and improved financial circumstances of father and fact that son and daughter, six and three
years of age, respectively, had remained with father since entry of divorce decree, awarding custody of
children to mother, pursuant to voluntary agreement by mother that children should live with father
temporarily while she returned to school to equip herself better for employment, did not show such change
of circumstances as would justify modification of divorce decree so as to award custody of children to
father on his petition filed one year after entry of decree.
73 Nev. 112, 113 (1957) Osmun v. Osmun
OPINION
By the Court, Eather, J.:
This is an appeal from an order modifying a decree of divorce to change custody of two
minor children. Custody of the children (a boy age 6 and a girl age 3 at the time the suit was
brought in 1954) was, by the decree of divorce, awarded to their mother. By the order of
modification custody was changed to the father. The mother has taken this appeal. She
contends that the trial court was guilty of abuse of discretion in that there is no evidence of
such change of circumstances as would warrant the modification under the recognized law of
this state: Elsman v. Elsman, 54 Nev. 31, 10 P.2d 963; Abell v. District Court, 58 Nev. 89; 71
P.2d 111; State Ex Rel. Groves v. District Court, 61 Nev. 269, 125 P.2d 723. We concur in
this view.
One year elapsed from the date of the original decree to the date of the father's petition for
modification. By the decree the mother was allowed $65 a month for the support of the
children. She had no means of her own, no job, no home of her own. It was anticipated that
she would be able to provide herself with all necessities for the proper care of the children,
making her home in Salt Lake City. After the decree was granted she decided to return to
school in Salt Lake City in order to better equip herself for employment. A week after the
granting of the decree the parties agreed that for the current school year and until the summer
of 1955 the father should take the children to Imlay, Nevada, to live with him. The mother's
reasons for this agreement undenied by the father, were that with her attending school and
working she would not have time to give the proper attention to the children; that the school
situation was better for the children in Imlay; that the father had just completed service in the
navy and felt that having the children with him would aid him in his adjustment to civilian
life. From that time on the children remained with the father.
73 Nev. 112, 114 (1957) Osmun v. Osmun
Just prior to filing his petition for modification he remarried; his financial position has
improved since the original decree was rendered and accordingly his ability to provide a
stable home for the children. No change of circumstances has been shown so far as affected
the ability of the mother to care for the children. Her situation appears to be precisely the
same as at the time the decree was rendered. There is no question whatsoever of her fitness or
of her affection for the children.
The father contends that the experience of the intervening period itself demonstrates the
mother's lack of ability to care for the children. This is not so. She is no less able now than
when the decree was granted. She has not yet had an opportunity to demonstrate her ability to
care for the children and the trial court is not yet able to judge of her abilities on the basis of
experience. Her surrender of the children was voluntary and in line of her plan to secure
further schooling, which plan she has now abandoned. Her voluntary temporary surrender of
the children in the light of what she felt to be her best interests cannot be permitted to result
in prejudice to her.
The only material change of circumstances apparent in the record is the improvement of
the father's circumstances. In our opinion, such change, standing alone, cannot be justification
for a change of custody. Traditionally it is considered to warrant a change in the amount of
allowance more appropriately than change of custody.
Respondent places great reliance on Bemis v. Bemis, 89 Cal.App.2d 80, 200 P.2d 84, but a
careful reading of the majority opinion in that case, in our opinion, supports the view we have
taken.
Reversed and remanded with instructions that the order modifying the decree be set aside.
Costs to the appellant.
Badt, C. J., and Merrill, J., concur.
____________
73 Nev. 115, 115 (1957) Tax Commission v. Hicks
NEVADA TAX COMMISSION, Composed of Charles H. Russell, Chairman, Robert A.
Allen, D. W. Park, Norman D. Brown, Paul D. McDermott, Gordon Lathrop and W. S. Larsh,
Appellants, v. MARION B. HICKS, JAMES F. SCHUYLER, CLIFFORD A. JONES,
VICTOR B. SAYRE, HARRY BADGER, WILLIAM DEER, JACK LANE, JOE WELLS
and L. B. SCHERER, Doing Business as the Thunderbird Hotel Company, a Copartnership,
Respondents.
No. 3949
May 3, 1957 310 P.2d 852
On review of order of Nevada Tax Commission suspending gambling license. Appeal
from the Eighth Judicial District Court, Clark County; Merwyn H. Brown, Presiding Judge.
Action brought to have Tax Commission enjoined from enforcement of gambling license
suspension order. The lower court granted the relief sought, and the Commission appealed.
The Supreme Court, Merrill, J., held that even though the Commission's assignments of
unsuitability to engage in gambling were, in some respects, supported by evidence,
Commission's order must be reversed since what Commission had treated as major offenses
were without substantial evidentiary support.
With note taken of error in interlocutory orders, judgment setting aside suspension
order affirmed.
E. Frandsen Loomis; Springer & McKissick, of Reno, for Appellants.
Woodburn, Forman, Wedge, Blakey & Thompson, of Reno; Harry E. Claiborne, of Las
Vegas, for Respondents.
1. Evidence.
Court would take note of common knowledge background of general statutory language in determining
legislative intent.
73 Nev. 115, 116 (1957) Tax Commission v. Hicks
2. Gaming.
What constitutes suitability to engage in gambling, for purposes of licensing statute, is administrative
determination to be made by Commission in exercise of its judgment based on its specialized experience
and knowledge, and it is not province of court to decide what constitutes suitability. N.C.L.1943-1949
Supp. sec. 3302.22a.
3. Gaming.
Whether suitability to engage in gambling, as defined by Tax Commission, exists in particular cases is
question of fact, and court may review Commission's determination thereof. N.C.L.1943-1949 Supp. sec.
3302.22a.
4. Gaming.
Where factual determinations in gambling license revocation or suspension case are made after hearing
and notice, Tax Commission acts in quasi-judicial capacity, and it is in this respect only, in the usual case,
that revocation or suspension order is subject to review by courts. N.C.L.1943-1949 Supp. sec. 3302.22a.
5. Gaming.
In gambling license revocation or suspension case, Commission cannot simply rule that, upon all facts of
case, it has concluded that licensee is unsuitable; and standards of suitability must clearly appear from its
decision. N.C.L.1943-1949 Supp. sec. 3302.18, as amended by St.1953, c. 284.
6. Gaming.
Only requirement imposed by statute is that judicial proceedings in gambling license revocation case
shall be in nature of review, and certiorari is not only appropriate method of review. N.C.L.1943-1949
Supp. sec. 3302.22a.
7. Gaming.
Court, reviewing gambling license suspension order, should have confined its consideration to record
before Commission. N.C.L.1943-1949 Supp. sec. 3302.22a.
8. Constitutional Law.
Balancing of private interests against public interests in such matters as gambling licensing is legislative
responsibility.
9. Gaming.
Under Gambling Control Act provision that suspension or revocation should become and remain
effective until reversed or modified on judicial review, injunction against enforcement of Commission's
ruling was not available pending judicial review. N.C.L.1943-1949 Supp. sec. 3302.22a.
10. Gaming.
In gambling license suspension case, appellate function of Supreme Court is not to review determinations
of court below but to undertake afresh a review of Commission's determinations and to ascertain whether,
as a matter of law, they are supported by substantial evidence. N.C.L.1943-1949 Supp. sec. 3302.22a.
73 Nev. 115, 117 (1957) Tax Commission v. Hicks
11. Gaming.
The financially participating interest, in gambling licensee's business, which Commission's rules require
be reported, does not necessarily have to give holder thereof right to share in profits in operation of
gambling establishment, and may result when money is lent for purpose of financing enterprise.
N.C.L.1943-1949 Supp. secs. 3302.19, 3302.22a.
12. Corporations.
A corporation possesses a legal entity apart from people who compose it; but, in proper case, entity may
be disregarded when it serves as a shield against justice.
13. Gaming.
Hotel corporation's creditor had no such financially participating interest in gambling partnership as
would have to be reported to Commission, under its rules, notwithstanding fact that same individual
controlled both corporation and gambling partnership, which operated under lease from hotel corporation.
N.C.L.1943-1949 Supp. secs. 3302.19, 3302.22a.
14. Evidence.
Inference mounted upon another, or inference mounted upon presumption, cannot be said to constitute
substantial evidence.
15. Witnesses.
Attorney-client privilege did not exist as to conversation held in presence of third person.
16. Gaming.
Where Commission's assignments of unsuitability to engage in gambling were, in some respects,
supported by evidence, but what Commission had treated as major offenses were without substantial
evidentiary support, Supreme Court would reverse Commission's license suspension order, accepting
apparent basis to be true basis for Commission's action. N.C.L.1943-1949 Supp. sec. 3302.22a.
OPINION
By the Court, Merrill, J.:
This matter is before this court on review of action taken by the Nevada Tax Commission.
This is an appeal taken by the commission from judgment of the court below setting aside the
commission's order suspending the gambling licenses theretofore issued by the state to
respondents as partners in the operation of a gambling enterprise.
On February 10, 1955 the commission issued a citation to respondents ordering them to
show cause why their state gambling licenses should not be revoked.
73 Nev. 115, 118 (1957) Tax Commission v. Hicks
their state gambling licenses should not be revoked. Hearing was had on March 30, 1955, and
on April 25, 1955 the commission made its findings of fact and conclusions of law and
entered its order. It declared respondents Marion B. Hicks and Clifford A. Jones unsuitable to
hold gambling licenses and suspended the licenses of all respondents until the two unsuitable
licensees had disposed of their partnership interest.
On May 18, 1955 the present action was brought by respondents against the commission
seeking an injunction against the enforcement of the suspension order. On that date an order
temporarily restraining suspension was issued by the trial court and on June 22, 1955 an
injunction against suspension, pendente lite, was issued. Trial was had October 17 and 18,
1955. In the course of trial evidence as to the suitability of Hicks and Jones, not presented to
the commission, was received by the trial court over the commission's objection. The
commission rested its case upon the record made before it. On December 19, 1955 the trial
court rendered its decision in favor of respondents, granting a permanent injunction against
enforcement of the suspension order upon the ground that it was not supported by substantial
evidence. This appeal was then taken by the commission.
The commission contends: (1) That the trial court erred in receiving new evidence and
thus transforming what should have been a review of the commission's action into a trial de
novo. (2) That the trial court had no authority to grant an injunction pendente lite. (3) That the
suspension order was supported by substantial evidence and should have been affirmed.
It is apparent that this appeal, in general, presents two duties to this court: First, that of
fixing the jurisdictional area within which the courts shall act in this field of gambling
control; Second, that of proceeding to act within the judicial area so delineated.
[Headnote 1]
We turn to the first of these matters. In this regard statutory language, as hereinafter
quoted, is general.
73 Nev. 115, 119 (1957) Tax Commission v. Hicks
However, against a background of common knowledge, of which we here take note, the
legislative intent emerges with clarity.
We note that while gambling, duly licensed, is a lawful enterprise in Nevada, it is unlawful
elsewhere in this country; that unlawfully followed elsewhere it tends there to create as well
as to attract a criminal element; that it is a pursuit which, unlawfully followed, is conducive
of corruption; that the criminal and corruptive elements engaged in unlawful gambling, tend
to organize and thus obtain widespread power and control over corruptive criminal
enterprises throughout this country; that the existence of organized crime has long been
recognized and has become a serious concern of the federal government as well as the
governments of the several states.
Throughout this country, then, gambling has necessarily surrounded itself with an aura of
crime and corruption. Those in management of this pursuit who have succeeded, have done
so not only through a disregard of law, but, in a competitive world, through a superior talent
for such disregard and for the corruption of those in public authority.
For gambling to take its place as a lawful enterprise in Nevada it is not enough that this
state has named it lawful. We have but offered it the opportunity for lawful existence. The
offer is a risky one, not only for the people of this state, but for the entire nation. Organized
crime must not be given refuge here through the legitimatizing of one of its principal sources
of income. Nevada gambling, if it is to succeed as a lawful enterprise, must be free from the
criminal and corruptive taint acquired by gambling beyond our borders. If this is to be
accomplished not only must the operation of gambling be carefully controlled, but the
character and background of those who would engage in gambling in this state must be
carefully scrutinized.
This court has already had occasion to note that the control and licensing of gambling is a
duty demanding special knowledge and experience in matters of personnel, operation, and
finance, as related to this type of enterprise.
73 Nev. 115, 120 (1957) Tax Commission v. Hicks
enterprise. Dunn v. Nev. Tax Com., 67 Nev. 173, 216 P.2d 985. The risks to which the public
is subjected by the legalizing of this otherwise unlawful activity are met solely by the manner
in which licensing and control are carried out. The administrative responsibility is great.
Against this background of common knowledge we turn to the statutory provisions. The
function of the tax commission in gambling control, as applied to the facts of this case, is
briefly and generally stated in sec. l0(b) of the gambling control act in effect at the time these
proceedings were initiated. Sec. 3302.18, NCL 1943-1949 Supp., as amended Stats. 1953, ch.
284, pp. 439 and 440 (since superseded by NRS 463.130, 463.140). That section provides, It
is hereby declared to be the policy of this act that all establishments where gambling games
are conducted or operated or where gambling devices are operated in the State of Nevada
shall be licensed and controlled so as to better protect the public health, safety, morals, good
order and general welfare of the inhabitants of the State of Nevada, and it is hereby made the
duty of the Nevada tax commission to investigate into the legal qualifications of each
applicant for licenses under this act before any such license is issued, to the end that licenses
shall not be issued to unqualified or disqualified persons or to unsuitable persons or for
prohibited places or locations.
The pertinent statutory provision for judicial review is brief. Section 10(ff) of the
gambling control act, in effect at the time these proceedings were initiated, sec. 3302.22a,
NCL 1943-1949 Supp. (since superseded by NRS 463.310), deals with the commission's
power of revocation and suspension of licenses and provides in part, Any such revocation or
suspension so made shall become and remain effective until reversed or modified by a court
of competent jurisdiction upon review.
In this case the suspension order was based upon the ground that two of the individual
licensees were not suitable to hold license. We are dealing with the duty to determine the
suitability of those who would secure or retain gambling licenses.
73 Nev. 115, 121 (1957) Tax Commission v. Hicks
to determine the suitability of those who would secure or retain gambling licenses. This duty
the legislature has expressly imposed upon the tax commission. In cases of revocation or
suspension the manner in which this duty is carried out is made subject to judicial review.
[Headnotes 2-4]
To accomplish its duty the commission must first define suitability: fix the standards by
which it is to judge suitability. Here it acts administratively. Next it must ascertain and
examine the facts of the particular case to determine whether its standards have been met.
Here, in cases of revocation or suspension where the factual determinations are made after
hearing and notice, the commission acts in a quasi-judicial capacity. It is in this respect only,
in the usual case, that revocation or suspension is subject to review by the courts. Accord:
State ex rel. Grimes v. Board of Com. of Las Vegas, 53 Nev. 364, 1 P.2d 570. It is not the
province of the courts to decide what shall constitute suitability to engage in gambling in this
state. That is an administrative determination to be made by the commission in the exercise of
its judgment based upon its specialized experience and knowledge. Accord: Dunn v. Nev.
Tax Com., supra. Whether suitability as defined by the commission exists in the particular
case is a question of fact and of evidence, not of administrative ruling. Judgment upon such
questions is judgment which the courts are qualified to review.
This is not to say that the administrative determination (as distinguished from the judicial),
is wholly exempt from judicial scrutiny. Standards of suitability may be fixed which are so
completely unrelated to the subject as to demonstrate that the administrative action of the
commission in defining suitability was arbitrary, discriminatory, capricious, or wholly beyond
the sphere of its authority. We are not faced with such a situation in this case, however. The
only review with which we are concerned is the review of the action of the commission in
its quasi-judicial capacity.
73 Nev. 115, 122 (1957) Tax Commission v. Hicks
[Headnote 5]
Since the nature of the court review in such a case as this is limited, the action taken by the
commission must make it possible for the courts to respect those limits. It would not do,
therefore, for the commission to rule simply that upon all the facts of the case it has
concluded that the licensee is unsuitable. A court review of such a determination would
require the court itself to fix its own standards of suitability in order to determine whether,
upon the proof, such standards have been met. As we shall note later in this opinion, the
commission in this case did not make such a general determination. Standards of suitability
clearly appear from its decision.
Bearing in mind the distinction between the administrative area and the judicial area we
turn to the commission's assignments of error dealing with the nature of the proceedings had
in the court below.
[Headnote 6]
This action was treated by the court as an independent and original action in equity. The
commission contends that, as such, it must be held a nullity; that the only appropriate method
of review can be by certiorari. This, we feel, is going somewhat too far in matters of form.
The statutory provision for judicial review, which we have already quoted, is far from
specific. It invites improvisation. Its only specification is that judicial action shall be by
review. Its only requirement, then, is that whatever the form of judicial proceedings, whether
initiated by writ or by complaint, they shall be in the nature of a review.
[Headnote 7]
The commission assigns as error the action of the trial court in admitting evidence bearing
upon the issue of suitability which evidence had not been presented to the commission. It
contends that this transformed the proceedings below into a trial de novo; that the trial court
should, upon review, have confined its consideration to the record made before the
commission. Upon this point we concur with the view of the commission.
73 Nev. 115, 123 (1957) Tax Commission v. Hicks
As stated by Judge Learned Hand in National Broadcasting Co. v. U.S., 47 F.Supp. 940,
946, 947, [The commission] was created to make such choices because Congress believed
that it would acquire in its special sphere a skill which courts could not match; * * *. If [new]
evidence went to contradict or overthrow the [commission's] findings we could not bring it
into hotchpot with the evidence taken by the Commission, without deciding the issues in the
first instance ourselves. We have no such power; it would upset the whole underlying scheme
of an expert commission, whose orders must stand or fall upon such evidence as it had before
it.
In Utah Copper Company v. Railroad Retirement Board, 41 F.Supp. 763, 766, it was
stated, * * * [T]he purpose for which the defendant Board was created was to have a body
which, from its peculiar character and specialized experience, will be most fitted to primarily
decide questions such as are raised on this record. Otherwise, as the Court pertinently states
* * * the Board would become but a mere instrument for the purpose of taking testimony to
be submitted to the courts for their ultimate action.'
In referring to the substantial evidence rule James L. Landis states, 53 Harv.L.Rev. 1092,
It evolved naturally as an appreciation arose of the undesirability of trying cases de novo in
the courts and of the value of having the tribunal, informed by experience, assume a real
responsibility for weighing and considering the facts in the fields where it had a peculiar
competence.
It should be apparent that if trial de novo is permitted here it would completely destroy the
effectiveness of the tax commission as an expert investigative board. The most perfunctory
showing could be made before the board by a licensee with knowledge that the matter would
ultimately be decided by the courts upon full evidentiary consideration. Trial de novo, in
effect, could relegate the commission hearing to a meaningless, formal, preliminary and place
upon the courts the full administrative burden of factual determination.
73 Nev. 115, 124 (1957) Tax Commission v. Hicks
We conclude that upon review of the commission's factual determinations the reviewing
court must confine its consideration to the record of evidence made before the commission.
The court below was in error in receiving new evidence relative to the suitability of the
licensees.
[Headnotes 8, 9]
The commission next assigns as error the action of the trial court in granting a temporary
restraining order and an injunction pendente lite against enforcement of the suspension order.
The commission relies upon the provisions of sec. 10(ff) of the gambling control act which
we have already quoted to the effect that revocation or suspension by the commission shall
become and remain effective until reversed or modified on judicial review. Respondents, in
support of the injunction, contend that this language does not necessarily preclude
supersedeas or stay of execution; that if such was the legislative intent it should have been
more clearly stated.
We feel the statutory language to be a clear expression of intent that the order become
effective forthwith. Substantially the same language was considered by this court in State ex
rel. Kassabian v. Medical Examiners, 68 Nev. 455, 235 P.2d 327, 330. There a statute relative
to revocation of a license to practice medicine provided that until the same is modified or
reversed, * * * the revocation or suspension or probation of such certificate shall be and
become effective when duly certified. NCL 1943-1949 Supp. sec. 4107.16. The statute was
recognized to preclude a stay and was attacked as unconstitutional in that respect. We held
the statute constitutional as a legitimate exercise of police power. Certainly the need for close
control in matters of gambling, which we have already noted, justifies similar exercise of
police power by the legislature.
Our decision upon the evidence, which follows, may be felt to provide support for the
contention of respondents to the effect that this is a rule which this very case demonstrates
should be abrogated. Without a stay substantial damage may well be suffered before an
administrative wrong has been judicially righted. However, the balancing of private
interests against public interests in such matters as this remains the legislative
responsibility.
73 Nev. 115, 125 (1957) Tax Commission v. Hicks
balancing of private interests against public interests in such matters as this remains the
legislative responsibility. Primm v. City of Reno, 70 Nev. 7, 252 P.2d 835. We have already
noted that the public interest is great and that the responsibility for its protection is
accordingly great.
We conclude that under the statute an injunction against enforcement of the commission's
ruling is not available pending judicial review. The temporary injunction in this matter was
improperly granted.
[Headnote 10]
Having delineated the area within which the courts shall act in judicial review of
commission action, we turn to a review of the commission action in this case. Respondents
contend that the suspension order is not supported by substantial evidence. Such was the
holding of the court below. As we conceive our appellate function in this type of proceeding
it is not to review the determinations of the court below, but to undertake afresh a review of
the commission's determinations to ascertain whether, as a matter of law, they are supported
by substantial evidence. See Comment, 1 Stanford L.Rev. 326, 329.
The Thunderbird Hotel Company is a partnership engaged in the gambling business in
Clark County, Nevada. In this opinion we shall designate it as the gambling partnership.
Bonanza Hotel, Inc. is a corporation, owner of the premises known as the Thunderbird hotel
in Clark County. In this opinion we shall designate it as the hotel corporation. The gambling
partnership operates under a lease from the hotel corporation. The lease is limited to the
dining room, bar and gambling casino of the Thunderbird hotel.
There is substantial but not complete identity of those individuals in ownership of the
partnership and of the corporation. To a slight degree stock ownership in the hotel
corporation is not represented in the gambling partnership. Upon the matter of control,
however, there is no question. Respondent Hicks is recognized to control both enterprises,
both from point of ownership and, as president, from point of management. Respondent Jones
is a member of the gambling partnership and a stockholder in the hotel corporation.
73 Nev. 115, 126 (1957) Tax Commission v. Hicks
is a member of the gambling partnership and a stockholder in the hotel corporation. He serves
as secretary of both enterprises.
From information available to the members of the commission (including the reports of
the United States Senate committee upon organized crime, commonly known as the Kefauver
committee) it is apparent that among the figures recognized as prominently active in unlawful
gambling beyond the borders of this state and in nationally organized crime are the Lansky
brothers, Meyer and Jake (also known as Jack). The former, in particular, is recognized to
occupy a position of leadership in organized crime. George Sadlo, whose residence for some
time prior to the hearing had been at the Thunderbird hotel, is a close personal friend and
gambling associate of Jake Lansky. They have operated together in management of gambling
enterprises in Florida. Sadlo and Hicks are close personal friends.
In 1947 Hicks borrowed $160,000 from George Sadlo. The money was borrowed for use
by the hotel corporation in the construction of the Thunderbird hotel and was used for that
purpose. At the time of the hearing before the commission it appeared that Jake Lansky had
shared with Sadlo in the making of this loan. Hicks denied any knowledge of Lansky's
participation. In 1954 the loan was repaid to Sadlo by Hicks.
In 1948 Hicks borrowed $37,500 from Sadlo for use by the gambling partnership. The
money was used in the bankroll of the gambling operation, the fund which assures ability to
meet gambling losses. There is no evidence that Lansky participated in this loan. The loan
was repaid by Hicks in 1952. Hicks never reported to the tax commission that either Sadlo or
Lansky held any interest in the hotel corporation or in the gambling partnership.
The ultimate conclusion reached by the tax commission was that respondents Hicks and
Jones were unsuitable persons to hold gambling licenses. Five reasons were assigned for this
conclusion as to Hicks and three reasons as to Jones.
73 Nev. 115, 127 (1957) Tax Commission v. Hicks
reasons as to Jones. The reasons reflect the commission's standards of suitability, to which we
have already referred. By specifying the manner in which Hicks and Jones had failed to
measure up the commission has disclosed its measure to this court.
We shall consider each of the reasons, together with its factual support. It is apparent from
the record, however, that the principal basis for the determination of unsuitability was the
concealment from the tax commission of interests which should have been reported. As to
Hicks it is stated He conspired with citee, Clifford A. Jones, to violate the laws of the State
of Nevada and the rules and regulations of the commission by protecting hidden interests in
citee's gambling operation. Jones is charged with an identical conspiracy with Hicks.
With reference to the necessity to report, the pertinent statutes and rules in effect at the
time of the citation are as follows (with emphasis supplied in each case):
Section 10 (c) of the gambling control act then in effect (sec. 3302.19 NCL 1943-1949
Supp.) provides for the filing of quarterly applications for the issuance or maintenance of
gambling licenses and requires that the application shall include the name of the proposed
licensee, the location of his place or places of business; the gambling game or games to be
operated; the names of all persons directly or indirectly interested in the business and the
nature of such interest.
Commission Rule II 1. provides grounds for revocation or suspension of licenses.
Subparagraph (a) reads, The omission of the name of any person financially participating in
the business, or the taking in of a new partner, or associate without the disclosing of the same
to the Commission, accompanied by the requisite information concerning him and verified by
him, shall be deemed pertinent under this paragraph.
Section 10ff of the statute (sec. 3302.22a NCL 1943-1949 Supp.) provides for hearings
relative to revocation or suspension of licenses and states in part, If upon such hearing the
commission shall be satisfied that the licensee has committed or knowingly permitted a
violation of any of the provisions of this act, or rules and regulations, it shall have the
power to revoke or suspend the license of such licensee summarily."
73 Nev. 115, 128 (1957) Tax Commission v. Hicks
such hearing the commission shall be satisfied that the licensee has committed or knowingly
permitted a violation of any of the provisions of this act, or rules and regulations, it shall have
the power to revoke or suspend the license of such licensee summarily.
The commission's conclusions of law include those to the effect that The investment of
$160,000 by George Sadlo and Jack Lansky in Bonanza Hotel, Inc. to be used for the purpose
of constructing hotel buildings wherein gambling was to be, and was, conducted, gave them
and each of them an indirect and financially participating interest or share in the operation of
citees' gambling establishment in the State of Nevada. Also that The investment of $37,500
by George Sadlo in citees' gambling business for bankroll purposes gave him a direct and
financially participating interest * * *. Also that The individual interests of George Sadlo
and Jack Lansky in citees' gambling operation was a material fact which was required by law
to be reported by the citees to the commission.
[Headnote 11]
Respondents contend that a financially participating interest should be one which gives the
holder a right to share in the profits and operation of the gambling establishment; that only
such an interest could reasonably be regarded as connected with gambling control. The
commission contends that the loan of money itself gave Sadlo and Lansky a financially
participating interest.
It is our view that the language financially participating interest should not be as
narrowly defined as respondents would have it but may reasonably be construed to include
the investment which results when money is lent for the purpose of financing an enterprise.
Otherwise such financial interests as those represented by the corporate bonds of an
incorporated licensee would be excluded. While these do not have the potentially hazardous
effect upon the public welfare which direct operational control would have, still they can be
said to be of material concern to the commission.
We turn first to the $160,000 loan.
73 Nev. 115, 129 (1957) Tax Commission v. Hicks
Hicks testified that this was a personal loan to him. Many peculiar circumstances were
connected with the loan. The explanations may well have appeared inadequate to the
commission. Circumstances involving tampering with corporate records, the time and method
of payment, the failure to produce evidence which should have been available, all might have
led to an inference that Hicks and Jones were seeking to hide or misrepresent the facts. There
was a newspaper report of an admission by Jones of a Lansky interest, which report was not
met in a forthright manner by Jones as we shall later discuss. There is no question of the
purpose for which the loan was made or of the use to which it was put. It directly benefited
the hotel corporation. The device of a personal loan to avoid direct involvement in an
enterprise, if held to be legally effective under circumstances such as these, could seriously
hamper the commission's control over the qualifications of its applicants and licensees. Under
the circumstances the commission was justified in concluding that the loan was in actual fact
an investment in the hotel corporation. It may be said, then, that Sadlo and Lansky have been
shown to have possessed a financially participating interest in the hotel corporation.
[Headnotes 12, 13]
But is this an interest in the gambling operation? It is to be noted that the commission has
not concluded that a direct interest in the gambling operation was given. It has limited its
findings to an investment * * * in Bonanza Hotel, Inc. from which it has concluded, as
matter of law, that an indirect interest in the gambling partnership resulted. In support of its
position it has made the following conclusion of law: That the separate and individual
entities of Thunderbird Hotel Company, a copartnership, and Bonanza Hotel, Inc., a
corporation, should be disregarded and should be considered as merged into the one entity
owned by citees and controlled and operated by citee Marion B. Hicks.
The theory of corporate entity is simply that a corporation possesses a legal entity apart
from the people who compose it.
73 Nev. 115, 130 (1957) Tax Commission v. Hicks
who compose it. In a proper case the theory is disregarded when it serves as a shield against
justice. The commission's position appears to be that the corporation was so closely related to
the partnership that an interest in one was for all practical purposes an interest in the other.
There might be some practical merit in such a contention in the case of an interest which
carries a measure of operational control. Such is not the case here. The interest was a mere
financial investment. It was the corporation's obligation to repay which created the interest.
The theory of corporate entity prevents that obligation from being transformed into a
partnership obligation. If the partnership cannot be said to have been legally obligated to
repay the debt it cannot be said that the loan constituted any kind of financially participating
interest in the partnership. The commission erred as a matter of law in concluding that the
corporate debt constituted a financially participating interest in the partnership.
This is not to say that the commission may not require such an interest in such a closely
related enterprise to be reported. However, it has not made such a requirement. The Sadlo
loan was not the only one which was taken by the hotel corporation for its construction of the
hotel building. A substantial bank loan was taken. No question has been raised over the
failure to report the bank loan. No suggestion is made that the bank thereby acquired a
financially participating interest in the gambling operation. The bank itself might be
somewhat startled to learn that such is the view of the commission. The fact would appear to
be that the commission was concerned not so much with the nature of the interest as with the
identity of those who had acquired it. In the case of the Lanskys any Nevada business activity
at all would have been of interest to the commission.
But if wrongfulness is to attach to a failure to report, the duty to report must appear with
reasonable clarity. Wrongfulness, such as is charged against Hicks and Jones, cannot be
established by showing a failure to report gratuitously that which is not required but
which simply might have been expected to have been of interest to the commission.
73 Nev. 115, 131 (1957) Tax Commission v. Hicks
Jones, cannot be established by showing a failure to report gratuitously that which is not
required but which simply might have been expected to have been of interest to the
commission.
We conclude that there is no evidence to support a finding of wrongful concealment of the
$160,000 loan.
The $37,500 loan is troublesome from a different angle. This money was invested by
Sadlo directly in the gambling operation itself. As such it constituted a financially
participating interest and was reportable. Our difficulty is that it is impossible to determine
from the record whether the commission, in its determination of unsuitability, has placed
significance upon these facts standing alone.
It would appear that the commission's concern with a Sadlo interest was primarily that it
led to a Lansky interest which latter was considered highly objectionable. There is no
suggestion that Lansky was concerned with this loan. It would appear from the language used
in stating the ground of unsuitability, which we have already quoted, that a mere failure to
report was not regarded as sufficient to constitute unsuitability. The use of such terms as
conspired and hidden interests indicate that an innocent failure to report was not regarded
as material but that an intent deliberately to mislead the commission was regarded as
material. Such an intent might well have been inferred as to the larger loan. However, the
suspicious circumstances in connection with that loan, to which we have already referred, are
lacking in this case.
On the other hand, other conclusions of the commission might be said to indicate that a
knowing failure to report in and of itself was considered significant.
The record is susceptible of either one of two conclusions. It might be inferred that failure
to report was innocently due to a belief that the Sadlo investment did not constitute a
reportable interest. On the other hand, it might be presumed that Hicks had knowledge that
the interest was reportable and that his failure to report was with knowledge and to that extent
was willful.
73 Nev. 115, 132 (1957) Tax Commission v. Hicks
As to this loan we conclude that there is evidence to support a conclusion that Hicks
knowingly failed to report the Sadlo interest. There is no substantial evidence to support a
conclusion that he willfully and deliberately acted to conceal the interest from the
commission other than through a failure to report it. A determination as to the significance of
these facts remains for the commission to make with clearer expression than is now to be
found.
[Headnote 14]
As to Jones there is no evidence that he knew of the $37,500 loan. If his knowledge is to
be established by inference and his failure to report is to be held not innocent, the conclusion
of a willful failure to report the interest is reached by mounting one inference upon another or
an inference upon a presumption. It cannot be said that this constitutes substantial evidence.
As to Hicks, four other grounds of unsuitability have been specified. It is found that he
attempted unlawfully to hypothecate capital stock of the Bonanza Hotel, Inc. It is admitted
that he offered stock to Sadlo as security for the $160,000 loan which offer Sadlo rejected.
Under commission rules existing at the time of the hearing such a hypothecation must have
commission approval, which Hicks had not sought. This rule, however, was not in effect at
the time the stock was offered to Sadlo. There is no evidence to support this ground.
It is further found that Hicks became a business partner of George Sadlo who is known to
him to be a person or an associate of persons involved in underworld activities and leaders of
organized crime in the United States. The proof upon this finding is slight. Hicks denies any
such partnership. Sadlo's Federal income tax returns, which were received in evidence by the
commission, disclose in one year a report of a capital gain. This page of the return form
contains a blank in which the names of the taxpayers are to be set forth. The names of George
Sadlo and Marion Hicks were set forth. Respondents contend that this was obviously a
stenographic error. The court below so regarded it. Hicks failed to present any proof to this
effect or to make any explanation whatsoever.
73 Nev. 115, 133 (1957) Tax Commission v. Hicks
failed to present any proof to this effect or to make any explanation whatsoever. We cannot
say that a reasonable mind, in absence of proof one way or the other, could not infer that this
was no error but constituted an accurate although gratuitous statement of the source of the
capital gain. We conclude that there is support for this finding.
It is further found that Hicks employed key personnel in the operation of citees' gambling
business, knowing them to be former employees and associates of persons known to be
leaders of organized crime in the United States. This is not denied and is amply supported by
the record.
Finally it is found that Hicks' association with George Sadlo on citees' gambling premises
attracted undesirable underworld characters and leaders in organized and nation-wide crime
to the State of Nevada. The record establishes that Sadlo's presence at the Thunderbird hotel
attracted Jake Lansky (and, on rarer occasions, Meyer Lansky) to that hotel. It does not appear
that Hicks' association with Sadlo, other than through permitting him to maintain residence at
the hotel, had any bearing upon the matter. If Hicks is to be deemed unsuitable for the reason
that he permitted Sadlo to maintain a room at the hotel, or for the reason that he simply
associated with a man who had undesirable social or business connections, the finding should
be more specific to this effect. We reserve judgment on the question whether such a ground
of unsuitability can be said to be reasonably connected with gambling control. The finding, as
stated, is not supported by the evidence.
As to Jones there are two remaining grounds of unsuitability. First, He knew that said
hidden-interest holders in citees' gambling establishment would attract undesirable
underworld characters and leaders of organized and nation-wide crime to the State of
Nevada. We have already concluded that there is no proof that Jones had knowledge of any
hidden interest in the gambling operation. This finding falls with that of the protection of
hidden interests.
73 Nev. 115, 134 (1957) Tax Commission v. Hicks
The final ground for Jones' unsuitability is that he refused to voluntarily disclose to the
commission at an investigative hearing certain material evidence affecting his qualifications
to hold a gambling license on the ground that such evidence was not required to be disclosed
for the reason that it was a privileged communication between attorney and client when he
knew that same was not properly classified as privileged. This ground, as we construe it,
might be said to be that Jones, as a licensee, had not responded to commission inquiry in the
forthright manner which the commission has every right to demand of its licensees or
applicants.
The commission was faced with a report by a Clark County newspaper that Jones, as an
attorney, had boasted to a prospective client that his influence with the tax commission was
such that although the commission knew that the Lansky brothers held hidden interests in the
Thunderbird hotel it took no action. The commission, at a preliminary investigative hearing,
examined Jones as to the accuracy of the news report. Jones denied that the Lanskys held any
hidden interest in the Thunderbird hotel, but refused to answer the commission's questions
relative to his reported conversation upon the ground that any statements made by him would
constitute a privileged communication between attorney and client. He suspected that his
conversation had been recorded and demanded that the record first be played. He suspected
that the prospective client was not such in fact, but was an employee of the newspaper
seeking to discredit him politically. Until he could be sure of his relationship he stood upon
privilege. No recording was ever produced. Four months later, at the show-cause hearing
before the commission, he testified freely and denied all statements attributed to him. He
explained that he had since learned that the prospective client was not such in fact and felt
free to testify.
[Headnote 15]
His conversation with the prospective client, however, was not in confidence. A third
person was present. Privilege, therefore, did not exist. See: 70 C.J. 433, Witnesses sec.
73 Nev. 115, 135 (1957) Tax Commission v. Hicks
Witnesses sec. 583. Furthermore, Jones must have been thoroughly familiar with the
statements attributed to him by the newspaper for it was upon that news report that the
investigative hearing, in large part, was based. If the reported statements had not been made
by him, he could have denied making them without violating any professional confidence.
There is substantial evidence to support this ground.
We are faced once again with the necessity for respecting the limits of judicial
participation in matters of gambling control. We have determined that while, in large part, the
commission's assignments of unsuitability are not supported by the evidence, in other respects
they are. Once again we note that it is not for the courts to fix the standards by which
suitability is to be determined. It is not for us to hold that, upon those commission findings
which are supported by substantial evidence, Hicks and Jones are or are not to be held
suitable to hold gambling licenses. That determination remains for the tax commission to
make.
[Headnote 16]
However, some certainty should attach to the status of respondents by virtue of this
judicial review and some stability should attach to our decision. Since what the commission
has treated as the major offenses are without substantial evidentiary support, we feel that our
proper course is to reverse the commission, accepting the apparent basis to be the true basis
for its action. Our decision is without prejudice to the right of the commission, in any future
proceedings it may choose to take (and in absence of waiver) to consider the status of
respondents upon the basis of the offenses here established by evidence.
Upon the reversal of commission action, the court below is affirmed. The suspension order
of the commission is hereby set aside.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 136, 136 (1957) Quimby v. City of Reno
THE STATE OF NEVADA, Upon The Relation of GEORGE D. QUIMBY and CLARA
QUIMBY, Appellants, v. CITY OF RENO, a Municipal Corporation, Francis R. Smith,
Mayor and William A. Ligon, Charles E. Cowen, Edwin S. Semenza, Thomas H. Harvey,
John T. Myles and Marshall Guisti, Councilmen of Said City, Respondents.
No. 3924
May 10, 1957 310 P.2d 850
Appeal from the Second Judicial District Court, Washoe County; Merwyn H. Brown,
Presiding Judge.
Proceeding in nature of quo warranto challenging action of City of Reno in annexing
certain territory, on contention that petition was not supported by majority of property owners
as required by charter. The lower court rendered order granting motion for involuntary
dismissal, and relators appealed. The Supreme Court, Merrill, J., held that for purposes of
determining whether majority of property owners have signed petition for annexation of
territory to city, where undivided interests in property are owned by two or more persons, in
joint tenancy or co-tenancy, regardless of whether they are husband and wife, each qualifies
independently as a property owner.
Reversed and remanded for further proceedings.
See also 71 Nev. 144, 282 P.2d 1071, 72 Nev. 228, 301 P.2d 1050.
R. K. Wittenberg, of Reno, and Harvey Dickerson, Attorney General, for Appellants.
Samuel D. Francovich, Bruce D. Roberts, and Sidney W. Robinson, all of Reno, for
Respondents.
1. Quo Warranto.
Where, after city annexed land, the land was thereafter formally annexed to the city by legislative act,
proceeding in nature of quo warranto challenging action taken by city in annexing the land could relate
only to such rights as might have arisen between date of city's action and date of legislative annexation. St.
1947, ch. 102, sec. 10.505.
73 Nev. 136, 137 (1957) Quimby v. City of Reno
2. Appeal And Error.
In determining propriety of trial court's granting motion for involuntary dismissal at close of relators'
case, relators' evidence and all inferences that could be drawn from it, were required to be admitted, and
evidence was required to be interpreted in light most favorable to relators.
3. Quo Warrento.
In action in nature of quo warranto challenging city's annexation of territory on contention that petition
was not supported, as required by city charter, by majority of property owners, showing that majority of
taxpayers had not signed petition raised inference favorable to relators that those named as taxpayers
owned interest in real property, as any distinction between taxpayers and property owners was not material,
making it improper for trial court to grant voluntary nonsuit at close of relators' evidence.
4. Municipal Corporations.
For purposes of determining whether majority of property owners have signed petition for annexation of
territory to city, where undivided interests in property are owned by two or more persons, in joint tenancy
or co-tenancy, regardless of whether they are husband and wife, each qualifies independently as a property
owner. St.1947, ch. 102, sec. 10.505.
OPINION
By the Court, Merrill, J.:
[Headnote 1]
This is a proceeding in the nature of quo warranto challenging the action of the city of
Reno, taken April 12, 1954, in annexing a certain area to the city. Relators, as property
owners within the area affected, contend that the annexation was not supported by the petition
of a majority of the property owners of the district proposed to be annexed as is required by
the city charter. 1947 Stats.Nev. 392, sec. 10.505, Art. XII. Since the city's action the district
has been lawfully annexed by legislative act. The present proceedings relate only to such
rights as may have arisen between the date of the city's action and the date of the legislative
annexation. St. ex rel. Quimby v. City of Reno, 72 Nev. 228, 301 P.2d 1050.
[Headnote 2]
The trial court entered judgment for the city upon its motion for involuntary dismissal at
the close of relators' case.
73 Nev. 136, 138 (1957) Quimby v. City of Reno
case. This action is assigned as error. In determining this question relators' evidence and all
inferences that can be drawn from it, must be deemed admitted and the evidence must be
interpreted in the light most favorable to relators. Kilb v. Porter, 72 Nev. 118, 295 P.2d 856;
Gordon v. Cal-Neva Lodge, 71 Nev. 336, 291 P.2d 1054; Corn v. French, 71 Nev. 280, 289
P.2d 173.
The petitions for annexation introduced in evidence showed a total of 315 property owners
petitioning for annexation. From the 1954 tax roll for the county it appeared that 470 persons
listed as real estate taxpayers in the area involved had not signed petitions for annexation. In
addition, the record shows that 48 persons who had originally signed petitions for annexation
as property owners and whose names did not appear on the tax roll had retracted their action.
A total of 518 property owners not signing the annexation petitions is thus shown. The theory
of the relators, quite simply, is that since they had proven that more property owners had
failed to sign than had signed, they had established that a majority had not signed. This
conclusion would appear inescapable.
[Headnote 3]
The city makes two contentions: First, that proof of taxpayers does not meet requirement
of proof of property owners. There may be some technical distinction in definition of the two
terms, but it cannot be material here. Certainly it must be said that an inference favorable to
the relators arises from the tax roll to the effect that those named as real estate taxpayers
owned an interest in real property in the area involved.
The city next contends that the ownership of a husband and wife must be regarded as a
single ownership. By the city's computation this would leave the petitioners in the majority.
Relators contend, in opposition, that both husband and wife should have the right to
expression upon the issue of annexation, provided only that each qualifies as property owner.
Surprisingly, no party has been able to cite us authority on this question.
73 Nev. 136, 139 (1957) Quimby v. City of Reno
The city has presented authority to the effect that where the ownership of husband and
wife is in the form of community property the husband has the right to speak for both under
his power of management. This proposition is not controlling here, however. There is no
proof of community ownership in any case. It was stipulated in the court below that where
ownership is shown to be in husband and wife it is owned either in joint tenancy or
co-tenancy. The undivided property interests of husband and wife may be separate as well as
community and the court is required at this stage of the proceedings to give to the evidence
the interpretation most favorable to the relators. In this case this would defeat any contention
of community ownership.
[Headnote 4]
Where undivided interests in property are owned by two or more persons, each can
certainly qualify independently as a property owner. We see no reason for excepting married
owners from such rule.
We conclude that with evidence produced and the inferences that can be drawn from it in
favor of the relators, they have made out a case which requires an answer by the city. The trial
court, then, was in error in ordering dismissal.
Reversed and remanded for further proceedings.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 140, 140 (1957) Mills v. Searchlight Mercantile Co.
HOMER C. MILLS, Appellant, v. SEARCHLIGHT MERCANTILE COMPANY,
a Corporation, Respondent.
No. 3962
May 14, 1957 311 P.2d 412
Appeal from judgment of Eighth Judicial District Court, Clark County; A. S. Henderson,
Judge, Department No. 2.
Suit on mining lease alleging default in payment of accrued rentals and other defaults in
performance and praying for restitution of premises and damages. The trial court entered
judgment for owner of premises and lessee appealed. The Supreme Court, Badt, C. J., held
that evidence supported finding that lessee had failed to pay accrued rentals and had
committed other breaches of covenants of lease.
Affirmed.
Appellant in propria persona.
McNamee & McNamee and McDonald and Denton, all of Las Vegas, for Respondent.
1. Trial.
In action to terminate mining lease, there was no error in admitting testimony of witness as to certain
conclusions, where such testimony was admitted without objection.
2. Mines And Minerals.
In action to terminate mining lease, evidence supported finding that lessee had failed to pay accrued
rentals and had committed other breaches of covenents of the lease.
OPINION
By the Court, Badt, C. J.:
Plaintiff sued on a mining lease, alleged default in payment of agreed rentals and asserted
numerous other defaults in performance. It prayed for restitution of the premises, termination
and forfeiture of the lease, for the rentals due, for treble rental by reason of the unlawful
detention, for damages, costs and further relief. The answer placed these allegations in
issue and alleged that about a year prior to the execution of the lease plaintiff had
entered into an option agreement with defendant concerning the same property, as
provided in the following clause: "As one of the considerations for this option, optionor
agrees that when, as and if the said optionee has executed the lease attached hereto and
marked Exhibit A, and when, as and if the optionee, as lessee under said lease, has paid to
the optionor, the first party herein, by way of royalties or otherwise, the sum of $10,000
within a period of two years from and after the date of said lease, and has duly performed
under the terms of said lease, then the owner of the property, the optionor herein, will
execute in favor of the optionee, and deliver to said optionee herein a written option to
purchase the above described properties at and for the sum of $175,000 * * *"; that
defendant did enter into the lease without prejudice to the existing option agreement;
that it was the intent and purpose of these instruments to permit defendant to have two
years from the execution of the lease, namely, up to January 7, 1949, within which to
exercise the option by the payment of $10,000, or by an offer to pay said sum with the
balance payable out of royalty earnings; that defendant had assigned all his rights under
these instruments to Searchlight Consolidated Mining and Milling Co., a corporation,
which corporation had since been and still was in possession and had expended large
sums on exploration and development; that plaintiff had refused to carry out the terms of
the option agreement and had let another corporation into possession of parts of the
premises.
73 Nev. 140, 141 (1957) Mills v. Searchlight Mercantile Co.
answer placed these allegations in issue and alleged that about a year prior to the execution of
the lease plaintiff had entered into an option agreement with defendant concerning the same
property, as provided in the following clause: As one of the considerations for this option,
optionor agrees that when, as and if the said optionee has executed the lease attached hereto
and marked Exhibit A, and when, as and if the optionee, as lessee under said lease, has paid
to the optionor, the first party herein, by way of royalties or otherwise, the sum of $10,000
within a period of two years from and after the date of said lease, and has duly performed
under the terms of said lease, then the owner of the property, the optionor herein, will execute
in favor of the optionee, and deliver to said optionee herein a written option to purchase the
above described properties at and for the sum of $175,000 * * *; that defendant did enter
into the lease without prejudice to the existing option agreement; that it was the intent and
purpose of these instruments to permit defendant to have two years from the execution of the
lease, namely, up to January 7, 1949, within which to exercise the option by the payment of
$10,000, or by an offer to pay said sum with the balance payable out of royalty earnings; that
defendant had assigned all his rights under these instruments to Searchlight Consolidated
Mining and Milling Co., a corporation, which corporation had since been and still was in
possession and had expended large sums on exploration and development; that plaintiff had
refused to carry out the terms of the option agreement and had let another corporation into
possession of parts of the premises. The allegations of the answer were put in issue by a reply.
The case was tried to the court without a jury, and the court found the execution of an
option agreement on February 10, 1946, which contained the option to enter into a lease
which was executed January 7, 1947, which in turn contained the option to purchase
involving a down payment of $10,000 which had been neither paid nor tendered; that sundry
rentals were in arrears and the covenants of the lease in other respects breached by the
defendant. As conclusions, it found that the plaintiff was entitled to judgment declaring the
lease terminated and forfeited, for the accrued unpaid rentals and costs, but for no
damages.
73 Nev. 140, 142 (1957) Mills v. Searchlight Mercantile Co.
was entitled to judgment declaring the lease terminated and forfeited, for the accrued unpaid
rentals and costs, but for no damages.
The defendant tried his case in propria persona and, as appellant, filed his brief in propria
persona containing eight assignments of error unsupported by a single citation of authority.
We have given the appeal such consideration as appellant's briefs and the circumstances have
warranted without our entering into a complete research on our own part to determine
whether there is any support in law for the assignments of error. Our discussion is, therefore,
necessarily brief.
[Headnotes 1, 2]
The assignments of error and our disposition thereof are as follows: (1) That the court
erred in denying a postponement. In this we find no abuse of discretion. (2) That the court
erred in permitting plaintiff's witness to testify to certain conclusions. This was during
defendant's absence from the court room in the period from which the postponement had been
denied. Accordingly, the testimony went in without objection. As we have held that the denial
of the postponement was not an abuse of discretion, it must follow that the admission of the
testimony, without objection, was not error. (3) That the court erred in denying defendant's
motion for nonsuit because plaintiff had failed to prove the material allegations of its
complaint. An examination of the record shows this assignment to be without merit. (4) That
the evidence was insufficient to support the judgment. This assignment is likewise without
merit, as there is in the record substantial evidence of the defendant's failure to pay the
accrued rentals in arrears and other breaches of the covenants of the lease.
Appellant has assigned as error other actions and determinations of the trial court.
However, he has failed to make clear to this court the legal significance of such assignments
of error or his position upon the law in reference thereto and has failed to cite any authority to
this court which would clarify his position and support it.
73 Nev. 140, 143 (1957) Mills v. Searchlight Mercantile Co.
it. As to these assignments we rule that no issue of law has been sufficiently presented for our
determination.
Affirmed with costs.
Eather and Merrill, JJ., concur.
____________
73 Nev. 143, 143 (1957) Wilkinson v. Wilkinson
GEORGE E. WILKINSON, Appellant, v. VELMA L.
WILKINSON, Respondent.
No. 3932
May 21, 1957 311 P.2d 735
On motion to dismiss.
Divorced husband made a motion to dissolve order, which implemented divorce decree,
and which restrained divorced husband from disposing of any of his property. The divorced
wife made a motion for allowances to permit her to defend against the divorced husband's
motion. The Second Judicial District Court, Washoe County, A. J. Maestretti, Judge,
Department No. 2, entered an order requiring divorced husband to pay divorced wife $500
preliminary counsel fees, and divorced husband appealed, and divorced wife made a motion
to dismiss the appeal. The Supreme Court held that the order was not in the nature of an
order made after final judgment within meaning of Rule of Civil Procedure providing that
an appeal may be taken from any special order made after final judgment, and that the order
was not appealable.
Appeal dismissed.
(Petition for Rehearing denied May 21, 1957.)
Oliver C. Custer, of Reno, for Appellant.
Gordon C. Shelley and Harry A. Busscher, both of Reno, for Respondent.
73 Nev. 143, 144 (1957) Wilkinson v. Wilkinson
1. Appeal And Error.
Mere fact that order in point of time is made after a final judgment has been entered does not render the
order appealable, and the order must affect the rights of the parties growing out of final judgment. Rules of
Civil Procedure, Rule 72(b).
2. Appeal And Error.
Order requiring divorced husband to pay divorced wife preliminary counsel fees to defend divorced
husband's motion to dissolve restraining order, which implemented divorce decree, and which restrained
divorced husband from disposing of any of his property, was not in the nature of an order made after final
judgment within meaning of Rule of Civil Procedure providing that appeal may be taken from any special
order made after final judgment, and it was not appealable. Rules of Civil Procedure, Rule 72(b).
OPINION
On Motion To Dismiss
Per Curiam:
This is an appeal from order of the trial court granting preliminary counsel fees.
In the action below a decree of divorce was granted to respondent wife in 1952 which
decree also made provisions relative to custody of the minor children and the settlement of
the property rights of the parties. On March 26, 1953, implementing that decree of divorce, an
order was made by the trial court restraining the appellant husband from disposing of any of
his property. On November 15, 1955 a motion was made by appellant husband to dissolve the
restraining order upon the ground that the need for it no longer existed. Respondent wife then
moved the court for allowances to permit her to defend against appellant's motion. The court
ordered the payment of $500 preliminary counsel fees. From that order this appeal is taken.
Respondent has moved to dismiss the appeal upon the ground that it is not an appealable
determination under Rule 72(b) NRCP. That rule provides that an appeal may be taken from
any special order made after final judgment. The question presented by the motion to
dismiss is whether this appeal is from such an order.
73 Nev. 143, 145 (1957) Wilkinson v. Wilkinson
[Headnote 1]
The mere fact that the order in point of time is made after a final judgment has been
entered does not render it appealable. It must affect the rights of the parties growing out of
final judgment. Tardy v. Tarbell, 54 Nev. 342, 16 P.2d 656.
[Headnote 2]
The order here bears no relation to the final judgment or to its operation or enforcement. It
relates instead to the proceedings which remain pending, and in relation to those proceedings
is ancillary and interlocutory to the same degree as an order for allowances pending final
decree is ancillary and interlocutory to the principal action. The nature of this order, then, is
not that of an order after final judgment but of an interlocutory order ancillary to pending
proceedings.
Appeal dismissed.
____________
73 Nev. 145, 145 (1957) Bynum v. Frisby
HARVEY A. BYNUM, Appellant, v. GEORGE W.
FRISBY, Respondent.
No. 3967
May 22, 1957 311 P.2d 972
Appeal from judgment of the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge, Department No. 2.
Action for a declaration of rights of the parties under assignment of an interest in
partnership to plaintiff and for an accounting. The trial court rendered judgment for
defendants and plaintiff appealed. The Supreme Court, Merrill, J., held that under assignment
of an interest in partnership, assignee was entitled to share in all rights which partnership
possessed and was entitled to an accounting of partnership assets existing at time of
dissolution or disposed of after assignment and prior to dissolution.
Reversed and remanded for new trial.
73 Nev. 145, 146 (1957) Bynum v. Frisby
Roy Earl, Edwin J. Dotson, and George E. Marshall, all of Las Vegas, for Appellant.
G. William Coulthard, of Las Vegas, for Respondent.
1. Partnership.
Under assignment of 20 percent interest in partnership, assignee was entitled to share in all rights which
partnership possessed and to an accounting of partnership assets existing at time of dissolution of
partnership or disposed of after assignment and prior to dissolution, and the value or realization price of
such assets must be taken into consideration in determining whether a surplus existed at time of dissolution
in which assignee was entitled to share, and the extent of any such surplus. NRS 87.270, subds. 1, 2.
2. Partnership.
Under statute, assignment of an interest in partnership, in absence of agreement, does not create a
fiduciary relationship between assignee and partners or require partners to resort to dissolution in order to
prevent such relationship from arising, and assignee remains a stranger entitled only to share in
partnership's worth and to demand an accounting upon dissolution. NRS 87.270, subds. 1, 2.
3. Partnership.
Under assignment of an interest in partnership, expressly declaring substantially in language of statute
that assignee was not a partner, assignee was not entitled to participate in partnership affairs or in any
related matters in which partners might engage outside of partnership entity. NRS 87.270, subds. 1, 2.
4. Trusts.
Where partners, after assignment of interest in partnership, expressly declaring that assignee was not a
partner, formed, with others, a corporation which acquired right to purchase premises leased by partnership
and surrounding land, and thereafter one partner's interest in corporation and partnership was purchased by
copartner, and land held by corporation, including partnership leasehold, was sold at a substantial profit, no
constructive trust of corporate holdings existed in favor of partnership or assignee and, though purchase of
copartner's interest in partnership resulted in dissolution thereof, purchaser was not required to account to
assignee for any equitable interest in corporate holdings of former partners. NRS 87.270, subds. 1, 2.
OPINION
By the Court, Merrill, J.:
This is an appeal taken by the plaintiff below from judgment rendered in favor of
defendant. The action essentially is for an accounting of partnership profits.
73 Nev. 145, 147 (1957) Bynum v. Frisby
essentially is for an accounting of partnership profits. The principal question involved is
whether a constructive trust should be imposed upon proceeds of a transaction to which the
partners in a corporate capacity were parties.
In 1945 respondent Frisby and one Dave Anderson, as partners doing business under the
name of Club Kit Carson, took a ten-year lease on premises in Clark County, Nevada, and
constructed a building to house a casino and dining hall. In 1946 the partnership entered into
a written agreement with appellant Bynum which recited the existence of the partnership and
of the lease held by it and that Bynum had rendered services for which he was entitled to
compensation. The agreement constituted an assignment to Bynum of a twenty per cent
interest of, in and to that certain co-partnership * * * known as and called Club Kit Carson'.
It further provided, It is understood and agreed between the parties hereto that the Party of
the Second Part is not a partner with the Parties of the First Part in said Club Kit Carson', nor
shall said Second Party be permitted to interfere in the management or administration of the
partnership business and affairs or to acquire any information or account of partnership
transactions, or to inspect the partnership books, but shall be entitled to receive, in accordance
with this contract, twenty percent (20%) of the profits to which the Parties of the First Part
would otherwise be entitled, and in case of a dissolution of said partnership, the Party of the
Second Part shall be entitled to receive from the Parties of the First Part said twenty percent
(20%) interest, and may require an account from the date of the last account agreed to
between the Parties of the First Part.
In 1949 Anderson and Frisby with two others formed a corporation known as Anderson &
Frisby, Inc., which secured rights to purchase of the land leased by the partnership together
with a considerably larger piece of land surrounding the leased premises. Bynum was given
no notice of this action by Anderson and Frisby. Later that year, November 30, 1949, Frisby
bought Anderson's interest in both corporation and partnership, and it is agreed that
dissolution of the partnership thereby resulted.
73 Nev. 145, 148 (1957) Bynum v. Frisby
agreed that dissolution of the partnership thereby resulted. Subsequently the land held by the
corporation was sold at a substantial profit. Included in the sale was the Club Kit Carson
leasehold.
This action was brought by Bynum in 1954 asking a declaration of his rights under his
agreement with the partnership and an accounting to establish the extent of his 20-percent
interest. Summary judgment in favor of Frisby was granted by the trial court, from which an
appeal was taken to this court. We remanded the case for trial. Bynum v. Frisby, 70 Nev. 535,
276 P.2d 487. Following trial judgment in favor of Frisby was rendered and this appeal has
been taken by Bynum.
The trial court ruled that the accounting made by Frisby demonstrated that no profits had
been realized by the partnership and that nothing was due to Bynum upon his agreement.
Bynum contends that the accounting was insufficient in that no accounting was given as to
the extent of partnership assets held at the time of dissolution. The record demonstrates that
the partnership, at the least, had as assets certain fixtures in the casino building and a lease
upon the premises which had some five to six years to run. Bynum was not permitted to
inquire as to the value of the leasehold.
Frisby contends that under his agreement Bynum did not receive any interest in the
partnership assets; that his interest was confined to a 20-percent share of the profits of the
partnership. Frisby's construction of the word profits is that it is limited to such profits as
may have been realized by the partnership as a going concern and cannot include any profit or
surplus realized from disposition of partnership assets.
[Headnote 1]
This construction is not warranted by the language of the agreement. Bynum was assigned
a 20-percent interest in the partnership which would entitle him to share in all rights which
the partnership possessed.
We conclude that under his agreement Bynum was entitled to an accounting of partnership
assets existing at the time of dissolution or disposed of prior thereto and subsequent to the
date of his assignment. The value or realization price of such assets must be taken into
consideration in determining whether a surplus existed at the time of dissolution in which
he was entitled to share, and the extent of any such surplus.
73 Nev. 145, 149 (1957) Bynum v. Frisby
or realization price of such assets must be taken into consideration in determining whether a
surplus existed at the time of dissolution in which he was entitled to share, and the extent of
any such surplus.
Bynum also contends that among the partnership assets in which he is entitled to share was
an equitable interest in the Frisby and Anderson corporate holdings arising by virtue of
constructive trust. He contends that a fiduciary relationship existed between himself and the
partners which required that they notify him of their corporation's plan to purchase the leased
premises and surrounding land and permit him to participate; that because of their failure so
to act they held their interests in the land as constructive trustees. Bynum relies upon
Meinhard v. Salmon, 249 N.Y. 458, 164 NE 545, 62 A.L.R. 1, and cases which have
followed that leading decision. That case dealt with a coadventure. There can be no question
of the rule in such cases or where a partnership or agency relationship exists or that of
corporate shareholder and officer. In such cases the fiduciary duty is clear. It is not so here.
Bynum was expressly declared not to be a partner. He was a simple assignee.
NRS 87.270 deals with the assignment of a partner's interest. It provides: 1. A
conveyance by a partner of his interest in the partnership does not of itself dissolve the
partnership, nor, as against the other partners in the absence of agreement, entitle the
assignee, during the continuance of the partnership, to interfere in the management or
administration of the partnership business or affairs, or to require any information or account
of partnership transactions, or to inspect the partnership books; but it merely entitles the
assignee to receive in accordance with his contract the profits to which the assigning partner
would otherwise be entitled.
2. In case of a dissolution of the partnership, the assignee is entitled to receive his
assignor's interest and may require an account from the date only of the last account agreed to
by all the partners.
[Headnote 2]
It is clear from this provision that an assignment of a partnership interest from one partner
to a stranger does not bring that stranger into fiduciary relationship with the remaining
partners nor require them to resort to dissolution in order to prevent such a relationship
from arising.
73 Nev. 145, 150 (1957) Bynum v. Frisby
does not bring that stranger into fiduciary relationship with the remaining partners nor require
them to resort to dissolution in order to prevent such a relationship from arising. The stranger
remains a stranger entitled only to share in the partnership's worth and to demand an
accounting upon dissolution.
[Headnote 3]
The agreement upon which Bynum relies, as we have quoted it, is substantially in the same
language as the quoted statutory provision. While Bynum as the partial assignee of the active
partners themselves was hardly in the position of an unwelcome stranger, it is clear that the
partners intended that he be as completely excluded from partnership affairs as though he
were. He had no right to participate in partnership affairs nor any right to expect that he be
permitted to participate in any related matters in which the partners might engage outside of
their partnership entity.
[Headnote 4]
We conclude that no constructive trust of corporate holdings existed in favor of the
partnership or of Bynum as assignee; that Frisby's accounting of partnership assets need not
include such interests.
Reversed and remanded for further accounting as to partnership assets in accordance with
this opinion and for new trial in connection with such accounting.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 151, 151 (1957) Taylor v. State of Nev. and University of Nev.
RAYMOND E. TAYLOR, Appellant, v. THE STATE OF NEVADA and
THE UNIVERSITY OF NEVADA, Respondents.
No. 3950
May 27, 1957 311 P.2d 733
Appeal from the Second Judicial District Court, Washoe County; Gordon W. Rice, Judge,
Department No. 3.
Personal injury action against state and state university. From judgment of the lower court
dismissing the action, the plaintiff appealed. The Supreme Court, Merrill, J., held that
purchase of indemnifying insurance by defendants with funds provided by state legislature
could not be held to constitute waiver of governmental immunity from suit extent of
insurance coverage.
Judgment affirmed.
Stewart & Horton, of Reno, for Appellant.
Harvey Dickerson, Attorney General, of Carson City; Vargas, Dillon & Bartlett and Alex
A. Garroway, of Reno, for Respondents.
1. Pleading.
Under rule providing that no technical forms of pleading are required but only short and plain statement
of claim, pleading of conclusions, either of fact or of law, is sufficient providing allegation is sufficiently
definite to give fair notice of nature and basis or grounds of claim and a general indication of type of
litigation involved. Rules of Civil Procedure, Rule 8.
2. States.
Allegation that defendants, State of Nevada and University of Nevada, waived their immunity from suit
for cause set forth in complaint failed to give notice of nature of claim to waiver or of issues which might
be involved in litigation, and rendered complaint deficient. Rules of Civil Procedure, Rule 8.
3. States.
Purchase of indemnifying insurance by state and state university with funds provided by state legislature
could not be held to constitute a waiver of governmental immunity from suit to extent of insurance
coverage.
73 Nev. 151, 152 (1957) Taylor v. State of Nev. and University of Nev.
4. States.
Sovereign immunity of state from suit cannot be taken away by courts or individual officers of heads of
governmental departments but only by legislature, and if waiver of immunity from suit is not expressed,
implication of waiver must flow with reasonable and persuasive clarity from legislative act.
5. States.
Dismissal of action without granting leave to amend complaint was not abuse of discretion when basis of
action depended upon waiver of immunity from suit and factual basis for claim of waiver was regarded by
trial court as insufficient in law to constitute a waiver.
OPINION
By the Court, Merrill, J.:
This is an action for personal injuries resulting from negligence. The appeal is taken by the
plaintiff below from judgment of the trial court dismissing his action against the State of
Nevada and the University of Nevada for failure of the complaint to state a claim upon which
relief might be granted. The basis of the court's action was the failure of the complaint to
plead a waiver of sovereign immunity from suit.
[Headnote 1]
The complaint alleged That the defendants, the State of Nevada and University of
Nevada, have waived their immunity from suit for the cause herein set forth. The trial court
held this allegation insufficient, relying upon the general rule that waiver is a conclusion of
law and that the facts from which the conclusion flows must be pleaded. See 120 A.L.R. 124.
Appellant contends that this rule should not apply under NRCP Rule 8 which provides that no
technical forms of pleading are required but only a short and plain statement of the claim.
[Headnote 2]
It is true that the pleading of conclusions, either of fact or of law, is sufficient under
NRCP, provided the allegation is sufficiently definite to give fair notice of the nature and
basis or grounds of the claim and a general indication of the type of litigation involved. 1
Barron & Holtzoff Fed.Pra.&Proc. 432, sec. 255. Even under the simplified form of
pleading provided by the rules this allegation of waiver is insufficient.
73 Nev. 151, 153 (1957) Taylor v. State of Nev. and University of Nev.
under the simplified form of pleading provided by the rules this allegation of waiver is
insufficient. It wholly fails to give notice of the nature of the claimed waiver or of the issues
which may be involved in its litigation. Without knowledge of the basis for the plaintiff's
conclusion defendants are wholly unable to admit or deny it intelligently or conscientiously.
We conclude that it was not error to hold the complaint deficient.
[Headnote 3]
Appellant contends that the trial court improperly dismissed the action without granting
leave to amend. It appears that the factual basis for the plaintiff's conclusion of waiver was
made known to the trial court and was regarded by it as insufficient in law to constitute
waiver. That basis was as follows: that defendants had obtained insurance against loss due to
injuries suffered in the manner complained of; that such insurance was purchased from funds
appropriated by the Nevada state legislature in response to a request for such funds made by
defendants and was in force at the time the injuries were suffered. The question thus is posed
whether the purchase of indemnifying insurance by a state agency with funds provided by the
state legislature can be held to constitute a waiver of governmental immunity at least to the
extent of the insurance coverage. In our view it cannot.
[Headnote 4]
Sovereign immunity from suit based upon the ancient concept that the king can do no
wrong has been severely criticized by the courts as an outmoded and unjust rule. The
criticism may well be warranted. See Gurley v. Brown, 65 Nev. 245, 250; 193 P.2d 693, 695.
It is not within the power of the courts, however, to strip the sovereign of its armour. Gurley
v. Brown, supra. Nor can it be said to lie within the power of individual officers or heads of
governmental departments. It is the legislature alone which has the power to waive immunity
or to authorize such waiver. If the waiver is not express the implication of waiver must flow
with reasonable and persuasive clarity from legislative act. Cf. Hill v. Thomas, 70 Nev. 3S9
73 Nev. 151, 154 (1957) Taylor v. State of Nev. and University of Nev.
v. Thomas, 70 Nev. 389, 270 P.2d 179. In Jones v. Scofield Bros., Inc. (State Roads
Commission), D.C., 73 F.Supp. 395, 398, the court said The effect of indemnifying
insurance taken out by state agencies * * * not otherwise liable in tort suits, has been
discussed in some cases. The generally prevailing view seems to be that its mere existence is
not sufficient to create liability in tort unless the legislative enactments creating the agency *
* * considered as a whole, lead to the conclusion that it was the intention of the legislature to
impose such liability on the agency * * *. We may note, as have other courts, that it is one
thing for an agency to provide a measure of public protection through the insuring of its
agents and employees against liability for tort. It is quite another thing to expose the
sovereign itself to liability.
[Headnote 5]
The mere appropriation of funds for a state agency cannot constitute legislative ratification
of all that the agency may choose to purchase. Even when the appropriation is based upon a
request in the form of a budget, approval could hardly be implied as to all specific items of
the budget unless the request was granted without reduction. Even where so granted, unless
the request for funds for the purchase of insurance showed an intent to insure against a
liability from which the state is immune, no legislative authorization to waive immunity
could reasonably be implied. We can take note of the fact that these conditions are not met in
the normal course of budget and appropriation and in the absence of specification to the
contrary the normal course must be assumed to have been followed. Legislative appropriation
of funds in the normal course is not, then, sufficient in law to constitute an authorization of
waiver of governmental immunity from suit.
Under the circumstances no abuse of discretion has been shown through failure of the trial
court to grant leave to amend the complaint.
Judgment affirmed.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 155, 155 (1957) Austin v. Smith
HELEN AUSTIN and ALBERT AUSTIN, Appellants, v. GORDON SMITH,
LINDSAY SMITH and BERNARD R. O'MALIA, Doing Business as
EL CAPITAN CLUB, Respondents.
No. 3951
May 29, 1957 311 P.2d 971
Appeal from judgment of Fifth Judicial District Court, Mineral County; William D.
Hatton, Judge.
Action for personal injuries sustained by plaintiff in defendants' club when after entering
the ladies' rest room she sat upon a toilet seat and it suddenly slipped out from under her
precipitating her into the bowl. The trial court entered judgment for defendants and plaintiff
appealed. The Supreme Court, Badt, C. J., held that evidence sustained finding that
defendants were not guilty of negligence in maintaining toilet seat in question, and that
plaintiff was not injured as the direct or proximate result of negligence of the defendants in
such respect.
Affirmed.
Harry D. Anderson, of Reno, for Appellants.
Pike & McLaughlin and John W. Barrett and Thomas A. Cooke, all of Reno, for
Respondents.
1. Clubs.
In action for personal injuries sustained by plaintiff in defendants' club when after entering the ladies' rest
room she sat upon a toilet seat and it suddenly slipped out from under her precipitating her into the bowl,
evidence sustained finding that defendants were not guilty of negligence in maintaining toilet seat in
question, and that plaintiff was not injured as the direct or proximate result of negligence of the defendants
in such respect.
2. Appeal And Error.
A finding of the trial court supported by testimony may not be disturbed by the supreme court.
3. Clubs.
A toilet seat, installed in rest room of defendants' club, was not such an instrumentality as to impose a
duty on club to inspect it more than once a day, from a point of view of hazard of breaking, rather than
from the view of cleanliness.
73 Nev. 155, 156 (1957) Austin v. Smith
OPINION
By the Court, Badt, C. J..:
Mrs. Austin went to the toilet in the ladies' rest room at El Capitan Club at Hawthorne, sat
upon the toilet seat, and when it suddenly slipped out from under her, she was precipitated
into the bowl. In attempting to catch herself, she struck a projecting piece of plumbing and
suffered personal injuries. The hinge screws holding the seat in place had been torn from the
seat.
Upon completion of plaintiffs' case the court denied defendants' motion for judgment in
their favor. Defendants' witnesses testified to their maintenance of the ladies' rest room in
which there were three toilet seats. The janitor inspected and washed them every morning and
oftener on weekends. If anything was found by him requiring repair, he notified the
maintenance man. The maintenance man also checked two or three times a week. On the
morning in question the janitor washed, dried and disinfected the toilet seats, in the course of
which he moved them up and down. He found nothing wrong. This was between 6:00 and
6:30 a.m. The accident occurred between 10:00 and 11:00 a.m. Both the janitor and the
maintenance man did their work through instructions from the manager, and were to report at
once any condition indicating necessity for repairs. During any given 24-hour period an
estimated 300 to 400 people patronized El Capitan Club and in the evenings the patrons were
divided approximately equally between men and women. In the interval of three to four hours
between the last cleaning and inspection and the time of the accident many women had used
the toilets in the ladies' rest room. Defendants did not know that the seat was broken. The
seats used were of the best quality obtainable. Over an 11-year period replacement of less
than one seat a year had been required. In the main this occurred when a seat became
scratched or looked bad, though occasionally a seat broke.
[Headnotes 1-3]
Appellants' main assignment of error is the trial court's refusal to apply the doctrine of res
ipsa loquitur.
73 Nev. 155, 157 (1957) Austin v. Smith
In their brief and oral argument appellants devoted much time to the history of the doctrine
and its application by the English and American courts, and to a discussion of varying views
as to whether the application of the doctrine resulted in a presumption of negligence or in an
inference of negligence; also as to its effect in calling for an explanation by the defendants, or
shifting the burden of proof to them, and the degree of proof then required; also with
reference to the control of the instrumentality that caused the accident. Interesting though we
have found these discussions to be from an academic standpoint, no determination of the
points therein raised is required. This results from the court's finding that the defendants were
not guilty of negligence in maintaining the rest room or the toilet seat and that Mrs. Austin
was not injured as the direct or proximate result of negligence of the defendants. Such finding
is substantially supported by the testimony of defendants' witnesses and we are not at liberty
to disturb them. Friendly v. Larsen, 62 Nev. 135, 144 P.2d 747. This requires an affirmance
unless we adopt the view of appellants that the trial court should have fixed a much higher
standard of care such as a more frequent inspection in the rest room. This is unsupported by
proof of any statute, ordinance or regulation or by any proof of custom or by any proof that
the hazard was so great as to require such standard. We cannot say that the instrumentality
was such as reasonably to require inspection more than once a day, from the point of view of
the hazard rather than that of cleanliness.
Appellants have called our attention to sundry cases in which this court has considered the
doctrine of res ipsa loquitur, including Johnson v. Watkins, 70 Nev. 156, 262 P.2d 237, and
Las Vegas Hospital Association v. Gaffney, 64 Nev. 225, 180 P.2d 594, but we find in those
cases nothing contrary to the views herein expressed.
Affirmed with costs.
Eather and Merrill, JJ., concur.
____________
73 Nev. 158, 158 (1957) Scott v. Smith
FRANK SCOTT, Appellant, v. ANN SMITH, MARY GEORGEANN ROBERTS,
and HOWARD D. ROBERTS, Her Husband, Respondents.
No. 3964
May 29, 1957 311 P.2d 731
Appeal from the Sixth Judicial District Court, Humboldt County; Merwyn H. Brown,
Judge.
Action for wrongful death resulting from automobile accident which occurred at about
3:30 in morning in unincorporated town. From adverse judgment of the lower court the
defendant appealed. The Supreme Court, Eather, J., held that ordinance establishing town
speed limit was available on behalf of guest passenger as evidence of neglect of driver when
speed was proximate cause of accident, even though accident occurred at hour when town
streets were deserted and town traffic was not in any way involved.
Affirmed.
Vargas, Dillon & Bartlett, and Alex A. Garroway, all of Reno, for Appellant.
Stewart & Horton, of Reno, for Respondents.
1. Negligence.
Standard of conduct of reasonable man established by legislative act is binding upon the courts.
2. Negligence.
Person claiming protection of ordinance must show that purpose of ordinance was to protect against
invasion of interest of such person and that his interest was in fact invaded.
3. Automobiles.
Automobile passenger guests are entitled to benefits of highway speed limits.
4. Automobiles.
In action for wrongful death resulting from automobile accident which occurred in unincorporated town
at about 3:30 in morning, ordinance establishing town speed limit was admissible on behalf of guest
passenger, who was killed, as evidence of neglect of driver when speed was proximate cause of accident,
even though accident occurred at hour when town's streets were deserted and town traffic was in no way
involved.
73 Nev. 158, 159 (1957) Scott v. Smith
5. Costs.
Where depositions taken by plaintiffs were used in course of trial to correct answer of defendant and to
refresh his memory, extent to which expense of taking depositions might be regarded as necessary
disbursements was within discretionary powers of trial court and it was not abuse of such discretion to
allow plaintiff such expenses as costs. NRS 18.010.
OPINION
By the Court, Eather, J.:
This is an action for wrongful death resulting from an automobile accident. From
judgment for the plaintiffs, pursuant to jury verdict, the defendant has taken this appeal. The
principal question is whether an ordinance establishing a town speed limit was available on
behalf of a guest passenger, as evidence of the neglect of the driver.
Defendant Scott and George Smith worked together in the Sonoma Inn in Winnemucca.
On July 20, 1955 the defendant decided to drive to Reno after work and mentioned his
intention to Smith. Smith decided to accompany him. There is no question but that his status
was that of a guest.
The two left Winnemucca at about 1:10 a.m. and reached the scene of the accident, the
town of Wadsworth, Nevada, about 3:30 a.m. The highway enters Wadsworth in a wide
curve. Defendant testified that he was going between 50 and 55 miles an hour at this point;
that the bright lights of an approaching car partially blinded him and caused him to believe
the vehicle was partly in his lane; that he swerved to his right onto the highway shoulder and
lost control. The car travelled approximately 425 feet in a zigzag line and off the pavement
until it struck a tree about 10 feet off the pavement on the right side of the road. Smith's death
resulted from the impact. There was no witness to the accident and the only other testimony
as to the defendant's speed was that of an expert witness who estimated the speed to be 88
miles an hour based upon tire marks and other physical evidence.
73 Nev. 158, 160 (1957) Scott v. Smith
Defendant assigns as error the admission of an ordinance of Washoe County which
provides as follows: It shall be unlawful for any person or persons to drive or operate a
motor vehicle upon any street or highway within the unincorporated towns of Gerlach, Verdi
or Wadsworth in Washoe County, Nevada, at a speed greater than 20 miles per hour.
Defendant contends that Smith was not a person for whose benefit the ordinance was
enacted and that the ordinance cannot be said to establish a standard of care as to him.
[Headnotes 1, 2]
The standard of conduct of a reasonable man is frequently established by legislative act
and when so established is binding upon the courts. It is necessary, however, to show that the
purpose of the ordinance was to protect against invasion of the interest of the plaintiff, which
was in fact invaded. In this respect one is concerned with the persons, interests, and hazards
which the ordinance is designed to reach. See Restatement of the Law, Torts, Secs. 285 and
286.
[Headnotes 3, 4]
The defendant contends that the ordinance should be construed to have been enacted for
the protection of the inhabitants of the town of Wadsworth. It cannot be so narrowly
construed. The hazard which it sought to reach was speed through the town of Wadsworth. It
sought to protect all persons whom that hazard might affect. Passenger guests are not to be
excluded from the benefits of highway speed limits. Lawson v. Fisk, 316 Ill.App. 591, 45
N.E.2d 707; Anderson v. Anderson, 188 Minn. 602, 248 N.W. 35; Wilson v. Moudy, 22
Tenn.App. 356, 123 S.W.2d 828. Nor can we see any justification whatsoever for excluding
guests from the benefit of speed limits imposed to meet town conditions. In Singer v. Martin,
96 Wash. 231, 164 P. 1105, 1108, it was held that a statute limiting speed at intersections
within city limits was available to a passenger in a taxicab, the court stating: "The further
claim that the speed statute can only be invoked in favor of pedestrians is without merit.
73 Nev. 158, 161 (1957) Scott v. Smith
The further claim that the speed statute can only be invoked in favor of pedestrians is
without merit. * * * It imposed a positive rule of conduct upon all drivers. It seems clear that
it should be invocable in favor of any person who can show that its violation was the
proximate cause of his injury in the absence of contributory negligence on his part.
Nor can it be contended that the hazard which the ordinance sought to reach is not
involved here due to the circumstances surrounding the accident. True, it occurred at an hour
when town streets were deserted and it does not appear that town traffic was in any way
involved. These facts themselves may be material in determining whether, under the
particular circumstances, the violation constituted gross negligence, but they cannot eliminate
the effectiveness of the ordinance as establishing a standard of reasonable care. The
application of the ordinance is not limited to certain hours of the day. The county
commissioners have declared that no matter what the hour or traffic conditions may be, a
reasonable man will not assume the risk of driving in excess of the fixed speed limit within
the town of Wadsworth. If speed be the proximate cause of the accident the standard of
conduct fixed by the ordinance becomes a material consideration. Cf. Sobrio v. Cafferata, 72
Nev. 145, 297 P.2d 828.
We conclude that it was not error to admit the ordinance in evidence.
[Headnote 5]
Appellant further assigns as error the allowance as costs of certain expenses entailed in the
taking of two depositions. NRS 18.010 provides as follows: * * * There shall be allowed to
the prevailing party in any action or special proceeding in the nature of an action in the
supreme court and district courts his costs and necessary disbursements in the action or
special proceeding.
The depositions were not offered in evidence and appellant contends that the expenses
incurred in their taking cannot be held necessary disbursements in the action.
73 Nev. 158, 162 (1957) Scott v. Smith
appellant contends that the expenses incurred in their taking cannot be held necessary
disbursements in the action.
We need not here decide whether deposition expense can be regarded as a necessary
disbursement when the sole purpose of the deposition is discovery. In this case trial use was
made of these depositions. Upon cross examination of the defendant one deposition was used
to correct an answer given by him and the other was used to refresh his recollection upon a
matter he could not recall. The depositions thus served the same testimonial function as that
of a witness subpoenaed for the purpose of impeachment. The extent to which the expense of
their taking might be regarded as necessary disbursements fell within the discretionary
powers of the trial court.
We conclude that there was no error or abuse of discretion in the allowance of these items
as costs.
Judgment affirmed.
Badt, C. J., and Merrill, J., concur.
____________
73 Nev. 162, 162 (1957) Berto v. Wilson
CLAIR BERTO and JAMES WOOLEVER, Appellants, v. WILLIAM WILSON, GLEN
WOODS, ORVILLE CARLOCK, BOB FRANKS, and CHARLES CAVANAUGH,
Respondents.
No. 4013
June 18, 1957 312 P.2d 635
Appeal from the Third Judicial District Court, Lander County; John F. Sexton, Judge.
On motion to dismiss appeal.
The Supreme Court held that under affidavits showing reason for delay and financial
difficulties precluding earlier commitment to expenses of appeal, dismissal would not be
warranted.
Motion denied.
73 Nev. 162, 163 (1957) Berto v. Wilson
George G. Holden, of Battle Mountain, and Cecil S. Haynie, of Grand Junction, Colorado,
for Appellants.
William P. Beko, of Tonopah, for Respondents.
Appeal and Error.
Under affidavits as to reason for appellants' delay in ordering reporter's transcript, and financial
difficulties precluding earlier commitment to expense of appeal, dismissal of appeal for failure to docket
and file record within time would not be warranted. Rules of Civil Procedure, Rule 73(g).
OPINION
Per Curiam:
This is before us upon motion of the respondents to dismiss the appeal for failure to docket
the appeal and file the record on appeal within the time prescribed by Rule 73(g) NRCP.
Notice of appeal was filed October 23, 1956. Orders of the trial court were subsequently
secured extending time for docketing and filing to February 2, 1957 which carried somewhat
beyond the 90 days extension which that court is authorized to grant under Rule 73(g) NRCP.
On January 22, 1957 (91 days after filing of notice of appeal) the appeal was docketed by
respondents for the purpose of moving its dismissal and motion to dismiss was filed. The
record on appeal was received in this court January 29, 1957, eight days late but prior to the
February 2 date to which the trial court had extended time in excess of its authority.
Movants emphasize delay by the appellants in ordering the reporter's transcript. Appellants
reply that financial difficulties precluded an earlier commitment to the expense of the appeal.
Upon all of the affidavits we conclude that the facts of this case compare with those of
Garibaldi Trucking Co. v. Waldren, 72 Nev. 12, 292 P.2d 356, and that dismissal of the
appeal would not be warranted under the circumstances.
Motion denied. The appellants shall have 15 days from date hereof within which to file
their opening brief.
____________
73 Nev. 164, 164 (1957) Franklin v. Duncan
GEORGE E. FRANKLIN, Jr., Appellant, v.
SUZANNE DUNCAN and CARL DUNCAN, Respondents.
No. 3969
June 18, 1957 312 P.2d 633
Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
On motion to dismiss.
Action by parents, who had revoked consent previously given to adoption, to require
disclosure of information concerning persons with whom child had been placed by defendant.
The trial court entered judgment, which required disclosure of that information, and
defendant appealed. Pending appeal the defendant voluntarily disclosed the information.
Upon motion of respondents to dismiss appeal as moot, the Supreme Court held that, under
circumstances, issue whether disclosure must be made had been rendered moot by voluntary
act of disclosure.
Appeal dismissed.
Morse, Graves & Compton and Chas. H. Miles, Jr., of Las Vegas, for Appellant.
Morton Galane, of Las Vegas, for Respondents.
Infants.
Where, pending appeal from judgment requiring disclosure of information concerning persons with
whom plaintiffs' child had been placed by defendant for adoption, information had been voluntarily
furnished, issue whether disclosure must be made was rendered moot, and appeal would be dismissed.
OPINION
Per Curiam:
This is on motion of respondents to dismiss the appeal upon the ground that the issues
involved have become moot. Respondents are natural parents of a child born out of wedlock.
The child had been delivered to appellant to be placed for adoption under a consent to
adoption executed in blank by the mother.
73 Nev. 164, 165 (1957) Franklin v. Duncan
executed in blank by the mother. The consent subsequently was revoked. When appellant
refused to disclose the names and address of the persons with whom the child had been
placed by him this action was brought to require disclosure of that information. Judgment of
the court below required such disclosure and this appeal was taken. Pending this appeal
disclosure voluntarily was made by the persons with whom the child had been placed and
proceedings by the natural parents are now pending in California for recovery of the child.
Under these circumstances the issue of whether disclosure must be made has been rendered
moot by the voluntary act of disclosure. The motion must be granted. Since this matter has
become moot through what amounts to voluntary compliance with the judgment of the trial
court our dismissal will not affect that judgment.
Appeal dismissed.
____________
73 Nev. 165, 165 (1957) Ossorghin v. Real Estate Commission
C. PAUL OSSORGHIN, Appellant, v. NEVADA
REAL ESTATE COMMISSION, Respondent.
No. 3952
June 18, 1957 312 P.2d 634
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge,
Department No. 1.
Certiorari proceeding to nullify action of real estate commission in suspending license,
brought on contention that commission was not lawfully constituted. From an adverse
judgment of the trial court, plaintiff appealed. The Supreme Court, Merrill, J., held that where
terms for which two members of real estate commission had been appointed had expired but
no successors had been appointed or qualified, such members continued to serve with
authority under their prior appointments.
Affirmed.
73 Nev. 165, 166 (1957) Ossorghin v. Real Estate Commission
Leonard T. Howard, of Reno, for Appellant.
Sidney W. Robinson, of Reno, for Respondent.
1. Officers.
Where an officer is appointed or elected to a specified term, he continues to hold over until his successor
has qualified, unless there is express legislative mandate to the contrary.
2. States.
Where terms for which two members of real estate commission had been appointed had expired but no
successors had been appointed or qualified, such members continued to serve with authority under their
prior appointments. NRS 645.050 et seq.
3. Brokers.
In certiorari proceeding to nullify action of real estate commission in suspending license of real estate
broker, brought on unsuccessful contention that commission was not lawfully constituted in that two
members' appointments had expired, court would not pass upon contention that commission was without
jurisdiction to suspend license upon grounds charged, under facts of case, in view of fact that statutory
judicial review of commission's action was pending in district court. NRS 645.760.
OPINION
By the Court, Merrill, J.:
This is an appeal from judgment of the court below denying a writ of certiorari by which
the petitioner sought to nullify action of the respondent commission in suspending his license
as a real estate broker. The only question raised by this appeal is whether the commission at
the time it took action was so constituted as to enable it to act with authority. Petitioner
contends that two of those who sat as members were without authority to act since their terms
of office had expired.
The commission's hearing with respect to petitioner's license was held June 22, 1955. At
that time the composition of the commission was fixed by sec. 6396.06 NCL, 1943-1949
Supp. (since amended and superseded by NRS 645.050 et seq.). The commission was then
composed of five members; four appointed by the governor with the state controller acting ex
officio as president.
73 Nev. 165, 167 (1957) Ossorghin v. Real Estate Commission
Two members of the commission, Alfred Tamblyn and John Sinelio, had been appointed
June 19, 1952 for terms of three years expiring June 16, 1955. At the hearing in question both
of these members were still serving under their 1952 appointments. Petitioner contends that
since their terms of office had expired six days prior to the hearing they were without
authority to sit as members.
[Headnote 1]
Such is not the law. The rule is stated in Commonwealth v. Kelly, 322 Pa. 178, 185 A.
307, 309. The unquestioned weight of modern authority holds that where an officer is
appointed or elected for a specified term, he continues to hold over until his successor has
qualified, unless there is an express legislative mandate to the contrary. The reason for the
rule is stated in Robb v. Carter, 65 Md. 321, 4 A. 282, 283. The office being a trust created
for the public good, it follows that a cessation of the benefits derived from it ought not to be
sanctioned because of a failure to make an appointment by those whose duty it is to appoint.
No such failure should be permitted to cause a temporary extinction of the trust. In Opinion
of the Justices, 275 Mass. 575, 175 NE 644 at 646, it is stated: It is a general principal of
expediency in the absence of any binding regulation that an officer may continue after the
expiration of his term to exercise the duties of his position until his successor is selected and
qualified. This is simply a holding over for convenience and confers no right for any defined
period. It is not a part of the necessary tenure of his office. It prevents interruption in the
performance of the public business. It commonly is in the interests of the general welfare.
[Headnote 2]
On July 7, 1955 Tamblyn was reappointed to membership on the commission. On August
5, 1955 one E. W. Miller was appointed to serve in place of Sinelio. Until these appointments
were made and the appointees had qualified as members, Tamblyn and Sinelio continued to
serve with authority under their 1952 appointments.
73 Nev. 165, 168 (1957) Ossorghin v. Real Estate Commission
serve with authority under their 1952 appointments. The commission, then, was properly
constituted to act on June 22, 1955. The court below properly denied certiorari.
[Headnote 3]
Petitioner also contends that the commission was without jurisdiction to suspend license
upon the ground charged under the facts of this case. This question we need not consider in
this proceeding. A court review of the commission's action is provided by law. NRS 645.760.
Proceedings upon review are now pending in the district court for Washoe County. The
question raised by this contention of the petitioner entails a review of the evidence upon
which the commission's action was based and should more properly be raised in those
proceedings. In neither this case nor in State ex rel. Kassabian v. Board of Medical
Examiners, 68 Nev. 455, 235 P.2d 327, was the availability of judicial review asserted as a
bar to certiorari. No implication should be read into our failure to consider that question.
Affirmed.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 169, 169 (1957) Robison v. District Court
GRANT L. ROBISON, Petitioner, v. THE FIRST JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Ormsby, and the HONORABLE FRANK B.
GREGORY, the Presiding Judge Thereof, Respondents.
No. 4017
June 25, 1957 313 P.2d 436
Original petition for writ prohibiting the District Court, Ormsby County, Gregory, J., from
taking any further steps on petition for removal of state superintendent of banks on the
ground that he had neglected to perform official duties prescribed by law. The Supreme
Court, Badt, C. J., held that the constitution did not distinguish elective state officers from
appointive state officers and that constitutional provisions for impeachment of state officers
by the legislature precluded removal of the state superintendent of banks under statutory
proceedings.
Petition granted.
Harvey Dickerson, Attorney General, William N. Dunseath, D. W. Priest and C. B.
Tapscott, Deputy Attorneys General, of Carson City, for Petitioner.
H. Dale Murphy, of Reno, for Respondents.
1. States.
Constitutional provisions for impeachment do not distinguish between constitutional or elective state
officers and appointive state officers, and appointive state officers are not subject to removal under
statutory proceedings. NRS 283.440, subds. 1, 2(b); Const. art. 7, secs. 1-4.
2. Banks And Banking.
State superintendent of banks was a state officer, within constitutional provisions governing
impeachment of state officer, and as such he was not subject to removal under statutory proceedings, but
only to impeachment as provided by constitution. NRS 283.440, subds. 1, 2(b); Const. art. 7, secs.
1-4.
3. Constitutional Law.
An express constitutional provision requiring a certain thing to be done in a certain way is exclusive to
like extent as if it had included a negative provision to the effect that it may not be done in any other way.
73 Nev. 169, 170 (1957) Robison v. District Court
OPINION
By the Court, Badt, C. J.:
One Don Crawford filed a petition in the respondent court for the removal of Grant L.
Robison, state superintendent of banks, on the ground that the latter had neglected to perform
sundry official duties prescribed by law. Robison seeks from this court a writ of prohibition
restraining respondent court from taking any further steps or proceedings under the removal
petition on the ground that under constitutional provisions the state superintendent of banks is
removable from office by impeachment proceedings only. We have concluded that the point
is well taken and that the writ prayed for must issue.
[Headnote 1]
The statute under which the removal petition was filed now appears as sec. 283.440 NRS
1
(secs. 4860-4861, N.C.L. 1943-1949 Supp.).
The statute quoted in the margin was enacted pursuant to section 4 of Article VII of the
constitution of the state entitled Impeachment and Removal from Office. The entire article
comprises four sections. Section 1 vests the sole power of impeaching in the assembly by
concurrence of a majority vote, with impeachments triable by the senate, of which a
concurrence of two thirds is required for conviction.
____________________

1
1. Any person now holding or who shall hereafter hold any office in this state who shall refuse or neglect
to perform any official act in the manner and form prescribed by law, or who shall be guilty of any malpractice
or malfeasance in office, may be removed therefrom as hereinafter prescribed in this section.
2. Whenever a complaint in writing, duly verified by the oath of any complainant, shall be presented to the
district court alleging that any officer within the jurisdiction of the court: * * *
(b) Has refused or neglected to perform the official duties pertaining to his office as prescribed by law; * * *
the court shall cite the party charged to appear before it on a certain day, not more than 10 days or less than 5
days from the day when the complaint was presented. On that day, or some subsequent day not more than 20
days from that on which the complaint was presented, the court, in a summary manner, shall proceed to hear the
complaint and evidence offered by the party complained of. If, on the hearing, it shall appear that the charge or
charges of the complaint are sustained, the court shall enter a decree that the party complained of shall be
deprived of his office. * * *
73 Nev. 169, 171 (1957) Robison v. District Court
assembly by concurrence of a majority vote, with impeachments triable by the senate, of
which a concurrence of two thirds is required for conviction. Section 2 reads as follows:
Who May Be Impeached. 2. The governor and the other state and judicial officers, except
justices of the peace, shall be liable to impeachment for misdemeanor or malfeasance in
office; but judgment in such case shall not extend further than removal from office, and
disqualification to hold any office of honor, profit, or trust, under this state. The party,
whether convicted or acquitted, shall nevertheless be liable to indictment, trial, judgment, and
punishment according to law. Section 3 provides for the removal of the justices of the
supreme court and the judges of the district courts [f]or any reasonable cause, to be entered
on the journals of each house, which may or may not be sufficient grounds for impeachment
on the vote of two-thirds of the members of each branch of the legislature. Section 4 reads as
follows: Removal of Civil Officers. 4. Provision shall be made by law for the removal
from office of any civil officer other than those in this article previously specified, for
malfeasance or nonfeasance in the performance of his duties.
Respondents contend that the constitutional provision governing impeachment applies
only to constitutional officers and not to the holders of offices created by the legislature and
appointed by the governor. They refer to section 5 of Article XVII of the constitution which
provides the salaries of the governor, the secretary of state, the state controller, the state
treasurer, the surveyor general, the attorney general and superintendent of public instruction
and to section 18 of Article XVII again specifying these officers, as evidence that these are
the officers referred to.
In the Constitutional Debates involving the adoption of Article VII of the constitution
entitled Impeachment and Removal from office (Nev. Const. Debates and Proceedings,
1864, pp. 541-565) over twenty-five pages of fine print are devoted to the four sections and to
the proposed amendments to the four sections comprising that article.
73 Nev. 169, 172 (1957) Robison v. District Court
proposed amendments to the four sections comprising that article. Portions of these debates
are not only eloquent but impassioned, particularly the portions relating to proposed
provisions for impeachment and removal of members of the judiciary. They reflect some of
the tragic history of the territorial court. To reproduce these debates extensively in this
opinion would unreasonably extend it. Several points, however, clearly emerge. All emphasis
is supplied.
Section 4, as originally proposed, read as follows: Provision shall be made by law for the
removal from office of any civil officer, for malfeasance or nonfeasance in the performance of
his duties. This, be it remembered, followed the provisions of section 2 providing for
impeachment of the governor and other civil officers under the state government for
misdemeanor or malfeasance in office, and section 3 which provided for removal from office
of the justices of the supreme court and the district judges, for any reasonable cause, which
may or may not be sufficient grounds for impeachment on the vote of two-thirds of the
members elected to each branch of the legislature. The apparent duplication of both the
grounds and the method of removal, particularly as applied to judicial officers (with
additional grounds), was hotly defended. Various methods and various amendments were
suggested to correct the duplications, both as to members of the judiciary and other officers.
What finally emerged was an amendment to section 4 to the effect that provision be made by
law for the removal from office of any civil officer other than those in this article previously
specified. It became clearly manifest that the officers specified in either section 2 or section
3 were not subject to removal through any means to be provided by the legislature, but only
by the means specifically provided in sections 2 or 3. After lengthy arguments the closing
explanation, which apparently satisfied and was accepted by all members of the convention,
was [The impeachment provision] includes the state officers, such as the Governor, Attorney
General, Secretary of State, and so on, and leaves all the county officers out" {Nev. Const.
73 Nev. 169, 173 (1957) Robison v. District Court
county officers out (Nev. Const. Debates and Proceedings, 1864, p. 553). Mr. Nourse, who
made such final statement, had previously indicated his agreement with the chairman's
conception that the offices not included in the impeachment section but subject to legislative
provision included county and township offices.
2
Id. 553. This was indeed the reaction of
this court in Gay v. District Court, 41 Nev. 330, 171 P. 156, 157, 3 A.L.R. 224, in a
proceeding which questioned the jurisdiction of the district court to entertain removal
proceedings under the statute against the sheriff of Clark County. Coleman, J., speaking for
the court, said: The constitutional convention, in adopting section 4 of Article 7 of the
constitution, realized, no doubt, that to confer upon legislative bodies the duty of impeaching,
trying, and removing district, county, township, and municipal officers would be to place an
undue burden upon the legislature and referred further to delays and lack of relief in relying
only on impeachment proceedings for officers holding two-year terms. He referred to cases
under the California constitution providing for the removal of certain officers by
impeachment and all other officers * * * in such manner as the legislature may provide'.
McCarran, C. J., in concurring, noted that the legislative act passed pursuant to section 4 of
Article VII was to provide a rule of conduct by which removal from office might be
accomplished as to those officers not affected by sections 1, 2, and 3 of Article 7 of the
constitution * * *, and again referred to section 4 as giving power to the legislature to enact
laws looking to the impeachment and removal of civil officers other than those mentioned in
the preceding sections.
No cases have been cited directly in point. Respondents do indeed contend that under
similar constitutional provisions it was held that constitutional provisions for impeachment
did not exclude removal under statutory proceedings, in the cases of Holmes v. Osborn,
57 Ariz.
____________________

2
As to the suggestion that the impeachment proceedings referred only to elective as distinguished from
appointive officers, a careful reading of the lengthy debates on this section of the constitution reveals not a single
mention of any such distinction.
73 Nev. 169, 174 (1957) Robison v. District Court
impeachment did not exclude removal under statutory proceedings, in the cases of Holmes v.
Osborn, 57 Ariz. 522, 115 P.2d 775; State ex rel. De Concini, Attorney General v. Sullivan,
66 Ariz. 348, 188 P.2d 592, and People v. Shawver, 30 Wy. 366, 222 P. 11.
In the Osborn case the court very aptly stated: Whether the process of impeachment is
exclusive depends upon the fundamental laws, and these laws are so different that the
decisions under them lend very little aid in reaching a conclusion under ours. [57 Ariz. 522,
115 P.2d 782.] The truth of this is apparent in attempting to fit the Osborn holding that the
constitutional provision for impeachment of certain officers was not exclusive, to the
situation under the Nevada constitution. The Arizona constitution contained only two sections
similar to our sections 1 and 2 of Article VII. However, the Arizona constitution, like the
Wyoming constitution, lacks any correspondence with our sections 3 and 4 and particularly
the provision of our section 4 authorizing the legislature to provide by law for the removal
from office of any civil officer other than those in this article previously specified, * * *.
Thus the limitation of legislative authority provided in our constitution robs of all force the
holding in the two Arizona cases and the Wyoming case above mentioned.
[Headnotes 2, 3]
That the state superintendent of banks is a state officer we believe to be beyond question.
No language used in Article VII of the constitution is susceptible of any construction
restricting it to what has been referred to as constitutional officers or to elective state
officers as distinguished from appointive state officers. And, as heretofore pointed out, not
the slightest mention or reference to any such possible distinction was made in the lengthy
constitutional debates on the subject. The provisions of section 2 of Article VII providing that
the governor and the other state and judicial officers, except justices of the peace, shall be
liable to impeachment * * * concededly includes the secretary of state, state controller, state
treasurer, surveyor general, attorney general and superintendent of public instruction, and it
is further conceded that as to such officers the legislature is powerless to act.
73 Nev. 169, 175 (1957) Robison v. District Court
general and superintendent of public instruction, and it is further conceded that as to such
officers the legislature is powerless to act. This results from the well recognized rule that an
express constitutional provision requiring a certain thing to be done in a certain way is
exclusive to like extent as if it had included a negative provision to the effect that it may not
be done in any other way. Negative words are not indispensable in the creation of limitations
to legislative power * * *. [I]mplied as well as express restrictions must be regarded * * *.
State v. Arrington, 18 Nev. 412, 415, 4 P. 735, 737.
As the state superintendent of banks is therefore not subject to removal under the
provisions of NRS 283.440, the petition for the writ of prohibition restraining further
proceedings thereunder must be granted, and it is so ordered.
Eather and Merrill, JJ., concur.
____________
73 Nev. 175, 175 (1957) Hess v. State
TROY CLIFFORD HESS and MICHAEL STEVEN STERLING, Appellants,
v. THE STATE OF NEVADA, Respondent.
No. 3984
June 27, 1957 313 P.2d 432
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Prosecution for kidnaping in the first degree wherein defendants filed motion for change of
venue. From adverse judgment of the trial court, defendants appealed. The Supreme Court,
Badt, C. J., held that evidence was insufficient to establish that a fair and impartial trial could
not be had in Elko County.
Affirmed.
(Rehearing denied August 13, 1957.)
73 Nev. 175, 176 (1957) Hess v. State
Harry E. Claiborne, of Las Vegas, for Appellants.
Harvey Dickerson, Attorney General, of Carson City; F. Grant Sawyer, District Attorney,
and Joseph O. McDaniel, Deputy District Attorney, of Elko, for Respondent.
1. Criminal Law.
In prosecution for kidnaping wherein defendants filed motion for change of venue on ground that fair and
impartial trial could not be had in county in which prosecution was brought because testimony introduced
on voir dire examination of jurors indicated a general feeling prevailing in community against defendants,
evidence was insufficient to indicate that a fair and impartial trial could not be had. NRS 175.115,
200.310.
2. Criminal Law.
In prosecution for kidnaping wherein state filed motion to add to information as a witness name of
person, the materiality of whose testimony was not discovered until day before trial, court did not abuse its
discretion in granting motion when state was required to make witness and information requested available
to counsel for defendant. NRS 173.080, 200.310.
3. Criminal Law.
In prosecution for kidnaping a woman at or upon the outskirts of Wells, Nevada, evidence was sufficient
to establish that venue of the crime was in Elko County. St. 1926-27, c. 104; NRS 200.310.
OPINION
By the Court, Badt, C. J.:
Appellants, in their appeal from their conviction of the crime of kidnaping in the first
degree (NRS 200.310) under which they were sentenced to life imprisonment, assign three
errors on the part of the trial court, by reason whereof they contend that they are entitled to a
reversal and a remand for a new trial. We find no merit in any one of the three assignments of
error.
The complaint charged that the said defendants did on the date specified willfully,
unlawfully and feloniously seize, confine, abduct, kidnap or carry away one Wanda Perkins,
of Phoenix, Arizona, near the junction of U. S. Highway 40 and U. S. Highway 93,
approximately one mile east of the City of Wells, County of Elko, State of Nevada, for the
purpose of committing robbery upon and from said Wanda Perkins.
73 Nev. 175, 177 (1957) Hess v. State
Elko, State of Nevada, for the purpose of committing robbery upon and from said Wanda
Perkins. That both defendants did rape the said Wanda Perkins while she was so unlawfully
confined as aforesaid, did bind her hands and feet with a heavy fishing line which cut and
bruised her wrists and ankles * * * all of which caused bodily harm to the said Wanda
Perkins. Of this crime both defendants were found guilty by the jury at a trial commencing
April 12, 1956.
[Headnote 1]
1. Appellants first assign as error denial of their motion for change of venue. The motion,
filed November 28, 1955, was not supported by affidavits. It was based on the ground that a
fair and impartial trial cannot be had in Elko County. It was called up for hearing by the
defendants March 14, 1956, after the jury had been impaneled, and was then based upon all
of the testimony introduced heretofore on voir dire examination of all the jurors, indicating a
general feeling prevailing in the community, that many of the jurors have had opinions, that
the defense was required to exercise all of its peremptory challenges and would otherwise
have challenged other jurors peremptorily. No error is assigned in the overruling of any
challenges for cause. We have carefully read the record of the voir dire examination of the
jurors and in particular those parts of the examination cited in the briefs of appellants, and our
conclusion is that the only material facts appearing therefrom are that most of the veniremen
had read newspaper articles concerning the case and had heard it discussed by sundry persons
not having actual knowledge of the facts. Under NRS 175.115 (formerly sec. 10948 N.C.L.
1929) no person shall be disqualified as a juror by reason of having formed or expressed an
opinion upon the matter or cause to be submitted to such jury, founded upon public rumor,
statements in public press, or common notoriety, provided it appears to the court, upon his
declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion,
act impartially and fairly upon the matters submitted to him. It is not claimed that any of the
jurors sworn in the case could be said to have an unqualified opinion.
73 Nev. 175, 178 (1957) Hess v. State
of the jurors sworn in the case could be said to have an unqualified opinion. None of the
jurors who sat was challenged for cause. The jury box was filled after examining thirty
talesmen. Appellants in their opening brief cite only State v. Teeter, 65 Nev. 584, 200 P.2d
657, and that for the general language used by this court that from the standpoint of idealistic
perfection it would be better to try all cases in counties other than where the crime was
committed. In their reply brief appellants rely on Bryant v. State, 72 Nev. 330, 305 P.2d 360,
in which we found error in overruling a challenge interposed for cause. That case, however, is
very clearly distinguishable. Appellants cited other cases in support of the general rule that
the defendants are entitled to a fair trial by an impartial jury. There is nothing in the record to
indicate to this court, as there was apparently nothing to indicate to the trial court, that the
grounds of the motion for change of venue, that a fair and impartial trial could not be had in
Elko County, had any substantial support. The motion was denied in the exercise of a sound
discretion by the learned trial judge. See State v. Millain, 3 Nev. 409; State v. McLane, 15
Nev. 345; State v. Gray, 19 Nev. 212, 8 P. 456; State v. Teeter, 65 Nev. 584, 200 P.2d 657;
State v. Fouquette, 67 Nev. 505, 221 P.2d 404; State v. Alsup, 69 Nev. 121, 243 P.2d 256, in
all of which, despite a far stronger showing than that here made, this court approved the trial
court's exercise of its discretion in denying a change of venue.
[Headnote 2]
2. Error is next assigned in the court's order permitting the name of one Marvel Smith to
be added to the information as a witness. NRS 173.080 (formerly sec. 11328, N.C.L. 1929)
requires the district attorney to endorse upon the information the names of witnesses known
to him at the time and the names of other witnesses becoming known to him before the trial
but this shall not preclude the calling of witnesses whose names, or the materiality of whose
testimony are first learned by the district attorney upon the trial".
73 Nev. 175, 179 (1957) Hess v. State
by the district attorney upon the trial. The record supports respondent's contention that the
actual materiality of information possessed by the witness was not discovered until the day
before the trial, whereupon notice of the respondent's motion to add the name of the witness
was served and was three days later presented to the court, which granted the motion under
certain conditions. The state was required to make the witness and the information requested
available to counsel for appellants. The nature of the testimony to be given was that of
identification, and she had made a trip to Utah at the request of defendants to view two
prisoners in the Utah state prison. The state made the witness and her information available to
defendants as required by the court. The matter lay largely in the discretion of the court and
we see in the court's action no abuse of that discretion. Although appellants cite State v. Ceja,
53 Nev. 272, 298 P. 658, 2 P.2d 124 and State v. Monahan, 50 Nev. 27, 249 P. 566, those
cases support the court's ruling. The ruling is also supported by State v. Mendez, 57 Nev. 192,
61 P.2d 300, and State v. Teeter, 65 Nev. 584, 200 P.2d 657. We are satisfied that the rights
of the defendants were fully protected under the circumstances.
[Headnote 3]
3. Appellants' third assignment of error is that the state failed to establish the venue of the
crime in the county of Elko, or in the State of Nevada. While it is true that virtually all of the
witnesses testified to the facts as occurring simply at, or on the outskirts of, Wells, Nevada,
without mentioning the county, one witness who testified that he had lived in Wells some
twenty-four years and had owned property and was in business there for many years, after
stating that he lived at Wells, was asked the definite question: That is in Elko County,
Nevada? and he answered, Yes. Wells is an incorporated city, having been incorporated by
direct act of the legislature in 1927, Stats. 1926-27, Chap. 104, p. 141, and by that statute is
definitely placed in the county of Elko.
73 Nev. 175, 180 (1957) Hess v. State
in the county of Elko. A map or plat, from which the witnesses in the case testified, was by
stipulation admitted in evidence. It shows the site of the kidnaping as being on the outskirts of
Wells, at the intersection of U. S. Highway No. 93, running north to Twin Falls and south to
Ely, and U. S. Highway No. 40 running west to Elko and east to Wendover. It is drawn to
scale and shows the actual site of the abduction as being some 400 feet southeast of the city
limits of Wells, although it does not designate either the county or the state.
See State v. Buralli, 27 Nev. 41, 48, 71 P. 532, as to judicial knowledge taken by courts of
the division of the state into counties and the location of the important towns therein
designated by statute as the county seat. Even without such judicial knowledge we may say,
as we did in State v. Varga, 66 Nev. 102, 124, 205 P.2d 803, 813: When all of the evidence
introduced at the trial is considered as a whole, there is ample proof that the crime was
committed in Wells, Elko County, Nevada.
As no other errors are assigned and as we have found the three errors assigned to be
without merit, the judgment must be affirmed, and it is so ordered.
Eather and Merrill, JJ., concur.
____________
73 Nev. 181, 181 (1957) In Re R. Dale Cook
In the Matter of R. DALE COOK, Attorney at Law.
No. 3993
July, 9, 1957 313 P.2d 434
Application for review of recommendation for disbarment by the Board of Governors of
the State Bar of Nevada.
Applicant disbarred.
R. Dale Cook, applicant, in pro. per.
Clarence Sundeen, attorney for Board of Governors of the State Bar.
Attorney and Client.
Evidence of professional misconduct in connection with forged power of attorney and deed of trust
purportedly authorized thereby was sufficient to support recommendations for disbarment.
OPINION
Per Curiam:
The local administrative committee of Clark County, Nevada, served on R. Dale Cook, the
applicant abovenamed, its complaint alleging professional misconduct in several counts. We
need consider but one of them as hereinafter discussed. Hearings were had upon the
complaint on February 25, March 1, 7 and 22, 1956, before the local administrative
committee, district No. 1, Clark County, Nevada, and some eight witnesses were sworn and
testified, including the accused. Some sixteen exhibits were received in evidence without
objection. The administrative committee consisting of the chairman and seven additional
members made unanimous findings. These are lengthy and drawn with great formality, but
may be condensed to reflect the following situation.
Cook was and had been acting as attorney for one Norman Khoury who desired to borrow
$35,000 on Clark County real estate. Khoury was at the time in Cleveland, Ohio. Cook
prepared a form of general power of attorney from Khoury to himself, signed it Norman
Khoury in a disguised hand, placed an acknowledgment form upon the instrument and
caused it to be delivered to an employee of Clark County Mortgage Company {of which
company Cook acted as attorney) for the purpose of having a notary public execute the
acknowledgment certificate purporting to show that Norman Khoury had personally
appeared before the notary and executed and acknowledged such written power of
attorney.
73 Nev. 181, 182 (1957) In Re R. Dale Cook
form upon the instrument and caused it to be delivered to an employee of Clark County
Mortgage Company (of which company Cook acted as attorney) for the purpose of having a
notary public execute the acknowledgment certificate purporting to show that Norman
Khoury had personally appeared before the notary and executed and acknowledged such
written power of attorney. This was accomplished through the acknowledgment certificate of
another person connected with said mortgage company. This was all done with the intent and
purpose that the instrument, the signature of Khoury, the certificate of acknowledgment of the
notary would all be accepted and relied upon as genuine and with the intent that the same be
delivered to Pioneer Title Insurance & Trust Company of Las Vegas, Nevada, to the end that
such title company would rely thereon as a genuine instrument conferring on Cook the
authority therein recited. Cook knew, of course, that the instrument did not in fact confer any
power or authority on him, but that it was a false, spurious and forged instrument. He knew
also that the notary purporting to take the acknowledgment would in turn be doing so in
violation of law. He knew that the title company intended to rely upon the genuineness of the
instrument. Cook then proceeded under his purported authority as attorney in fact to execute a
deed of trust for the purpose of securing a loan for the sum of $35,000. (Several deeds of trust
and notes are involved but we find it unnecessary to go into greater detail.) The Pioneer Title
Insurance & Trust Company accepted and relied upon the deed of trust so executed (as it
relied on the genuineness of the power of attorney) and upon such reliance issued its policy of
title insurance to Joseph Mitry and his wife who were the assignees of the purported deed of
trust. This was all pursuant to what Cook intended. The title company thereafter, confronted
with the fact that it had insured the title, based on the forged power of attorney and the
ineffective deed of trust made good on its policy to the extent of $34,266.66. Prior to the
power of attorney in question, Cook had executed an earlier power of attorney from
Khoury to himself in which he himself as a notary public had taken his own
acknowledgment.
73 Nev. 181, 183 (1957) In Re R. Dale Cook
question, Cook had executed an earlier power of attorney from Khoury to himself in which he
himself as a notary public had taken his own acknowledgment. This had been rejected by the
insurance company for the irregularity appearing on its face, whereupon Cook executed the
second power of attorney above described. On a second assignment of the deed of trust the
surety was compelled to pay and did pay the further sum of $17,850 under the liability of its
title insurance policy.
Apparently Clark County Mortgage Corporation received the proceeds of the loans. That
company in turn was purchasing an airplane from Santa Monica Aviation Company for the
use of Fabulous Enterprises, Inc., which apparently used the plane in exhibiting or identifying
sundry parcels of land to be sold to prospective purchasers or entrymen. The transaction from
this point becomes quite involved. The mortgage company issued two checks, one for
$10,000 and one for $11,000 to Cook. Part of this money was to reimburse Cook for a check
he in turn had given on the plane. Part apparently was to reimburse him for a $5,000 loan
made by him to Khoury (or at least to cover a $5,000 check which Cook had drawn for that
purpose). $2,000 was paid to the attorneys for Khoury's corporation in Las Vegas and some
$1,500 was paid to reimburse Cook for certain fees and costs in other matters. Otherwise
Khoury received no part of the proceeds of the loan. The plane itself was repossessed by
Santa Monica Aviation Company and an aggregate of $25,000 paid to that company was
apparently entirely lost.
Save that Cook asserted that he had no improper intentions in any of these transactions and
save that he maintained that he received no part of the proceeds of the loan accomplished by
his unlawful acts and save that he claimed that Khoury in repeated long distance telephone
calls from Cleveland urged him to expedite the loan and to do everything necessary, he does
not dispute any of the findings reflecting the foregoing recital.
The local administrative committee unanimously recommended disbarment.
73 Nev. 181, 184 (1957) In Re R. Dale Cook
recommended disbarment. On application to the board of governors of the state bar the matter
was reviewed by that board in a hearing and proceeding called for the purpose upon the
petition of the accused, but Cook, though duly notified, failed to appear.
Thereupon the board of governors proceeded to a consideration of the matter and by
unanimous action of its seven members concurred in the disbarment recommendations of the
local administrative committee and filed its report with this court likewise recommending
disbarment.
It should be noted that other acts of professional misconduct were found by both the local
administrative committee and the board of governors. No purpose would be served by a
discussion of such additional matters.
No characterization of the unlawful and criminal nature of the accused's actions is
necessary. They speak for themselves. When the matter was set for argument before this court
upon the report of the board of governors, the accused's application for review, the answer
thereto and the reply to said answer, the chairman of the local administrative committee
appeared on behalf of the board of governors and the applicant appeared in his own person.
Instructed to proceed, he advised the court that he desired to submit his application for review
without argument. Counsel for the board then advised the court that there was nothing for
him to answer and that he would make no argument. The matter was thereupon ordered
submitted. As the findings of the local administrative committee and of the board of
governors are amply supported by the evidence and are indeed not denied by the applicant,
and as such findings are sufficient to justify and support the recommendation for disbarment,
it must be so ordered.
It is accordingly ordered (NRS 7.100, 7.220) that the name of R. Dale Cook be stricken
from the roll of attorneys and counselors of this court and that he be precluded and disbarred
from practicing as such attorney or counselor in all the courts of this state.
____________
73 Nev. 185, 185 (1957) Ringelberg v. United Ass'n of Journeymen
JAMES D. RINGELBERG; and WILLIAM K. STINE, Doing Business as A-1 Plumbing
Supply Company, Appellants, v. UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED
STATES AND CANADA, Local Union 525, Las Vegas, Nevada, Et Al., Respondents.
No. 3945
July 22, 1957 314 P.2d 380
Appeal from the Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
Department No. 1. Motion for order assessing damages under injunction bond after
termination of restraining order granted upon appeal from a determination of the trial court.
The Supreme Court, Per Curiam, held that alleged rule, giving court issuing injunction under
bond jurisdiction to retain case and assess damages accruing as result of its improvident
issuance, would have no application to Supreme Court.
Motion denied.
(See also 72 Nev. 156, 297 P.2d 1079.)
Morton Galane, of Las Vegas, for Appellants.
George Rudiak, and Betty Aronow, Associate, of Las Vegas, for Respondents.
1. Courts.
Once an appeal has been taken and perfected pursuant to appeal provisions of civil procedure rules,
proceedings before Supreme Court, unless expressly provided for by such rules, are governed by Supreme
Court's supplemental rules. Rules of Civil Procedure, Rules 1, 65(c).
2. Injunction.
Civil procedure rule providing for enforcement on motion of surety's liability on injunction bond has no
application to proceedings in Supreme Court. Rules of Civil Procedure. Rules 1, 65(c).
3. Injunction.
Alleged rule, giving court issuing injunction under bond jurisdiction to retain case and assess damages on
bond accruing as result of its improvident issuance, would have no application to Supreme Court.
73 Nev. 185, 186 (1957) Ringelberg v. United Ass'n of Journeymen
OPINION
Per Curiam:
This is on motion of the respondents for an order of this court assessing damages under an
injunction bond.
Upon this appeal a temporary restraining order was granted ex parte to the appellants upon
their furnishing a bond in the sum of $2,000. Following hearing of their motion for an
injunction pending appeal the motion was denied and the restraining order terminated.
Ringelberg v. United Association of Journeymen, 72 Nev. 156, 297 P.2d 1079. This motion
was then filed. Appellants resist the motion, contending that movants' proper course is an
independent action upon the bond.
The motion is based upon Rule 65 NRCP dealing with injunctions and in particular upon
65(c) which provides in part A surety upon a bond or undertaking under this rule submits
himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his
agent upon whom any papers affecting his liability on the bond or undertaking may be served.
His liability may be enforced on motion without the necessity of an independent action. * * *
.
[Headnotes 1, 2]
This rule, however, governs proceedings in the district courts and has no application to
proceedings in this court. See Rule 1 NRCP. Once an appeal has been taken and perfected
pursuant to the appeal provisions of NRCP the proceedings before this court, unless expressly
provided by NRCP, are governed by our supplemental rules of court.
Movants contend that even in absence of a rule to such effect a court issuing an injunction
under bond has jurisdiction to retain the case and to assess damages accruing as a result of its
improvident issuance. Much authority has been cited to this effect.
[Headnote 3]
This rule may indeed be a sound one as applied to injunctions issued out of trial courts.
However, it would not seem with equal reason to apply to appellate courts.
73 Nev. 185, 187 (1957) Ringelberg v. United Ass'n of Journeymen
This court is not a trial forum. For us to apply the rule to injunctions issued in connection
with appeals would be for us to take to ourselves not only original jurisdiction over what
otherwise would be an independent action, but also all trial functions in the determination of
liability under the bond. We conclude that the rule does not apply to this court.
Motion denied.
____________
73 Nev. 187, 187 (1957) State v. Elwell
THE STATE OF NEVADA, on the Relation of Harvey Dickerson, Attorney General,
Plaintiff, v. WILLIAM ELWELL, N. E. BROADBENT, GRANT SAWYER,
CYRIL O. BASTIAN, Defendants.
No. 4030
July 23, 1957 313 P.2d 796
Original action in nature of quo warranto to oust defendants from office as members of
Board of Regents of University of Nevada. The Supreme Court, Merrill, J., held that, where
legislature increased membership in the Board of Regents of the University of Nevada from
five to nine members, vacancies which existed in the four new offices could be filled, until
the next general election, only by appointment of the governor, and, therefore, legislature's
appointment of persons to fill such vacancies was without constitutional authority.
Judgment for the State, ousting defendants as prayed.
Harvey Dickerson, Attorney General; William N. Dunseath, Chief Deputy Attorney
General; D. W. Priest and C. B. Tapscott, Deputy Attorneys General, of Carson City, for
Plaintiff.
William Morse, of Las Vegas; Leslie B. Gray; Ralph K. Wittenberg; Goldwater, Taber &
Hill, of Reno, for Defendants.
73 Nev. 187, 188 (1957) State v. Elwell
1. Colleges and Universities.
The election contemplated by constitutional provision that named state officials should, until their
successors were elected and qualified, constitute the Board of Regents of the University of Nevada and
that legislature should provide for the election of a new board, is an election by the people. Const. art.
11, sec. 7.
2. Officers.
Ordinary meaning of word elected implies a popular vote, unless otherwise qualified.
3. Constitutional Law.
A state of emergency or exigencies of a situation cannot render constitutional an act which the
constitution forbids.
4. Colleges and Universities.
After legislature increased number of members of Board of Regents of the University of Nevada from
five to nine, vacancies existing as to the four new offices were such as could be filled by appointment prior
to election. St.1869, c. 80; St.1887, c. 37; St.1957, c. 122; Const. art. 11, sec. 7.
5. Judges; States.
Under constitutional provision that, in case office of any Supreme Court justice, district judge, or other
state officer shall become vacant before expiration of regular term for which he was elected, vacancy
may be filled by appointment by governor, quoted language is descriptive only and must be construed as
describing the term of any elective state office, regardless of manner in which a vacancy in such office
might occur. Const. art. 17, sec. 22.
6. Colleges and Universities.
Where legislature increased membership in the Board of Regents of the University of Nevada from five
to nine members, vacancies which existed in the four new offices could be filled, until the next general
election, only by appointment by the governor, and, therefore, legislature's appointment of persons to fill
such vacancies was without constitutional authority. St.1957, c. 122; Const. art 17, sec. 22.
OPINION
By the Court, Merrill, J.:
By legislative act, effective upon passage and approval, the 1957 legislature of Nevada
increased the board of regents of the University of Nevada from five to nine members. 1957
Stats. Nev., ch. 122, p. 166. By the same act it was provided that until the four new offices
could be filled by popular election as provided by constitution and statute, the vacancies
should be filled by legislative appointment.
73 Nev. 187, 189 (1957) State v. Elwell
appointment. Following the passage and approval of the act the legislature in joint session
designated the four defendants as its appointees. Legislative commissions were issued.
Defendants thereupon qualified by the taking of their oaths of office.
This action in the nature of quo warranto was then brought by the state upon the relation of
the attorney general, challenging the right of defendants to hold office under their legislative
appointment. Relator concedes the power of the legislature to increase the membership of the
board of regents but contends that it had no constitutional power to provide by appointment
for the interim filling of the vacancies so created.
Article 11, sec. 7 of the Nevada constitution provides for the creation of a board of regents.
That section reads: The Governor, Secretary of State, and Superintendent of Public
Instruction, shall for the first Four Years and until their successors are elected and qualified
constitute a Board of Regents to control and manage the affairs of the University and the
funds of the same under such regulations as may be provided by law. But the Legislature shall
at its regular session next preceding the expiration of the term of Office of said Board of
Regents provide for the election of a new Board of Regents and define their duties.
[Headnotes 1, 2]
Pursuant to the constitutional command the legislature in 1869 did provide for election of a
board of regents. 1869 Stats. Nev., ch. 80, p. 134. The election, however, was by the
legislature itself. This act stood without court challenge for many years until the legislature
itself in 1887 provided for the popular election of members of the board. 1887 Stats. Nev., ch.
37, p. 42. Defendants here contend that the legislative act of appointment to fill the vacancies
existing in the four new offices amounted to election by the legislature, which is
permissible under the constitutional provision. It has, however, become the settled law of this
state that the election contemplated by Article 11, sec. 7 is election by the people. State ex rel.
Mack v. Torreyson, 21 Nev. 517; 34 P.
73 Nev. 187, 190 (1957) State v. Elwell
34 P. 870. King v. Board of Regents, 65 Nev. 533, 200 P.2d 221. As stated in State ex rel.
Clarke v. Irwin, 5 Nev. 111, 121, The ordinary meaning of the word elected' implies a
popular vote, unless otherwise qualified.
Two issues are presented for our determination. 1. Whether the vacancies existing in the
four new offices were such as could be filled prior to election. 2. If they were, whether they
could be filled by legislative appointment.
Upon the first question relator contends that it is the law of Nevada that when a new
elective office has been created by legislative act there is no power under our constitution to
fill the office temporarily until it can regularly be filled by election, unless a condition of
emergency exists which demands the immediate filling of the office. Further, relator contends
that no emergency has been shown to exist in this case.
This proposition we must reject on the authority of State ex rel. Clarke v. Irwin, supra. For
purposes of comparison the constitutional requirement for election of the board of regents can
be reduced to the following language: * * * the legislature shall * * * provide for the
election of a * * board of regents and define their duties. In State ex rel. Clarke v. Irwin this
court was concerned with Article 4, sec. 26 of the constitution, which states, The Legislature
shall provide by law for the election of a Board of County Commissioners in each County * *
*. So far as concerns our problem the two provisions are indistinguishable.
In State ex rel. Clarke v. Irwin a new county had been created and the legislature had
designated the persons who should fill county offices until they could regularly be filled by
election. The same contention was made as is made here: that the constitutional provision
precluded the filling of the offices by any method other than election. This court stated, 5
Nev. 111, 125: The clause referred to requires the Legislature to provide for such election;
that the Legislature has already done, in passing a general and uniform election law,
applicable to all counties in the State; but, because an office is elective and must under
general laws be always so filled, it by no means follows that it cannot be filled temporarily
by other means; and when the Legislature has provided generally and uniformily for
elections of county officers, all has been done which the Constitution commands in that
regard; the mandate does not apply to cases of emergency or special occasion, as the
creation of a new office, or a vacancy."
73 Nev. 187, 191 (1957) State v. Elwell
and must under general laws be always so filled, it by no means follows that it cannot be
filled temporarily by other means; and when the Legislature has provided generally and
uniformily for elections of county officers, all has been done which the Constitution
commands in that regard; the mandate does not apply to cases of emergency or special
occasion, as the creation of a new office, or a vacancy.
Thus this court clearly held that the constitutional provision for election had no application
to the temporary filling of a new office. The case was followed in State ex rel. Rosenstock v.
Swift, 11 Nev. 128, where in creating the municipal corporation of Carson City, the
legislature designated the Ormsby county officers as ex officio city officers until the new
offices could be filled by municipal election.
In support of his position relator relies upon State ex rel. Perry v. Arrington, 18 Nev. 412,
4 P. 735, and State ex rel. Mack v. Torreyson, supra, both of which cases distinguished and
confined the application of State ex rel. Clarke v. Irwin. Neither case involved the temporary
filling of elective offices until they could be filled by election. Both decisions are clearly
correct upon the facts involved. In the Arrington case this court held unconstitutional that
portion of an act extending the terms of office of county officers which provided that the
incumbents should hold over for the unexpired portion of the extended term. The act thus
deprived the people of their right of choice at general election as to the unexpired portion of
the extended term. The right of election was taken from them by what amounted to legislative
appointment of the incumbents: appointment in lieu of election rather than until election
could be had. In the Torreyson case this court held unconstitutional an act providing that the
governor and attorney general, ex officio, should sit as members of the board of regents of the
University. Temporary action was not involved. The nature of the board of regents was
permanently changed. The right of the people to an independent choice of constitutional
officers was taken from them as to two members of the board.
73 Nev. 187, 192 (1957) State v. Elwell
[Headnote 3]
In both cases, however, language indicates that the court misconstrued the holding of State
ex rel. Clarke v. Irwin. That case was regarded as holding that since the filling of elective
offices by appointment is contrary to the language of the constitution, it can only be justified
by the exigencies of the situation, and that a condition of emergency must exist demanding
the immediate filling of the vacancies. Such was not the holding of State ex rel. Clarke v.
Irwin. We must reject the implication of the Arrington and Torreyson cases that a state of
emergency or the exigencies of the situation can render constitutional an act which the
constitution forbids. In State ex rel. Clarke v. Irwin the temporary filling of vacancies by
appointment was expressly held not to be contrary to the language of the constitution. The
existence of a vacancy or the creation of a new office was itself regarded as a case of
emergency or special occasion to which the [constitutional] mandate does not apply.
In this case the legislative act itself recited that a state of emergency exists and much of the
argument before this court has dealt with the question whether an emergency can, in fact, be
found to exist under the legislative recital and under the known facts relative to the
University. A determination of these questions we regard as unnecessary to our decision. The
existence of an emergency under State ex rel. Clarke v. Irwin is immaterial. The suggestion of
its materiality in the Arrington and Torreyson cases we reject.
[Headnote 4]
Upon our first issue we conclude that the vacancies existing in the four new offices were
such as could be filled by appointment prior to election.
We turn to the second question: that of the legislature's power to fill these vacancies by its
own appointment.
In support of the legislature's action defendants rely upon State ex rel. Clarke v. Irwin,
supra, which dealt with county officers and was concerned with Article 5, sec. 8 of the
constitution which provides in part: When any Office shall, from any cause become vacant
and no mode is provided by the Constitution and laws for filling such vacancy the
Governor shall have the power to fill such vacancy by granting a commission which shall
expire at the next election and qualification of the person elected to such Office."
73 Nev. 187, 193 (1957) State v. Elwell
any Office shall, from any cause become vacant and no mode is provided by the Constitution
and laws for filling such vacancy the Governor shall have the power to fill such vacancy by
granting a commission which shall expire at the next election and qualification of the person
elected to such Office. This court stated in an obiter dictum that since the legislature by its
own act had named the persons to fill the vacancies a mode had been provided by law and the
governor's power of appointment did not become effective.
In the present case we deal with vacancies in state offices. Article 17, sec 22 of the
constitution provides In case the office of any Justice of the Supreme Court, District Judge,
or other State officer shall become vacant before the expiration of the regular term for which
he was elected, the vacancy may be filled by appointment by the Governor until it shall be
supplied at the next general election, when it shall be filled by election for the residue of the
unexpired term.
Defendants contend that by its language this section should apply only to vacancies
occurring in an office after it had been regularly filled by election. Otherwise, they contend,
there could be no term for which he had been elected. Such construction, we feel, would
accomplish an absurd and senseless restriction. To illustrate: should an elected officer resign
before expiration of his term, the vacancy would be filled pursuant to this section by the
governor's appointment; should the appointee in turn resign before expiration of the term this
section could not apply since the term was one for which he had been appointed rather than
elected.
[Headnote 5]
In our view the language regular term for which he was elected is descriptive only and
must be construed as describing the term of any elective state office regardless of the manner
in which a vacancy in such office might occur.
[Headnote 6]
This being so, Article 17, sec. 22 of the constitution is controlling here. The vacancies,
until the next general election, can be filled only by appointment of the governor.
73 Nev. 187, 194 (1957) State v. Elwell
election, can be filled only by appointment of the governor. The appointment of the
defendants, then, was without constitutional authority. The prayer of the complaint in quo
warranto must be granted.
It is ordered that the State of Nevada have judgment ousting and debarring defendants
William Elwell, N. E. Broadbent, Grant Sawyer, and Cyril O. Bastian from office as members
of the Board of Regents of the University of Nevada.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 194, 194 (1957) Close v. District Court
MILDRED JANE CLOSE, Petitioner, v. SECOND JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for the County of Washoe, Department
No. 3, Respondent.
No. 4053
July 29, 1957 314 P.2d 379
Original petition for alternative writ of mandate to compel district judge to hear will
contest action, brought on ground that action had been pending for two years and would be
subject to further delay by reason of crowded condition of court calendar and that petitioner
learned that another case had been set on the date on which will contest had definite trial
setting. The Supreme Court held that allegations failed to show any such arbitrary refusal of
judge to proceed with trial as would justify ordering alternative writ to issue.
Petition denied.
Nada Novakovich, of Reno, for Petitioner.
1. Mandamus.
In original proceeding for alternative writ of mandate to compel district judge to hear will contest action,
brought on ground that action had been pending for two years and would be subject to further delay by
reason of crowded condition of court calendar and that petitioner learned that another case
had been set on the date on which will contest had definite trial setting, allegations
failed to show any such arbitrary refusal of judge to proceed with trial as would
justify ordering alternative writ to issue.
73 Nev. 194, 195 (1957) Close v. District Court
court calendar and that petitioner learned that another case had been set on the date on which will contest
had definite trial setting, allegations failed to show any such arbitrary refusal of judge to proceed with trial
as would justify ordering alternative writ to issue. NRS 3.040.
2. Mandamus.
Setting of trial dates, ordering of postponements for cause and other matters having to do with
arrangement of court calendars are essentially within the discretion of trial courts, and Supreme Court, in
absence of arbitrary action, will not interfere with arrangements of district court calendars. NRS 3.040.
OPINION
Per Curiam:
Petitioner, in seeking a writ of mandate, alleges the pendency of her contest of a purported
last will and testament of Svante Peterson, deceased, in the respondent court, originally
pending in Department 2 thereof, thereafter transferred to Department 3 thereof and thereafter
assigned to Honorable John Sexton, district judge of the Third Judicial District of the state,
and that the latter had accepted such assignment and agreed and consented to preside at the
trial thereof before a jury; that certain settings and continuances were made and ordered and,
on information and belief, a definite trial setting had been made for September 3, 1957,
with provision for a continuation thereof through September 7; that petitioner has learned that
another setting had been made of another case before Judge Sexton for September 3, 1957;
that she noticed a motion to set said cause for trial, together with a motion to set for hearing
her petition for summary judgment, but that Judge Sexton (whose residence is in Lander
County, Nevada) did not appear at the time noticed; that she has written Judge Sexton but has
received no reply; that the said contest has been pending for some two years and will now be
subject to further delay by reason of the crowded condition of the court calendar; that the
delay is unreasonable, unjustifiable and unjust, and that the postponement is an abuse of
discretion. She asks for an alternative writ addressed to the Second Judicial District Court,
Department 3 thereof and to Honorable John Sexton, district judge, commanding the
court to proceed with the trial before a jury "not later than September 3, 1957", or to
show cause why he should not do so, or to assign the cause to another district judge to be
heard not later than September 3, 1957, and that he also be commanded to set the
hearing of the motion for summary judgment prior to September 3, 1957.
73 Nev. 194, 196 (1957) Close v. District Court
Judicial District Court, Department 3 thereof and to Honorable John Sexton, district judge,
commanding the court to proceed with the trial before a jury not later than September 3,
1957, or to show cause why he should not do so, or to assign the cause to another district
judge to be heard not later than September 3, 1957, and that he also be commanded to set the
hearing of the motion for summary judgment prior to September 3, 1957. Other facts are
alleged, but further recital appears unnecessary.
[Headnotes 1, 2]
We find in the situation no such arbitrary refusal of the respondent to proceed with the trial
as to justify our ordering the alternative writ to issue. No reason or explanation is given for
the pendency of the case for some two years since it has been at issue, nor is any criticism
directed at the court or opposing counsel for such delay, except such as has occurred during
the present month. We are not advised by petitioner as to what, if any, preliminary matters
must be disposed of before trial, nor does the petition negative the pendency thereof. There is
indeed indicated a present confusion in the setting of two cases for September 3, 1957. There
are, however, three departments of the district court of said Second Judicial District, and there
is also statutory provision for the assignment by the chief justice of this court of a circuit
judge to sit in a congested district. NRS 3.040. The setting of trial dates, the ordering of
postponements for cause and other matters having to do with arrangement of court calendars
have always been considered as essentially within the discretion of the trial courts, and this
court, in the absence of arbitrary action, has never entered into, and is not now inclined to
interfere with any arrangement of district court calendars.
The petition for the alternative writ is denied and the proceeding dismissed.
____________
73 Nev. 197, 197 (1957) Riemer v. Riemer
PHYLLIS M. RIEMER, Appellant, v. KARL
RIEMER, Respondent.
No. 3986
July 30, 1957 314 P.2d 381
Appeal from the Second Judicial District Court, Washoe County, Grant L. Bowen, Judge,
Department No. 1.
Proceeding to reduce the amount ordered in a divorce judgment for the support of the
minor children of the parties. From an adverse judgment in the trial court the mother
appealed. The Supreme Court, Eather, J., held that the obligation of support by the father was
subject to readjustment as the circumstances directed; that claim of res judicata could not be
asserted for the first time on appeal; and that the mother was not entitled to award of
attorneys fees as costs but award must be based on contract which was not a part of the
appellate function of the Supreme Court.
Affirmed.
Wright, Wright, Green and Wright, of Los Angeles, California and John S. Field and
Morgan Anglim, both of Reno, for Appellant.
Oliver C. Custer, of Reno, for Respondent.
1. Divorce.
The obligation of support of minor children of father divorced from the mother remains with the father,
and it is not a fixed obligation but one which is subject to readjustment as the circumstances may direct,
and the court's power of adjustment is not limited to changes in the children's favor.
2. Divorce.
Where father divorced from mother of minor children showed a reduction of his income by
approximately one-half, court was authorized to modify an order for support of the minor children by
reducing the amount to $50 per month for each child during minority while such child was living with the
mother.
3. Divorce.
Where court reduced amount of divorced father's obligation to provide support for his minor children,
claim of mother that father's right to seek a reduction was barred by res judicata
asserted for the first time upon appeal would not be considered.
73 Nev. 197, 198 (1957) Riemer v. Riemer
that father's right to seek a reduction was barred by res judicata asserted for the first time upon appeal
would not be considered.
4. Divorce.
Where father sought modification of amount awarded by divorce judgment for support of minor children
living with the mother, counsel fees were not allowable to the mother as costs, but if recoverable at all,
must be on the basis of contract.
5. Divorce.
Where father sought modification of order providing for support of children and the mother asserted the
right to counsel fees, if contractual right thereto existed in the mother, it was required to be ascertained and
adjudicated in the usual manner and not in the first instance upon appeal by the mother from order reducing
the amounts awarded for support of the minor children.
OPINION
By the Court, Eather, J.:
This is an appeal taken by the mother of minor children from order of the trial court
reducing in amount the father's obligation to provide for support of the children. The parties
will be referred to as mother and father.
In December 1948 a final decree of divorce was granted the mother by the court below,
which decree, pursuant to agreement between the parties, awarded her custody of the minor
children and required the payment by the father of specified sums for the children's support.
In December 1953 the father filed a motion to modify the decree by reducing in amount his
obligation for support. In support of his motion he showed a reduction of his income by
approximately one-half. Upon this showing the modification was ordered to provide payment
by the father of the sum of $50 per month for each child during minority and while such child
was living with the mother. This appeal is taken from that order.
Two points are raised by the appeal.
First, the mother contends that the trial court's action is not supported by any evidence
touching upon the best interests of the minor children; that it serves only to reduce the father's
obligation of support.
73 Nev. 197, 199 (1957) Riemer v. Riemer
Upon the authority of Paine v. Paine, 71 Nev. 262, 287 P.2d 716, she contends that there
was nothing upon which the court's discretion properly could operate. This is a
misconstruction of the holding in the Paine case, which misconception, if allowed to stand,
would effectively preclude any reduction in support payments regardless of justification.
The Paine case was not concerned with the adjustment of a father's obligation of support.
In that case, by agreement and decree, the father had been relieved of all general obligation of
support, which obligation had been assumed by and placed upon the mother. The question
there was whether under the court's continuing jurisdiction over matters concerning the
welfare of the children a duty could be created where none before had existed; whether the
mother's duty could be shifted to the father. We held that this could not be done unless it
appeared that interests of the minor children were in some manner concerned with the
change. It was a case where action of the trial court amounted to relief of the mother without
affecting the monetary interests or needs of the children.
[Headnotes 1, 2]
In the present case the obligation of support remains with the father and serves to continue
in existence a relationship with which the children, the father and the court are concerned. It
is not a fixed obligation but one which is subject to readjustment as circumstances may direct,
and the court's power of adjustment is not limited to changes in the children's favor. There is
no merit in this contention.
Second, the mother contends that the father's right to seek reduction upon the ground
advanced by him has already been adjudicated against him and that he is barred by res
adjudicata.
In July 1952 the mother brought suit against the father in the District of Columbia and
secured judgment for arrears in support payments under the agreement between the parties
upon which the 1948 Nevada decree had been based. In that action the father sought revision
of his obligation of support upon grounds provided by the agreement.
73 Nev. 197, 200 (1957) Riemer v. Riemer
revision of his obligation of support upon grounds provided by the agreement. The court
ruled that grounds for revision did not exist. Judgment was rendered December 8, 1953. Eight
days later the father filed his motion for modification below.
Res adjudicata, however, was not asserted upon the hearing of this motion by the attorney
then representing the mother. The District of Columbia judgment was then in course of
appeal and this may well have been the reason. The mother here contends that since she was
but resisting the father's motion there was no occasion for her formally to plead res
adjudicata; that the trial court was well aware of the existence of the District of Columbia
judgment since reference constantly was made to it throughout the course of the hearing.
[Headnote 3]
The mother, however, countered the father's motion below with her own motion to
establish judgment for arrearages and reference to the District of Columbia judgment appears
to have been in connection with this matter. The fact remains that never during the course of
the hearing was the contention advanced that the father's right to seek modification was
barred by res adjudicata. The trial judge was in effect urged by both parties to an independent
exercise of discretion in the matter. Res adjudicata is asserted for the first time upon this
appeal and will not be considered. Allen v. Ingalls, 33 Nev. 281; 111 P. 34, 114 P. 758;
Dondero v. Turrillas, 59 Nev. 374, 94 P.2d 276; Harper v. Lichtenberger, 59 Nev. 495, 499,
92 P.2d 719, 98 P.2d 1069, 99 P.2d 474.
The mother seeks judgment for attorney's fees incurred in the taking of this appeal in
accordance with the father's obligation by agreement to pay all costs and expenses involved in
the divorce litigation. This contractual obligation is disputed by the father.
[Headnotes 4, 5]
This point was asserted by the mother upon her motion for allowances before this court
and was held not to entitle her to preliminary counsel fees in absence of a showing of
necessitous circumstances.
73 Nev. 197, 201 (1957) Riemer v. Riemer
of a showing of necessitous circumstances. Riemer v. Riemer, 72 Nev. 257, 302 P.2d 483.
Counsel fees are not allowed as costs in such a proceeding as this. If they are recoverable it
must be on the basis of contract. A determination of the father's contractual obligations and a
rendering of judgment thereon in the first instance is not a part of the appellate function of
this court. If contractual rights exist in the mother they must be ascertained and adjudicated in
the usual manner and not in the first instance upon appeal.
Affirmed.
The appellant is awarded costs.
Badt, C. J., and Merrill, J., concur.
____________
73 Nev. 201, 201 (1957) Shamberger v. Ferrari
HUGH A. SHAMBERGER, Director of the State Department of Conservation and Natural
Resources, Petitioner, v. LOUIS D. FERRARI, Respondent.
No. 4048
August 6, 1957 314 P.2d 384
Original petition for writ of mandate to compel surveyor general to turn over his
personnel, records, equipment, and funds to newly created department of conservation and
natural resources. The Supreme Court, Badt, C. J., held that where office of Surveyor General
was established by Constitution, but Constitution was amended eliminating all reference to
such office, amendment left Legislature free to act with reference to office, office became a
statutory and not a constitutional office, and was subject to abolishment forthwith by
Legislature, notwithstanding fact that office holder who had been elected as constitutional
officer had not completed his term of office.
Petition granted.
73 Nev. 201, 202 (1957) Shamberger v. Ferrari
Harvey Dickerson, Attorney General, and William N. Dunseath, Chief Deputy Attorney
General, of Carson City, for Petitioner.
John E. Gabrielli, of Reno, for Respondent.
1. Officers.
The Legislature may not abolish a constitutional office.
2. States.
Where office of Surveyor General was established by Constitution but Constitution was amended
eliminating all references to such office, amendment left Legislature free to act with reference to office,
office became a statutory and not a constitutional office, and was subject to abolishment forthwith by
Legislature, notwithstanding fact that office holder, who had been elected as constitutional officer, had not
completed his term of office. St.1957, c. 364 and sec. 16, subd. 2; NRS 229.010, 229.020,
281.010(m), 296.420; Const. art. 5, sec. 19; art. 15, sec. 9; art. 16, sec. 1.
3. Officers.
The power to modify nature or duties of an office or abolish it entirely or to consolidate it with another
office is coincident with legislative power to create the office in the first place.
4. Constitutional Law.
Officer who was elected to four-year term in 1954 accepted office charged with understanding that
Legislature could at any time, unless restricted by constitutional provisions, abolish it, and abolishment of
office in 1957 by statute did not deprive him of either a contractual or a property right. St.1957, c. 364 and
sec. 16, subd. 2; Const. art. 5, sec. 19.
5. Constitutional Law.
Supreme Court could not properly consider wisdom of act creating new state department.
6. States.
Purpose of act creating new State Department of Conservation and Natural Resources was to consolidate
and combine several different statutory offices under one administrative head for better administration of
main natural resources of state. St.1957, c. 364.
7. States.
Where statute creating new State Department of Conservation and Natural Resources provided for
appointment, qualification, compensation, powers and duties of director, creation of divisions within
department, appointment, powers and duties of heads of divisions, abolishment of offices of surveyor
General and transferred functions of Surveyor General and State Engineer to new department, and statute
comprised 11 printed pages, comprehensiveness of statute precluded contention of Surveyor General that
act had been merely colorable action to deprive him of his office. St.1957, c. 364 and sec. 16, subd. 2.
73 Nev. 201, 203 (1957) Shamberger v. Ferrari
8. States.
Where proceedings for constitutional amendment eliminating office of Surveyor General as constitutional
office were initiated as early as 1951, and in 1957 act was passed abolishing office, fact that Surveyor
General had received severe criticism in 1956 from grand jury, which recommended his impeachment, was
insufficient to rebut presumption that statute was enacted and office abolished by considerations which
affected public interest. St.1957, c. 364 and sec. 16, subd. 2.
9. States.
Where office of Surveyor General had been abolished and statute abolishing office directed that all
personnel, records, equipment and funds of Surveyor General be transferred to State Department of
Conservation and Natural Resources, it was the clear, mandatory duty of Surveyor General to comply with
statute. St.1957, c. 364 and sec. 16, subd. 2.
OPINION
By the Court, Badt, C. J.:
At the general election of November 1954 the voters ratified a constitutional amendment
initiated in 1951
1
which removed the office of surveyor general from the constitutional
officers required to be elected through statutory provisions to be enacted. At the same election
they elected respondent as surveyor general for a four-year term ending December 31, 1958.
The legislature of 1957 abolished the office of surveyor general and directed the surveyor
general to turn over his files etc. to the newly created State Department of Conservation and
Natural Resources. The act was to become effective July 1, 1957. Respondent, contending
that the statute was unconstitutional, refused to comply and this proceeding in mandamus was
brought to compel such compliance. We have concluded that the statute is in all respects
valid and that the writ should issue.
1. Respondent's chief contention is that on the date of his election in November 1954,
subsisting constitutional and statutory provisions provided for a term expiring December
31, 195S, and that no subsequent change of any constitutional or statutory provisions
could alter or affect that situation.
____________________

1
Constitution, Art. XVI, Sec. 1. An amendment to the constitution, proposed by a majority of both houses of
the legislature, referred to the next succeeding legislature and agreed to by a majority of that legislature, is
thereafter submitted to a vote of the people, and if approved by a majority of the electors such amendment or
amendments shall become a part of the constitution.
73 Nev. 201, 204 (1957) Shamberger v. Ferrari
of his election in November 1954, subsisting constitutional and statutory provisions provided
for a term expiring December 31, 1958, and that no subsequent change of any constitutional
or statutory provisions could alter or affect that situation. For the purposes of this opinion we
deem it unnecessary to determine whether the constitutional change became effective at the
date of the election under the provision quoted in footnote 1 or upon the canvassing of the
vote by the justices of the supreme court on the first Wednesday of December following,
NRS 296.420, that is, whether it became effective coincidently with respondent's election or
prior or subsequently thereto.
At the time of the election there were in effect Art. V, Sec. 19 of the constitution providing
that [a] secretary of state, a treasurer, a controller, a surveyor-general, and an
attorney-general, shall be elected at the same time and places, and in the same manner as the
governor. The term of office of each shall be the same as is prescribed for the governor. * *
*; also Art. V, Sec. 22, again naming these officers and providing that they shall perform
such other duties as may be prescribed by law.; also Art. V, Sec. 2, fixing the term of
governor for four years; also Art XV, Sec. 9, reading as follows: The legislature may, at any
time, provide by law for increasing or diminishing the salaries or compensation of any of the
officers whose salaries or compensation is fixed in this constitution; provided, no such
change of salary or compensation shall apply to any officer during the term for which he may
have been elected.; also Art. IV, Sec. 32, reading in part as follows: The legislature shall
have power to increase, diminish, consolidate, or abolish the following county officers:
County clerks, county recorders, auditors, sheriffs, district attorneys, county surveyors, public
administrators, and superintendents of schools. The legislature shall provide for their election
by the people, and fix by law their duties and compensation. * * *; also NRS 281.010,
providing: The following officers shall be elected: * * * (m) A surveyor general"; also NRS
229.010, defining qualifications for the office of surveyor general; also NRS 229.020,
providing that the surveyor general shall be elected for a four-year term and shall hold
until his successor shall qualify.
73 Nev. 201, 205 (1957) Shamberger v. Ferrari
surveyor general; also NRS 229.010, defining qualifications for the office of surveyor
general; also NRS 229.020, providing that the surveyor general shall be elected for a
four-year term and shall hold until his successor shall qualify.
Under these constitutional and statutory provisions, existing at the time respondent was
elected, it is argued by respondent that he was elected as a constitutional officer and not as a
statutory officer; that the legislature may not change the character of that office from a
constitutional to a statutory office during the term for which he was elected; that no change of
salary or compensation could apply to him during such term; and that the attempt of the
legislature in 1957 to abolish the office, a constitutional office at the time of respondent's
election to it, could not be validly effective during his term. In support of this he relies largely
upon language used in the dissenting opinion in State ex rel. Miller v. Lani, 55 Nev. 123, 27
P.2d 537. That case, however, had to do with Art. XV, Sec. 9, above referred to, prohibiting a
change of salary of an officer during his term,
2
where such salary was fixed by the
constitution. We are here concerned with the abolishment of the office, a distinction clearly
recognized even in the dissenting opinion.
3
Respondent also relies upon Moore v. Humboldt
County, 46 Nev. 220, 204 P. 880, 210 P. 401. That case, however, clearly recites the principle
that while the legislature may not abolish constitutional offices, it is free to abolish offices
which are the creatures of legislative enactment. The case held that the reduction of a
constable's salary from $1,800 a year to $5 a year was an attempt to abolish the particular
constableship of one county, contrary to the provisions of Art.
____________________

2
The majority opinion held that the proviso prohibiting a change of salary during the term referred only to
the office's named in the preceding clause, namely, those who's salary is fixed in this constitution.

3
Referring to Moore v. Humboldt County, 46 Nev. 220, 204 P.880, 210 P. 401, and state ex rel. Josephs v.
Douglass, 33 Nev. 82, 83, 110 P. 177, the dissenting opinion notes: But in those cases the court was dealing
more with the power of the legislature to abolish an office than it was with its right to increase or diminish the
salary of an officer during the term for which he may have been elected.
73 Nev. 201, 206 (1957) Shamberger v. Ferrari
to $5 a year was an attempt to abolish the particular constableship of one county, contrary to
the provisions of Art. IV, Sec. 25 of the constitution guaranteeing a uniform system of
township government throughout the state. Respondent also relies upon State ex rel. Josephs
v. Douglass, 33 Nev. 82, 110 P. 177, which had to do with an amendment of Sec. 32, Art. IV
of the constitution. The main holding of that case was that, although a constitutional
amendment deleted that portion of the section which required the election of a clerk of the
supreme court, it did not deprive the office of its constitutional status because the constitution
still was left with provisions having to do with important functions of that office, including
the provision (Art. XV, Sec. 8) requiring the opinions of this court to be filed with the clerk.
No such situation exists in the instant case.
[Headnote 1]
State ex rel. Josephs v. Douglass, supra, State ex rel. Howell v. LaGrave, 23 Nev. 373, 48
P. 193, 674, King v. Board of Regents, 65 Nev. 533, 200 P.2d 221, and other decisions of this
and other courts are cited by respondent in support of the general proposition that the
legislature may not abolish a constitutional office. This is freely conceded by petitioner and
the contention is, of course, correct. The present situation is, however, entirely different. In
the first place the constitutional amendment initiated in 1951 and ratified by the electors in
1954 eliminated all constitutional references, wherever appearing, to the office of surveyor
general. The amendment was in effect in 1957, at which time the legislature had before it its
own prior legislative acts requiring the election of the surveyor general and other officers,
defining their qualifications and fixing their salaries and terms of office. At that time the rule
against statutory abolishment of a constitutional office had no bearing, significance or
influence with reference to the legislative will concerning the office of surveyor general. It
thereupon enacted, and the governor approved, Chapter 364, 1957 Statutes, entitled An Act
to amend Title 1S of NRS relating to the state executive department by creating a new
chapter establishing the state department of conservation and natural resources;
providing for the appointment, qualifications, compensation, powers and duties of the
director of such department; providing for the creation of divisions within the department
and the appointment and powers and duties of the executive heads of such divisions, and
* * * to repeal chapter 229 of NRS relating to the surveyor general * * * to abolish the
office of surveyor general and delete references thereto and to transfer the functions of
the surveyor general, the state land register, the state forester fire warden and the state
engineer to the state department of conservation and natural resources; * * *."
73 Nev. 201, 207 (1957) Shamberger v. Ferrari
18 of NRS relating to the state executive department by creating a new chapter establishing
the state department of conservation and natural resources; providing for the appointment,
qualifications, compensation, powers and duties of the director of such department; providing
for the creation of divisions within the department and the appointment and powers and
duties of the executive heads of such divisions, and * * * to repeal chapter 229 of NRS
relating to the surveyor general * * * to abolish the office of surveyor general and delete
references thereto and to transfer the functions of the surveyor general, the state land register,
the state forester fire warden and the state engineer to the state department of conservation
and natural resources; * * *. The act is a comprehensive one, comprising eleven printed
pages. Subsection 2 of section 16 directs as follows: All personnel, records, papers, files,
registers, property, equipment and funds of the surveyor general, the state land register, the
state engineer, the state forester fire warden and the oil and gas conservation commission of
Nevada shall be transferred to the state department of conservation and natural resources. It
should be noted that prior to the amendment the state land register and the state forester fire
warden were offices held by the surveyor general ex officio.
[Headnotes 2-4]
2. This brings us to respondent's contention that, although by reason of the constitutional
amendment the legislature was left free to act, such action could not affect respondent's status
during the term for which he had been elected; that the constitutional amendment deleting the
office of surveyor general as a constitutional office could operate only in futuro; that the
legislative act of 1957 ordering the surveyor general, the state engineer and the oil and gas
conservation commission to transfer their records, equipment etc. to the State Department of
Conservation and Natural Resources gave retroactive effect to the constitutional amendment
and that the amendment contained no language indicating that such retroactive or
retrospective effect was intended.
73 Nev. 201, 208 (1957) Shamberger v. Ferrari
retroactive or retrospective effect was intended. We think it clear, however, that the
constitutional amendment instanter left the legislature free to act with reference to the office
of surveyor general. That office became forthwith a statutory and not a constitutional office.
Respondent's contention would write into the amendment a proviso to the effect that the
amendment would not be operative until the expiration of the surveyor general's present term
of office. We have no authority to write such proviso into the amendment, nor can we say that
such proviso is implied. As a statutory office the office of surveyor general was subject to
abolishment forthwith by the legislature. Denver v. Hobart, 10 Nev. 28, State ex rel. Josephs
v. Douglass, supra. It is uniformly held that the power to modify the nature or the duties of an
office or to abolish it entirely or to consolidate it with another office is coincident with the
legislative power to create the office in the first place. As expressed by the supreme court of
Alabama in Tayloe v. Davis, 212 Ala. 282, 102 So. 433, 436, 40 A.L.R. 1052: When, in the
exigencies of government, it is necessary to create and define new duties, the legislative
department has the discretion to determine whether additional offices shall be created, or
these duties shall be attached to and become ex officio duties of existing offices. The power
extends to the consolidation of offices resulting in abolishing one and attaching its powers
and duties to another. The 1957 statutory abolishment of the office of surveyor general did
not deprive respondent, despite his election in 1954 to a four-year term, of either a contractual
right or a property right. He accepted the office charged with the understanding that the
legislature could at any time, unless restricted by constitutional provisions, abolish it. See
cases collected in 42 Am.Jur. 888, Public Officers, Sec. 11, and Id. 905, Sec. 33.
3. Respondent's next attack on the legislative act of 1957 is two pronged. He contends that
the statute did not abolish the office of surveyor general (despite the title of the act to the
effect that it was to abolish the office and despite the wording of the act to the effect that
the office was abolished), but simply transferred all of the powers and duties thereof to
the newly created Department of Conservation and Natural Resources; that this is evident
from the fact that the newly created department comprises, among other things, the
division of state lands and the division of forestry, both of which covered the functions
theretofore existing in the surveyor general ex officio, as well as his official
functionssuch new divisions of such new department obtaining and utilizing all of the
"personnel, records, papers, files, registers, property, equipment and funds of the
surveyor general"; that the office was simply recreated under another name and that the
obvious intention and object of the act was illegally to remove respondent from his office;
that the whole act was a sham and a mere colorable abolishment of the office for the
purpose of getting rid of respondent as its incumbent.
73 Nev. 201, 209 (1957) Shamberger v. Ferrari
office and despite the wording of the act to the effect that the office was abolished), but
simply transferred all of the powers and duties thereof to the newly created Department of
Conservation and Natural Resources; that this is evident from the fact that the newly created
department comprises, among other things, the division of state lands and the division of
forestry, both of which covered the functions theretofore existing in the surveyor general ex
officio, as well as his official functionssuch new divisions of such new department
obtaining and utilizing all of the personnel, records, papers, files, registers, property,
equipment and funds of the surveyor general; that the office was simply recreated under
another name and that the obvious intention and object of the act was illegally to remove
respondent from his office; that the whole act was a sham and a mere colorable abolishment
of the office for the purpose of getting rid of respondent as its incumbent.
In support of this contention respondent relies on Malone v. Williams, 118 Tenn. 390, 103
S.W. 798, 822. This case involved an act attempting to abolish all offices existing under the
charter of the City of Memphis. The new act purported to abolish the offices of city assessor,
city attorney, assistant city attorney, judge and clerk of the city court, and to set up new ones
whose duties were substantially the same. The Supreme Court of Tennessee said: The
offices are substantially the same; the names being merely changed. Men cannot be legislated
out of office in this way. Even if the statute in question * * * could be treated as a valid
amendatory act on prior legislation, it could not have the effect to remove the officers above
named, and create a vacancy to be filled by appointment, since the same act which purports to
abolish the offices restores them under another name. However, the entire force of this case
was later, if not repudiated, at least so modified, restricted and watered down as to be left
without much force, in the later cases of Hunter v. Crump, MS. Jackson 1910; Van Dyke v.
Thompson, 136 Tenn. 136, 189 S.W. 62, and State ex rel. Linkous v. Morris, 136 Tenn. 157,
189 S.W. 67, all as reviewed in House v. Creveling, 147 Tenn.
73 Nev. 201, 210 (1957) Shamberger v. Ferrari
all as reviewed in House v. Creveling, 147 Tenn. 589, 250 S.W. 357, 362. In this case the
court said: [I]t is now settled law in Tennessee that the Legislature may adopt a new system
of government for such * * * agencies of the state as are not protected by the Constitution,
and to this end the Legislature may abolish the whole plan and the offices created for the
administration of the old plan in whole or in part. The rights of officers thus affected must
give way to what the Legislature conceives to be the public interest. * * * The bona fides of a
new order cannot be tested alone by the transfer of the duties of old offices to the new ones,
as has been argued. * * * Old offices may be abolished, not only when their functions become
useless but when, as constituted, they do not fit into the new scheme.
Respondent also relies on Crawford v. Hunt, 41 Ariz. 229, 17 P.2d 802. We have given
careful consideration to this case and consider it not in point either as to the facts or the points
of law involved, though some of the language used, taken out of context, would seem to
support respondent's view. The same applies to People ex. rel. Bolton v. Albertson (1873), 55
N.Y. 50.
[Headnotes 5-7]
This court cannot properly consider the wisdom of the 1957 act creating the new State
Department of Conservation and Natural Resources. Its clear purpose was to consolidate and
combine several different statutory offices under one administrative head for better
administration of the main natural resources of the state. We need refer only to the office of
the state engineer which, since its creation at the turn of the century, has continued to
adjudicate the relative rights of the water users on all of the principal stream systems of the
state, to regulate under more recent amendments the use of underground waters and the use of
stockwatering places on the public domain, thus to a large extent, subject to appropriate
action by the state courts in the nature of review, affecting the entire agricultural and stock
raising industry. The comprehensiveness of the 1957 statute is such as to preclude
respondent's contention that the whole thing was merely colorable action to deprive him
of his office, and that this is so patent as to compel our investigation of the motives of the
legislature in enacting the legislation.
73 Nev. 201, 211 (1957) Shamberger v. Ferrari
preclude respondent's contention that the whole thing was merely colorable action to deprive
him of his office, and that this is so patent as to compel our investigation of the motives of the
legislature in enacting the legislation. See City of Reno v. Stoddard, 40 Nev. 537, 167 P. 317,
and Worthington v. District Court, 37 Nev. 212, 142 P. 230, L.R.A. 1916 A, also Caldwell v.
Lyon, 168 Tenn. 607, 80 S.W.2d 80, 100 A.L.R. 1152, also annotation 4 A.L.R. 206.
[Headnote 8]
4. In support of his attack upon the motives of the legislature, respondent makes reference to
his affirmative defense that the act in question was solely and purely motivated as the result
of the Ormsby County grand jury report * * * wherein the present surveyor general received
severe criticism from said grand jury * * * with a strong recommendation for his
impeachment. The legislature failed, neglected and refused to impeach Mr. Ferrari, but
instead passed the act in question for the sole purpose of avoiding the issue and for no other.
The complete answer to this would appear to be that the grand jury report referred to was
filed June 20, 1956, whereas the proceedings for the constitutional amendment eliminating
the office of surveyor general as a constitutional office and paving the way for legislative
action were initiated as early as 1951. Respondent has submitted in support of this contention
nothing beyond his own statement, which we cannot substitute for the presumption that the
statute was enacted and the office of surveyor general abolished by considerations which
affect the public interest. Denver v. Hobart, 10 Nev. 28.
[Headnote 9]
As the office of surveyor general at the time of the enactment of the 1957 legislation was
an office created by the legislature and subject to being abolished by the legislature without
regard to the interests of respondent, and as its abolishment contravened no provisions of the
constitution, and as this court may not inquire into the wisdom of the legislation, and as it is
the clear, mandatory duty of the respondent under subsection 2 of section 16 of the act to
comply therewith and to transfer to the State Department of Conservation and Natural
Resources all records, papers, files, equipment etc. of the office, the writ of mandate as
prayed for commanding such transfer must issue, and it is so ordered.
Eather and Merrill, JJ., concur.
73 Nev. 201, 212 (1957) Shamberger v. Ferrari
16 of the act to comply therewith and to transfer to the State Department of Conservation and
Natural Resources all records, papers, files, equipment etc. of the office, the writ of mandate
as prayed for commanding such transfer must issue, and it is so ordered.
Eather and Merrill, JJ., concur.
____________
73 Nev. 212, 212 (1957) Ray v. Barringer
In the Matter of the Estate of CARL RAY, Deceased.
IDA ANGELOT RAY, Appellant, v. ROBERT E. BARRINGER, and FIRST
NATIONAL BANK OF NEVADA as Administrator of the Estate of
CARL RAY, Deceased, Respondents.
No. 4019
August 13, 1957 314 P.2d 378
Appeal from the Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
Department No. 1.
On motion to dismiss appeal.
Probate proceeding in which widow of decedent as parent and natural guardian of minor
who also had interest in estate made a motion concerning the interest of minor. The trial court
entered order denying motion and widow appealed. The administrator moved to dismiss
appeal for lack of an aggrieved party appellant. The Supreme Court held that widow was not
proper person to represent minor for whom an attorney had been appointed.
Appeal dismissed.
Harry E. Claiborne, of Las Vegas, for Appellant.
Hawkins & Cannon and Art Ham, Jr., all of Las Vegas, for Respondents.
73 Nev. 212, 213 (1957) Ray v. Barringer
Infants.
Where widow having a substantial interest in estate also sought to represent minor as parent and natural
guardian, but an attorney had been appointed to represent interest of minor as an heir, minor was not
properly before court on motion made by widow as parent and natural guardian of minor in a matter
respecting minor's interest in estate. NRS 136.200, 155.140.
OPINION
Per Curiam:
This is before the court on motion of respondent Barringer to dismiss the appeal for lack of
an aggrieved party appellant.
Appellant Ida Angelot Ray is the widow of decedent Carl Ray and possesses a substantial
interest in the decedent's estate. She is the mother by adoption of Carlita Nancy Ray, a minor,
who also possesses an interest in the estate under the decedent's last will.
A motion was made in the court below by appellant as parent and natural guardian of
Carlita Nancy Ray, a minor. The motion did not concern appellant or her interest in the
estate, but did concern the interest of the minor. Objection was made by respondent in the
court below that appellant was without authority to represent the minor child in the
proceedings before that court. This objection was sustained by the court below and appellant's
motion was denied. This appeal was then taken.
Because of unusual developments in the probate proceedings, the interests of the minor
quite clearly demand attention and a determination of her rights under present circumstances
should be had. Yet it is apparent that the court below properly refused to accept the appellant
as the spokesman for her adopted child and that we must refuse to do so as well. Pursuant to
NRS 136.200 an attorney was appointed to represent Carlita Nancy Ray as a minor heir. NRS
155.140 expressly provides that that attorney shall represent the minor in all subsequent
proceedings. These sections have already had the attention of this court in this very estate. In
Re Ray's Estate, 6S Nev. 492
73 Nev. 212, 214 (1957) Ray v. Barringer
Estate, 68 Nev. 492, 236 P.2d 300. The court-appointed attorney for Carlita Nancy Ray did
not represent her on the motion made below and does not represent her here.
The propriety of providing such official representation beyond possibility of any division
of interest is illustrated by the fact that when last this estate was before this court the interests
of appellant and the minor were diametrically opposed. Barringer v. Ray, 72 Nev. 172, 298
P.2d 933. Since each has an independent right to share in the estate, this opposition of interest
may well continue.
The appeal was taken by Ida Angelot Ray without specifying that it was taken by her in her
representative capacity. Even overlooking this defect, however, it cannot be said that any
aggrieved party is before this court on appeal. Ida Angelot Ray is not aggrieved. Carlita
Nancy Ray is not before this court. The motion of respondent must be granted.
Appeal dismissed.
____________
73 Nev. 214, 214 (1957) Hanley v. Tobler
THOMAS B. HANLEY, MARY LOU HANLEY, and ANDREW GRANBY HANLEY,
an Infant, Appellants, v. ALMA JEAN TOBLER, an Infant by BEN E. TOBLER,
Her Guardian Ad Litem, Respondents.
No. 3954
August 13, 1957 313 P.2d 1110
Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Action against minor, his father, and his mother, who signed minor's application for state
license to operate motor vehicle, for property damages suffered in automobile collision
involving automobile driven by minor. From a default judgment entered by the trial court, the
defendants appealed. The Supreme Court, Merrill, J., held that denial of motion to set aside
default was an abuse of discretion when court did not have personal jurisdiction over
minor, and when only allegation with reference to father was that he was owner of
automobile registered in Nevada.
73 Nev. 214, 215 (1957) Hanley v. Tobler
held that denial of motion to set aside default was an abuse of discretion when court did not
have personal jurisdiction over minor, and when only allegation with reference to father was
that he was owner of automobile registered in Nevada.
Reversed and remanded for further proceedings.
Ralph Morgali, of Las Vegas, for Appellants.
Michael L. Hines, of Las Vegas, for Respondents.
1. Appeal and Error.
An appeal from a default judgment will lie as to determinations made by trial court upon issues there
raised and presented for its determination.
2. Appeal and Error.
Whether a default entered against a defendant should be vacated raises an issue which may be reviewed
by Supreme Court. Rules of Civil Procedure, Rule 55(c).
3. Judgment.
Where one of defendants was not served with process, trial court did not acquire personal jurisdiction
over him and default judgment entered against such defendant upon his failure to appear should have been
set aside.
4. Judgment.
In action against minor, minor's mother, who signed minor's application for state license to operate motor
vehicle, and minor's father, for property damages suffered in automobile collision involving automobile
driven by minor, denial of motion to set aside default entered against mother was an abuse of discretion
when court did not have personal jurisdiction over minor. NRS 483.300.
5. Judgment.
In action against minor and minor's mother and father for property damages suffered in automobile
collision involving automobile driven by minor, denial of motion to set aside default entered against father
was an abuse of discretion when only allegation with reference to father was that he was owner of
automobile registered in Nevada.
OPINION
By the Court, Merrill, J.:
This is an appeal from a default judgment for property damages suffered by reason of an
automobile collision. The driver of the car responsible for the injury was appellant Andrew
Granby Hanley, a minor.
73 Nev. 214, 216 (1957) Hanley v. Tobler
was appellant Andrew Granby Hanley, a minor. Summons in the action was served upon his
parents, appellants Thomas B. Hanley and Mary Lou Hanley. After time for answer had
expired a default was entered by the clerk of the court below against all three of the
defendants. Two days later a motion was made on behalf of the defendants to vacate the
defaults. In support of the motion an affidavit was filed setting forth the inadvertent
miscalculation by the defendants of the time within which they had to answer. Hearing was
had upon the motion and the motion was denied and thereafter judgment was entered by the
court below in favor of the plaintiff and against all of the defendants for the sum of $633.42,
together with attorneys fees, costs and disbursements in the sum of $213.60. This appeal is
from the default judgment as so entered.
[Headnotes 1, 2]
An appeal from a default judgment will lie as to determinations made by the trial court
upon issues there raised and presented for its determination. Klepper v. Klepper, 51 Nev. 145,
271 P. 336. Upon this appeal it is asserted by appellants that the trial court was guilty of
abuse of discretion in denying their motion to set aside entry of default. This was an issue
raised by appellants in the court below and may, therefore, be reviewed by this court upon
appeal from default judgment.
Rule 55 (c) NRCP provides For good cause shown the court may set aside an entry of
default * * *. It may be noted as to all appellants that the motion to vacate was made with
promptness.
[Headnote 3]
Appellant Andrew Granby Hanley asserts that the trial court was without personal
jurisdiction over him in that he was not served with process. This assertion is fully supported
by the record. This being so the default clearly should have been set aside as to him.
[Headnote 4]
The cause of action against appellant Mary Lou Hanley is based upon her having signed
her son's application as a minor for a state license to operate a motor vehicle.
73 Nev. 214, 217 (1957) Hanley v. Tobler
vehicle. NRS 483.300 provides that such applications by persons under 18 years shall be
signed by either parent and further provides, Any negligence or willful misconduct of a
minor under the age of 18 years when driving a motor vehicle upon a highway shall be
imputed to the person who has signed the application of such minor for a permit or license,
which person shall be jointly and severally liable with such minor for any damages caused by
such negligence or willful misconduct.
Liability of this appellant thus is based upon negligence of her son imputed to her.
Respondent contends that under the statute her liability is both joint and several; that it was
optional with respondent whether she sued both the son and mother or sued the mother alone;
that having sued both, appellant Mary Lou Hanley was, nevertheless, liable severally. In
support of her proposition respondent relies upon Bosse v. Marye, 80 Cal.App. 109, 250 P.
693.
In this case we are dealing with matters within the discretionary control of the trial judge.
It would seem that so long as the son, named as a party to the action, is free in the action to
try the issue of his negligence, liability of the mother should not, in all fairness, be established
upon default and without regard to the outcome of the principal issue to be tried. Otherwise
we might face the anomalous situation of a judgment against the mother on imputation of
negligence which a judge or jury had found to be nonexistent. The default, therefore, should
have been set aside as to this appellant.
[Headnote 5]
Appellant Thomas B. Hanley asserts that the complaint does not state a claim against him
upon which relief could be granted. This is clearly so. The only allegation with reference to
this appellant contained in the complaint is that he is the owner of an automobile registered in
the State of Nevada. A default in the answering of such an allegation can hardly warrant entry
of judgment. The default should have been set aside to enable this appellant to assert his
rights in an orderly manner.
73 Nev. 214, 218 (1957) Hanley v. Tobler
We conclude that the trial court was guilty of abuse of discretion in denying the motions of
these appellants to set aside entry of default.
Reversed and remanded with instructions that the entry of default be set aside and that
these appellants as defendants be given time to answer or otherwise plead to the complaint on
file.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 218, 218 (1957) State v. Sorenson
THE STATE OF NEVADA, Appellant, v. HAROLD SORENSON,
and BEAUFORD JOHNSON, Respondents.
No. 3957
September 20, 1957 315 P.2d. 508
Appeal from the First Judicial District Court, Lyon County; Frank Gregory, Judge.
Defendants were convicted of grand larceny. From an order of the trial court granting
defendants new trial, the state appealed. The Supreme Court, Eather, J., held that where
defendants were ultimately convicted of grand larceny for theft of cash register thereafter
buried by them in chalk bed, and where throughout entire trial district attorney kept on
display in full view of jury panel a pair of shoes covered with some white powder, but never
introduced shoes in evidence, trial court's conclusion that such display, without attempt to
connect shoes with either defendant or with offense with which they were charged was
misconduct prejudicial to defendants' substantial rights and court's order setting aside verdict
for state and directing new trial did not constitute such an abuse of discretion as to warrant
reversal.
Affirmed.
73 Nev. 218, 219 (1957) State v. Sorenson
Harvey Dickerson, Attorney General, of Carson City, and Wayne O. Jeppson, District
Attorney, Lyon County, for Appellant.
John Squire Drendel, and William O. Bradley, both of Reno, for Respondents.
1. Criminal Law.
The discretion to set aside a judgment or to grant a new trial, after conviction, on ground of error which
has resulted in a miscarriage of justice or has actually prejudiced the defendant in respect to a substantial
right, is vested in the trial court after its examination of the entire case. NRS 169.110.
2. Criminal Law.
Nevada Supreme Court will not bar itself from holding, in a proper case, that judicial discretion has been
abused in granting a new trial after conviction.
3. Criminal Law.
Where defendants were ultimately convicted of grand larceny for theft of cash register thereafter buried
by them in chalk bed, and where throughout entire trial district attorney kept on display in full view of jury
panel a pair of shoes covered with some white powder, but never introduced shoes in evidence, trial court's
conclusion that such display, without attempt to connect shoes with either defendant or with offense with
which they were charged, was misconduct prejudicial to defendants' substantial rights and court's order
setting aside verdict for state and directing new trial did not constitute such an abuse of discretion as to
warrant reversal. NRS 169.110.
4. Criminal Law.
Trial court's failure, in granting new trial after conviction, to require compliance with statutory
requirement that motion for new trial based on misconduct be supported by affidavit would not be
determined erroneous where trial court granted said motion on additional ground which did not require
support by affidavit. NRS 169.110.
OPINION
By the Court, Eather, J.:
This is an appeal by the state from an order granting the respondents a new trial after they
had been found guilty by a jury of grand larceny. Such new trial was granted on account of
asserted misconduct in permitting to be exhibited to the jury a pair of chalk-stained shoes
which had not been admitted in evidence.
73 Nev. 218, 220 (1957) State v. Sorenson
to be exhibited to the jury a pair of chalk-stained shoes which had not been admitted in
evidence. The appeal is based on the contention that the granting of a new trial was an abuse
of the trial court's discretion. We have concluded that there was no such clear abuse of
discretion as to justify a reversal.
Defendants were charged with having stolen from the service station of C. T. Johnson,
near Fernley, Nevada, on Highway 40, a cash register containing $130 in money and about
$210 in checks and credit cards, all of a total value of about $730. Entirely free of the
assigned misconduct the testimony without contradiction (neither defendant took the stand or
offered any evidence) shows the following facts:
Charles Johnson assisted his father C. T. Johnson in the operation of the service station
and motel and was on shift about 6:00 a. m. September 27, 1955, when a Cadillac car drove
up; defendant Johnson alighted, went into the service station and asked Charles if he had a
tire that would fit the Cadillac. While Charles was searching for the tire in the adjacent
garage, he heard the car door slam and saw the car depart toward Lovelock, so fast that it
threw gravel back to where the witness stood. He noticed that the cash register was gone from
its place (no one else had been in the station for about an hour), and telephoned Larry Fister
of the State Highway Patrol, who arrived shortly, and was told of the circumstances, and
advised calling Paul Hollenbeck, deputy sheriff, whose patrol district was the Fernley area.
Both Fister and Hollenbeck had obtained a description of the car from Charles Johnson.
Hollenbeck ordered a stop. Fister proceeded in his car on Highway 40 toward Lovelock,
and after driving some 25 miles to a point near a road coming in from the chalk mines or
chalk beds, he saw the described Cadillac coming from the chalk beds toward the highway.
He tried to stop but was going so fast that he overshot the chalk beds road. The Cadillac
drove on to the highway and headed back toward Fernley and Fister turned and took off after
it.
73 Nev. 218, 221 (1957) State v. Sorenson
it. He observed two men in the car. Although he accelerated to 100 miles an hour he was
unable to overtake the Cadillac. Fister then, by means of his short-wave radio-telephone
contacted Hollenbeck advising him of the situation. There were an empty truck and trailer
that had just pulled up into the service station and Hollenbeck had them pull out across the
highway as a road block. The two defendants pulled up in their green Cadillac, were stopped
by the road block and were arrested.
Charles Johnson then accompanied Fister and Hollenbeck to the chalk mines, followed the
fresh auto tracks from the highway through various pits until they arrived at a place where a
fresh slide of chalk was evident. This proved, on investigation, to be the place where the cash
register, identified as the one in question, was buried. The front had been all smashed in and
broke up and forced open and the contents, excepting a few coins, removed. Charles
Johnson and his father later made a second trip to the chalk beds and, after sifting the chalk
with a pitchfork, discovered the checks and credit cards that had been in the cash register and
which had been taken in during the preceding night.
Examination of the floor mats on the Cadillac clearly disclosed evidence of chalk, as did a
hammer that lay behind the front seat of the car.
We come then to the asserted misconduct of the district attorney on the basis of which the
learned trial judge granted the motion of the defendants for a new trial.
The trial judge described the situation as follows: In this matter the factual situation was
that from the moment the jury was sworn and the state opened its case, continuing to the
moment when the state closed its case, there was on display in this court room a pair of tan
shoes covered with some white powder * * * along with the other exhibits that had been
marked for identification in the case. That pair of shoes reposed on the table directly in front
of the judge's bench for nearly all of the time, in the full view of the entire jury panel.
73 Nev. 218, 222 (1957) State v. Sorenson
They were moved about from time to time by the district attorney in the presentation of his
case. Except for the testimony of the witnesses as to footprints at the chalk beds, there was
not one scintilla to connect those shoes with either of the defendants or with the offense with
which they were charged. The shoes were never marked for identification; they were never
offered in evidence.
The learned trial judge then, after determining that it was impossible to state what
influence this might have had on the jury, emphasized, by constant repetition, what was
apparently considered to be the crux of the motionwhether this display of the shoes with
the chalk markings, when the shoes had not been introduced in evidence, prevented the
defendants from receiving a fair and impartial trial. He concluded that the display of the shoes
without attempt to connect them with the defendants was prejudicial to their rights, and
accordingly directed that the verdict be set aside and a new trial ordered.
The court instructed the jury: In the course of a trial, sometimes various articles are
displayed in the presence of the jury which are subsequently not received in evidence. You
are to consider only those exhibits which are received in evidence, in this case plaintiff's
exhibit B'. As to any other things which are displayed in the course of the trial, you are
instructed to disregard them and not to consider them in your deliberations.
[Headnote 1]
Sec. 11266 N.C.L., now NRS 169.110, provides: No judgment shall be set aside, or a
new trial granted, in any case on the ground of misdirection of the jury or the improper
admission or rejection of evidence or for error as to any matter of pleading or procedure,
unless in the opinion of the court to which application is made, after an examination of the
entire case, it shall appear that the error complained of has resulted in a miscarriage of justice,
or has actually prejudiced the defendant, in respect to a substantial right.
The state contends that the court's order granting the defendants' motion for a new trial
was an abuse of discretion requiring reversal.
73 Nev. 218, 223 (1957) State v. Sorenson
defendants' motion for a new trial was an abuse of discretion requiring reversal. It points to
sec. 11266 N.C.L., now NRS 169.110, quoted above. It contends that the record conclusively
shows that the verdict of guilty was not a miscarriage of justice and that the exhibiting of the
shoes could not have actually prejudiced either of the defendants in respect to a substantial
right for the reason that even if the implication to be drawn therefrom was that the shoes had
been worn by one of the defendants while in the chalk pits, such fact had been conclusively
proved by other independent evidence. It may well be that this court would have exercised its
discretion in a different manner. That discretion, however, was not and is not vested in this
court. Under our system it was properly vested in the trial court. That court was in a position
to observe the effect that the exhibiting of the shoes had upon the jury and to determine
whether this extrajudicial proof prevented the defendants from having a fair and impartial
trial.
In People v. Canfield, 173 Cal. 309, 159 P. 1046, 1047, the defendant after conviction
upon a charge of forgery, was granted a new trial, from which order the people appealed. The
Supreme Court of California unanimously held: It was for the judge of the trial court to say
what had been the effect of the evidence upon the jury, and whether or not the defendant, in
view of all the facts, had been given a fair trial. If the motion for a new trial had been denied,
the prosecution might then well have invoked in favor of the conviction the section of the
Constitution which provides that no new trial shall be granted in any criminal case on the
ground that improper evidence has been admitted, unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion that the error complained of
has resulted in a miscarriage of justice.' Section 4 1/2, art. 6, Constitution of California. But
this section of the Constitution was not designed to take from the trial court and transfer to
the appellate court the high discretion vested in that tribunal. The judge, who presided at the
trial of the cause, who heard the testimony, who observed the jurors and had an
opportunity also of testing the truth of the defendant's statements by noticing his
demeanor, was in a peculiarly favorable position for determining justly the question
whether or not the defendant had been accorded a fair trial.
73 Nev. 218, 224 (1957) State v. Sorenson
presided at the trial of the cause, who heard the testimony, who observed the jurors and had
an opportunity also of testing the truth of the defendant's statements by noticing his
demeanor, was in a peculiarly favorable position for determining justly the question whether
or not the defendant had been accorded a fair trial. We cannot follow the mental processes of
the judge. He may have been profoundly impressed with the influence upon the jury, to
Canfield's injury, of the introduction of the evidence tending to prove another offense. Or he
may have doubted the identification by the witnesses for the prosecution of Canfield. * * *
We can hardly manufacture in fancy an hypothetical situation in which a reviewing court
would be justified in questioning the discretion of the trial court who should grant a new trial
in a case involving a criminal charge. Surely there is no basis in the case before us for the
substitution of the discretion of this court for that of the superior court. We must assume that
the learned judge of the trial court acted with a full appreciation of his duties and obligations,
with the cited section of the Constitution in mind, and that the conclusion which he reached
was not governed by any idle nor any mere technical reasons.
[Headnote 2]
In People v. Rosenberg, 135 Cal.App. 766, 26 P.2d 922, an appeal by the state from an
order granting a new trial after conviction of a burglary, the foregoing case was cited at length
in refusing to interfere with the exercise of such discretion by the superior court. In the
Canfield case the court somewhat modifies its views that it can hardly fancy a case in which
the reviewing court would be justified in questioning the trial court's discretion in such case,
by the statement that at least in the case before us the court would not substitute its
discretion for that of the superior court. We too would impose a limitation. We are not
inclined to bar ourselves from holding in a proper case that judicial discretion had been
abused in granting a new trial after conviction.
73 Nev. 218, 225 (1957) State v. Sorenson
[Headnote 3]
The present appeal is no occasion for the exercise of discretion of this court. The exercise
of discretion in ruling upon the motion for new trial was exclusively vested in the district
court and we are unable to find such abuse of discretion as to warrant reversal.
[Headnote 4]
The state further contends that the statutory requirement that a motion for new trial based
on misconduct must be supported by affidavit was not complied with and that for such reason
it was error to grant the motion. As against this, respondents contend that as the misconduct
relied upon was in the presence of the court, requirement for filing of affidavits was not
applicable. We need not determine this point, as it is apparent that the trial court granted the
motion for the additional reason that his prior order denying a motion for mistrial was
errora ground not requiring support by affidavit.
Affirmed.
Badt, C. J., and Merrill, J., concur.
____________
73 Nev. 226, 226 (1957) McColl v. Scherer
JEFF McCOLL and MARGARET JEAN McCOLL, Husband and Wife, Appellants, v.
L. B. SCHERER, RUTH SCHELLANGE, Administratrix of the Estate of A. F.
SCHELLANGE, Deceased, FIRST NATIONAL BANK OF NEVADA, Executor of the
Estate of JACK KATLEMAN, Also known as JAKE KATLEMAN, Deceased, JOE HALL,
VIC HALL, FRANK EDDS, BERNARD VANDERSTEEN, ART STANLEY, and LAS
VEGAS CLUB, a Copartnership, Respondents.
No. 3974
September 23, 1957 315 P.2d 807
Appeal from judgment of Eighth Judicial District Court, Clark County; John F. Sexton,
Presiding Judge.
Action against employer for injuries allegedly sustained when third party assailant fired
pistol at cocktail waitress during the hours of her employment while she was serving people.
The trial court entered summary judgment for employer and plaintiffs appealed. The Supreme
Court, Badt, C. J., held that there was a substantial fact issue precluding summary judgment,
as to whether waitress' injury arose out of her employment, in which event her exclusive
remedy was workmen's compensation, or whether third person inflicted injury by reason of
enmity, grudge, or other personal relationship, in which event the accident did not arise out of
employment and was not compensable.
Reversed and remanded.
Foley Brothers, of Las Vegas, for Appellants.
Goldwater and Singleton, and Jones, Wiener & Jones, of Las Vegas, for Respondents L. B.
Scherer, Ruth Schellange, etc., et al.
Morse, Graves & Compton, of Las Vegas, for Respondent Bernard Vandersteen.
73 Nev. 226, 227 (1957) McColl v. Scherer
1. Judgment.
In action against employer for injuries allegedly sustained when third party assailant fired pistol at
cocktail waitress during the hours of her employment while she was serving people, there was a substantial
fact issue precluding summary judgment, as to whether waitress' injury arose out of her employment, in
which event her exclusive remedy was workmen's compensation, or whether third person inflicted injury by
reason of enmity, grudge or other personal relationship, in which event the accident did not arise out of
employment and was not compensable. NRS 616.010 et seq., 616.270, subds. 1, 2, 616.370, subds. 1, 2;
Rules of Civil Procedure, Rule 56.
2. Workmen's Compensation.
A cocktail waitress who allegedly sustained injuries when third party assailant fired pistol at her during
the hours of her employment while she was serving people did not have two co-existing remedial rights by
way of workmen's compensation and by way of personal injury action against employer but had an
exclusive compensation remedy if accident arose out of and in course of her employment and consequently
the mere filing of compensation claim was not such an election of remedies or such an estoppel as would
preclude waitress from maintaining personal injury action against employer. NRS 616.270, subd. 2,
616.370, subd. 2.
OPINION
By the Court, Badt, C. J.:
In this appeal from a summary judgment for defendants in which the plaintiffs sued for
damages for personal injuries allegedly the result of defendants' negligence, the main question
presented is whether such factual determinations remained for the court or jury as to preclude
a summary judgment. We have concluded that there was an undetermined factual question,
thus requiring a reversal of the summary judgment. Other questions are also disposed of.
The complaint of Margaret Jean McColl (hereinafter referred to as the plaintiff, although
her husband Jeff McColl was joined as co-plaintiff) alleged as follows:
5. On the 15th day of October, 1953, in the said Las Vegas Club, defendant Dale Eugene
Sollars wrongfully, maliciously and unlawfully assaulted the plaintiff Margaret Jean McColl
by firing two shots from a loaded pistol into the said plaintiff's body; * * * severely injuring
and disabling plaintiff Margaret Jean McColl.
73 Nev. 226, 228 (1957) McColl v. Scherer
pistol into the said plaintiff's body; * * * severely injuring and disabling plaintiff Margaret
Jean McColl.
6. That the employees of the said defendant Las Vegas Club whose duties were to keep
law and order in and about the premises of the said Las Vegas Club casino and bar, while
acting within the scope and course of their employment, negligently failed to keep law and
order in and about the premises of the said Las Vegas Club casino and bar, and as a direct and
proximate result of such negligence, the defendant Dale Eugene Sollars assaulted the plaintiff
Margaret Jean McColl as aforesaid which severely injured the said plaintiff Margaret Jean
McColl.
Defendants admitted paragraph numbered 5 and denied paragraph numbered 6. As
affirmative defenses defendants pleaded (1) that both parties were subject to the provisions of
the Nevada Industrial Insurance Act and that at the time of the accident plaintiff was acting
within the course and scope of her employment as a cocktail waitress for defendants, and
(2) that she had applied to the Nevada Industrial Commission for benefits under the act and
had actually received benefits from the commission in the sum of $29,394.60. Under the
Industrial Insurance Act the plaintiff was entitled to compensation for injuries by accident
arising out of and in the course of the employment * * *. NRS 616.270. Under the first
affirmative defense (although it is not alleged that the accident arose out of her employment)
defendants urge that compensation under the act was plaintiff's exclusive remedy. The second
affirmative defense is urged under theories of election of remedies, estoppel and res judicata.
[Headnote 1]
(1) Defendants took the deposition of plaintiff and developed the following facts: Between
10 and 10:30 p. m. on October 15, 1953, on the premises of the Las Vegas Club during the
hours of her employment there as a cocktail waitress and while she was in the performance of
her duties serving various people, she was shot by one Dale Eugene Sollars.
73 Nev. 226, 229 (1957) McColl v. Scherer
by one Dale Eugene Sollars. Nothing more. There is no doubt that she was injured in the
course of her employment, but as to the question whether the injury arose out of her
employment, the record leaves it entirely a matter of conjecture. Perhaps it did. Perhaps it was
the result of a personal grudge, animosity or other personal relations having nothing to do
with her employment.
It is conceded that the defendants elected to accept the provisions of the Nevada Industrial
Insurance Act, that the plaintiff had not rejected its terms, and that if plaintiff's injuries were
compensable under the act, or, more narrowly expressed, if the injury arose out of and in the
course of her employment, compensation by the commission was her sole remedy exclusive
of any rights of a common law action against defendants.
1
The deposition developed the fact
that plaintiff had filed her claim for compensation and had received large sums of money
from the commission and was receiving monthly compensation at the time of and after she
filed her complaint.
Defendants' motion for summary judgment was made upon the ground that there was no
genuine issue as to any material fact and that the defendants were entitled to judgment as a
matter of law. This in turn was based on the grounds (1) that the injuries alleged to have been
suffered by plaintiff were those arising out of and in the course of her employment; {2)
that she had in any event elected to proceed by claim against the commission and was
bound by such election; and {3) that the award by the commission was equivalent to a
finding that her injuries were the result of an accident arising out of and in the course of
her employment and was res judicata.
____________________

1
Sec. 616.270 1. Every employer within the provisions of this chapter, and those employers who shall
accept the terms of this chapter and be governed by its provisions, as in this chapter provided, shall provide and
secure compensation according to the terms, conditions and provisions of this chapter for any and all personal
injuries by accident sustained by an employee arising out of and in the course of the employment. 2. In such
cases the employer shall be relieved from other liability for recovery of damages or other compensation for such
personal injury, unless by the terms of this chapter otherwise provided.
Sec. 616.376 1. The rights and remedies provided in this chapter for an employee on account of an injury
by accident sustained arising out of and in the course of the employment shall be exclusive * * * of all other
rights and remedies of the employee * * *. 2. The terms, conditions and provisions of this chapter for the
payment of compensation and the amount thereof for injuries sustained * * * shall be conclusive, compulsory
and obligatory upon both employers and employees coming within the provisions of this chapter.
73 Nev. 226, 230 (1957) McColl v. Scherer
suffered by plaintiff were those arising out of and in the course of her employment; (2) that
she had in any event elected to proceed by claim against the commission and was bound by
such election; and (3) that the award by the commission was equivalent to a finding that her
injuries were the result of an accident arising out of and in the course of her employment and
was res judicata.
The meagerness of the facts appearing in the record leaves the factual situation as to how
the shooting occurred or what caused or occasioned it entirely undetermined. These things
might have been shown to the commission, but no part of the proceedings before the
commission is before the courtnot the nature of the claim presented nor the evidence
produced in support thereof nor the findings of fact of the commission if any such were made.
The rule is thus stated in Hudson v. Roberts, 75 Idaho 224, 270 P.2d 837, 839: It may be
stated as a general rule that where an employee is assaulted and injury is inflicted upon him
through animosity and ill will arising from some cause wholly disconnected with the
employer's business or the employment, the employee cannot recover compensation simply
because he is assaulted when he is in the discharge of his duties. Under such circumstances
the injury does not arise out of the course of employment, and the employment is not the
cause of the injury although it may be the occasion of the wilful act, and may furnish the
opportunity for its execution. It is likewise stated in Brookhaven Steam Laundry v. Watts,
214 Miss. 569, 55 So.2d 381, 59 So.2d 294, and in Foster v. Aines Farm Dairy Company,
Mo., 263 S.W.2d 421. See the many cases cited in the foregoing opinions.
Respondents place great reliance upon Industrial Indemnity Co. v. Industrial Accident
Commission, 95 Cal.App.2d 804, 214 P.2d 41, 46, and to the cases therein cited and to the
conclusion that the accident arose out of her employment because her employment required
her to be in what turned out to be a place of danger and that in order to receive an award he
need show merely that his work brought him within the range of danger by requiring his
presence in the precincts of his employer's premises at the time the peril struck", and that
the accident arose out of and was incident to the employment because it "was due to the
fact that his employment necessitated that he be at the place where the accident
occurred".
73 Nev. 226, 231 (1957) McColl v. Scherer
merely that his work brought him within the range of danger by requiring his presence in the
precincts of his employer's premises at the time the peril struck, and that the accident arose
out of and was incident to the employment because it was due to the fact that his
employment necessitated that he be at the place where the accident occurred. The street
accident cases, the frolicking and horseplay cases, skylarking cases etc. are discussed at
length. Attacks by insane persons and by indiscriminate shooting are referred to. However,
continual reference is made to the necessity of showing that plaintiff's work brought him
within the range of the danger and to the test of whether plaintiff is exposed to greater danger
by reason of his assignments than that to which the public is subjected. In the entire lengthy
opinion we find no cases (nor do we find such in the other authorities relied on) holding that
the accident arose out of the employment, and was thus compensable under the act, where the
injuries inflicted by the third person were by reason of enmity, grudge, or other personal
relationships, having no relation to the employment. In other words, neither the case nor the
authorities therein relied upon cover a case where a third party assailant injured the plaintiff
by picking out the plaintiff as his victim where the victim was at the moment in the course of
the employer's employment upon the employer's premises, and where the assault might as
well have been made, on account of such personal reasons, at any other time or place or under
any other conditions. Putting it more simply, if the plaintiff was injured, because she was who
she was, and not because her employment placed her in the position of danger, the cases cited
do not apply. It was the determination of this factual situation, particularly in view of
plaintiff's allegation that the attack was made wrongfully, maliciously and unlawfully, that
was entirely lacking when the court ordered summary judgment for the plaintiff.
In Parman v. Petricciani, 70 Nev. 427, 272 P.2d 492, we approved the suggestion of the
federal court therein quoted that trial judges should exercise great care in granting
motions for summary judgment, and held that a litigant has a right to a trial where there
is the slightest doubt as to the facts.
73 Nev. 226, 232 (1957) McColl v. Scherer
quoted that trial judges should exercise great care in granting motions for summary judgment,
and held that a litigant has a right to a trial where there is the slightest doubt as to the facts.
We there held further that the presence of a real or material issue of fact precludes a summary
judgment under Rule 56 NRCP.
[Headnote 2]
(2) Nor is plaintiff barred under the theory of an election of remedies by having filed her
claim with the commission. Here there were not two coexisting remedial rights. If the facts to
be developed, but which do not appear in the present record, are that plaintiff's injuries were
sustained by accident arising out of and in the course of her employment, her exclusive
remedy was for compensation through the commission, but if they did not so arise, the
commission had no jurisdiction to make an award in her favor and no election could have
arisen out of an application for such an award. The two remedies are mutually exclusive.
Robertson v. Robertson, 43 Nev. 50, 180 P. 122, 187 P. 929; Casey v. Musgrave, 72 Nev. 31,
292 P.2d 1066; Barringer v. Ray, 72 Nev. 172, 298 P.2d 933. For the same reason there was
no estoppel.
The summary judgment in favor of defendants and the order for the entry thereof are
hereby reversed with costs to appellants and the cause remanded for further proceedings.
Eather and Merrill, JJ., concur.
____________
73 Nev. 233, 233 (1957) Geurin v. State
VIRGLE GEURIN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 3960
October 8, 1957 315 P.2d 965
Appeal from the First Judicial District Court, Douglas County; Frank B. Gregory, Judge.
Prosecution for obtaining a narcotic drug by the use of a false name. The lower court
entered judgment of conviction and defendant appealed. The Supreme Court, Badt, C. J., held
that state court was not deprived of jurisdiction over the offense, on theory that the federal
government had preempted the field.
Judgment affirmed.
Richard L. Waters, Jr., of Carson City, for Appellant.
Grover L. Krick, District Attorney, Douglas County; Paul D. Laxalt, Deputy District
Attorney, Douglas County; Harvey Dickerson, Attorney General, Carson City, for
Respondent.
1. Commerce.
State court was not deprived of jurisdiction over prosecution for attempting to obtain a narcotic drug by
the use of a false name on theory that federal government had preempted the field. NRS 453.180.
2. Poisons.
In prosecution for obtaining a narcotic drug by the use of a false name, evidence that druggist required
defendant to sign a receipt for the drug, whereupon defendant signed a false name, was sufficient to sustain
conviction, without proof that use of such false name was motivating and causative basis for the druggist's
delivery of the narcotic to defendant. NRS 453.180.
OPINION
By the Court, Badt, C. J.:
[Headnote 1]
Appellant was found guilty of a violation of sec. 17 of the Uniform Narcotics Drug Act,
NRS ch. 453, sec. 453.180, providing in part: No person shall obtain or attempt to obtain a
narcotic drug * * * by the use of a false name * * *."
73 Nev. 233, 234 (1957) Geurin v. State
attempt to obtain a narcotic drug * * * by the use of a false name * * *. His appeal from the
judgment of conviction is based upon the contention that the state court was without
jurisdiction because the federal government had preempted the field. In support of this
contention he relies on Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct.
477, 100 L.Ed. 640. It is our conclusion that such case does not support appellant's contention
and that the judgment must be affirmed.
Commonwealth of Pennsylvania v. Nelson was based upon the conclusion that the Smith
Act, 18 U.S.C., Tit. 18, sec. 2385, prohibiting the knowing advocacy of the overthrowing of
the government of the United States by force and violence superseded the enforcibility of the
Pennsylvania sedition act proscribing the same conduct. The court held (1) that the scheme of
federal regulation was so pervasive as to make reasonable the inference that the congress had
left no room for the states to supplement it; (2) that in the field of legislation the federal
interest was so dominant that enforcement of state laws on the same subject was precluded;
and (3) that the enforcement of the state act presented a serious danger of conflict with the
administration of the federal program. The court said, adopting the language of the Supreme
Court of Pennsylvania, 377 Pa. 58 at 76, 104 A.2d 133 at 142, Sedition against the United
States is not a local offense. It is a crime against the Nation. As such, it should be prosecuted
and punished in the Federal courts where this defendant has in fact been prosecuted and
convicted and is now under sentence. It is not only important but vital that such prosecutions
should be exclusively within the control of the Federal Government * * *.
We think the instant case falls more clearly within the principle of Gilbert v. State of
Minnesota, 254 U.S. 325, 41 S.Ct. 125, 127, 65 L.Ed. 287 (distinguished in the prevailing
opinion in the Nelson case, but relied on in the dissenting opinion), in which the supreme
court upheld a Minnesota statute making it unlawful to advocate that men should not
enlist in the military or naval forces of the United States.
73 Nev. 233, 235 (1957) Geurin v. State
Minnesota statute making it unlawful to advocate that men should not enlist in the military or
naval forces of the United States. The federal interest was in raising armies and proscribed
identical activity. There the court, recognizing that only congress could raise and direct an
army, nevertheless held that the state had power to regulate the conduct of its citizens and to
restrain the exertion of baleful influences against the promptings of patriotic duty to the
detriment of the welfare of the Nation and State. See also Fox v. Ohio, 5 How. 410, 12 L.Ed.
213. The case is clearly distinguishable from cases involving alien registration, intimately
connected, as they are, with foreign relations, Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct.
399, 85 L.Ed. 581, or cases involving interstate commerce, Cloverleaf Butter Co. v.
Patterson, 315 U.S. 148, 62 S.Ct. 491, 86 L.Ed. 754, authorities on which the court relied in
the Nelson case.
[Headnote 2]
Appellant further contends that it was not proved that his use of a false name was the
motivating and causative basis for the druggist's delivery of the narcotic to him and that it
was, therefore, not proved that he obtained the drug by the use of a false name. The
contention would appear to be that it was necessary for the state to negative all other causes
that might possibly have motivated the druggist in delivering the drug to appellant. It appears
from the transcript that the druggist required appellant to sign for receipt of the drug,
whereupon appellant signed the false name of Virgle Moore. We do not find the argument
convincing.
Affirmed.
Eather and Merrill, JJ., concur.
____________
73 Nev. 236, 236 (1957) Mattice v. Bottom
LYLE MATTICE and VIVIEN MATTICE, Husband and Wife, Doing Business Under the
Firm Name and Style of Mattice Motors, Appellants, v. EMMETT BOTTOM and
LAURRAINE BOTTOM, Respondents.
No. 4002
October 17, 1957 316 P.2d 929
Appeal from the First Judicial District Court, Churchill County; Frank B. Gregory, Judge.
Buyers' action, on contract, for return of $675.75 credit due them for their delivery to
sellers of automobile to be credited upon buyers' future purchase of another automobile from
sellers who had gone out of business and had retained both automobile and credit. From
judgment of the trial court, for buyers, sellers appealed. The Supreme Court, Eather, J., held
that where language of contract could be reasonably interpreted as fixing $675.75 credit due
buyers for used automobile turned in to sellers, and as fixing such credit whether or not
sellers sold such automobile, complaint in effect based on buyers' rescission of contract with
demand for return of consideration properly stated cause of action against defaulting sellers.
Affirmed, with costs.
Royal A. Stewart and Richard W. Horton, of Fallon, for Appellants.
John W. Diehl and Mario G. Recanzone, of Fallon, for Respondents.
1. Sales.
Where language of contract could be reasonably interpreted as fixing $675.75 credit, toward purchase of
another automobile, due buyers for used automobile turned in to sellers, even if sale thereof produced less,
and as further fixing such credit whether or not seller sold such automobile, complaint in effect based on
buyers' rescission of contract with demand for return of consideration properly stated cause of action
against defaulting sellers who had gone out of business and had no automobiles to sell and who refused to
refund credit due buyers.
73 Nev. 236, 237 (1957) Mattice v. Bottom
2. Sales.
Evidence that sellers had gone out of automobile business was sufficient to show impossibility of sellers'
performance of contract to give buyers credit on new automobile for automobile turned in to sellers, so that
demand for performance was not a prerequisite to buyers' action for return of credit due them.
3. Appeal And Error.
Permitting buyer to testify over sellers' objection as to text of sign on closed door of sellers' automobile
shop, was not prejudicial as violation of best evidence rule, even if erroneous, where sellers failed to deny
such allegation of buyers' complaint.
4. Sales.
Notice of rescission was not essential to buyers' cause of action for rescission and return of consideration
on contract fixing credit due buyers for automobile turned in to sellers.
5. Money Received.
Ordinarily, restitution and compensation being alternative remedial rights, there is no reason for making
notice a prerequisite to election of either.
OPINION
By the Court, Eather, J.:
The trial court entered a judgment for plaintiffs against defendants for $675.75, with costs
and an attorney fee of $200, by way of return to plaintiffs of a credit in the principal sum
growing out of the delivery by plaintiffs to defendants of an automobile to be credited upon
the future purchase of another car by plaintiffs from defendantsdefendants having
thereafter gone out of business and not having returned the original car or credit to plaintiffs.
Appellants in their appeal from the judgment contend: (1) that the complaint failed to state a
cause of action; (2) that under the terms of their contract they were in no event entitled to
have the credit amount refunded; and (3) that the agreement in question did not require
defendants to remain in the automobile business. A more detailed statement of the facts
becomes necessary. The contract in question reads as follows: "MATTICE MOTORS
"MATTICE MOTORS
73 Nev. 236, 238 (1957) Mattice v. Bottom
MATTICE MOTORS
DODGE, PLYMOUTH, DODGE Job Rated' TRUCKS
Telephone 221-W
189 West Williams Avenue
FALLON, NEVADA.
June 23, 1954.
CREDIT MEMO.
In consideration of a 1950 Ford Club Coupe, Engine No. BOSR101126, being turned
in this date for credit, the following terms will apply: Credit to be applied towards purchase
of another car, to be credited upon washout of sale of above described car$675.75, this
amount being the anticipated selling price less 15% overhead. In addition to the above credit
the following shall apply.
Upon purchase of a new Dodge passenger car [an] additional credit (discount) of
$224.25.
Upon purchase of a new Plymouth passenger car, an additional credit (discount) of
$174.25.
Upon purchase of any used car selling for more than $900.00, [an] additional credit
(discount) of $99.25.
All of the above is based on the understanding and agreement that there will be no
additional trade-in involved in any car purchased.
This credit is to the account of Emmett or Laurraine Bottom of Fallon, Nevada, and is
non-transferrable, non-revocable, and non-refundable.
The above agreement of credit shall be valid for a period of 5 (five) years from date, after
which time, if this credit shall have not been used, such credit shall expire.
MATTICE MOTORS
Lyle Mattice.
/s/ Emmett Bottom.
Accepted: Emmett Bottom.
The court found the due execution of the credit memo and that its material provisions were
that plaintiffs were to have credit in the sum of $675.75 towards the purchase of another car;
that defendants are no longer engaged in the business of dealing in new and used vehicles,
and that the business known as Mattice Motors is no longer operating as a going
business; that plaintiffs cannot purchase an automobile under the 'credit memo' and are
entitled to a refund in the sum of $675.75."
73 Nev. 236, 239 (1957) Mattice v. Bottom
engaged in the business of dealing in new and used vehicles, and that the business known as
Mattice Motors is no longer operating as a going business; that plaintiffs cannot purchase an
automobile under the credit memo' and are entitled to a refund in the sum of $675.75.
[Headnote 1]
(1) Appellants contend that the complaint does not state a cause of action because it does
not allege the occurrence of a washout sales of the car, asserted to be a condition precedent.
The point is not well taken. The language of the credit memo may be more reasonably
interpreted as fixing the credit at the stated amount of $675.75 even if the sale produced less,
with further credits in addition if a new Dodge or a new Plymouth should be purchased by
respondents, and as fixing such credit whether or not appellants sold respondents' car.
Appellants further attack the complaint as relying on the fact that appellants had gone out of
the automobile selling business, while the agreement did not require them to remain in such
business, and nothing negatived their ability to sell respondents their choice of a Dodge,
Plymouth, etc., out of a catalogue selection. This is not convincing. Referring to this
allegation, and the proof in its support, the trial court said: They have no automobiles to sell.
Their shop is empty. By some act of the defendant himself he has made it impossible to
perform according to the terms of this memo.
[Headnote 2]
(2) It is further contended that plaintiffs neither alleged nor proved a demand for
performance or any refusal of the defendants to perform. If the allegation that defendants had
gone out of business showed impossibility of performance, as the trial court held and as we
think it did, a demand would have been a vain act and was not required. And as to the proof,
there was substantial evidence to support the court's finding.
73 Nev. 236, 240 (1957) Mattice v. Bottom
[Headnote 3]
(3) Error is assigned in the court's permitting one of the plaintiffs to testify over
defendants' objection that a sign on the closed door of defendants' shop said that it had been
closed by the Bureau of Internal Revenue; that this was in violation of the best evidence rule.
If so, it was not prejudicial. Defendants did not deny this allegation of plaintiffs' complaint.
[Headnotes 4, 5]
(4) It is further contended that if, as would reasonably appear, plaintiffs' cause of action is
in effect based on a rescission of the contract with demand for return of the consideration,
notice of rescission is essential to such cause of action.
While it is frequently stated that notice is prerequisite to an action for restitution, the cases
in which it is so held involve receipt by plaintiff from defendant of something of value under
the contract, or were of such nature that the defendant, unless so informed, would naturally
proceed with performance of his contract. Ordinarily, restitution and compensation being
alternative remedial rights, there is no reason for making notice a prerequisite to the election
of either. Woodward, The Law of Quasi Contracts, Sec. 267,(V). Or, as succinctly put by
Williston on Contracts (Rev.Ed.Sec. 1469), There seems no reason why a plaintiff who has
paid a sum of money for the defendant's promise to give him a horse may not, after breach of
his promise by the defendant, wait any period short of that fixed by the Statute of Limitations
before deciding whether to sue for the value of the horse or for the recovery of the price.
Neither in the briefs nor the assignment of errors nor the oral argument is the question of
measure of damages raised.
Affirmed with costs.
Badt, C. J. and Merrill, J., concur.
____________
73 Nev. 241, 241 (1957) Fox v. State
ROBERT F. FOX, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 3836
October 18, 1957 316 P.2d 924
Appeal from the Second Judicial District Court, Washoe County; John S. Belford, Judge,
Department No. 1.
Prosecution for murder wherein defendant interposed defense of temporary insanity. The
trial court entered judgment of conviction and defendant appealed. The Supreme Court,
Merrill, J., held that trial court did not err in failing to instruct jury that evidence of insanity
which did not relieve defendant of his guilt could be considered by jury for purpose of
determining degree of the crime and could be considered on issues of malice, premeditation,
deliberation and intent, and might reduce the grade of the offense charged, in view of fact
state does not accept doctrine of diminished or partial responsibility.
Judgment affirmed.
(Petition for rehearing denied December 19, 1957.)
Bert Goldwater, of Reno, for Appellant.
A. Dyer Jensen, District Attorney, Washoe County; Emile J. Gezelin, Assistant District
Attorney, of Reno; Harvey Dickerson, Attorney General, of Carson City, for Respondent.
1. Criminal Law.
A mind so prostrated by disease as to be unable to formulate an intent or to deliberate or premeditate is a
mind unable to know the nature and quality of a criminal act, or that the act was wrong, and is an insane
mind under definition of insanity as a defense to a criminal act, and in such a case, defendant is entitled
not to a reduction in degree of crime, but to outright acquittal.
2. Criminal Law.
Reduction in degree of crime is not available to the jury upon basis of mitigating circumstances, but only
upon basis of lack of proof of elements of crime as fixed by law.
73 Nev. 241, 242 (1957) Fox v. State
3. Homicide.
In prosecution for murder, wherein defendant interposed defense of temporary insanity, trial court did not
err in failing to instruct jury that evidence of insanity which did not relieve defendant of his guilt could be
considered by jury for purpose of determining degree of the crime and could be considered on issues of
malice, premeditation, deliberation and intent, and might reduce the grade of the offense charged, in view
of fact state does not accept doctrine of diminished or partial responsibility.
4. Criminal Law.
In prosecution for murder, wherein defendant interposed defense of temporary insanity, refusal of offered
instruction that evidence of insanity which did not relieve defendant of his guilt could be considered by
jury for purpose of determining degree of his crime was not error on theory that offered instruction was
proper on issue of premeditation and such refusal precluded defendant from asserting lack of
premeditation, in view of fact other instructions properly presented issue of premeditation, and in view of
fact offered instruction, read as a whole, was a capacity instruction, rather than a state of mind instruction.
5. Homicide.
In a murder prosecution, wherein defense of insanity was interposed, evidence tending to prove any lesser
degree of mental disorder than insanity is admissible as pertinent to state-of-mind issue of defendant
although not pertinent on issue of capacity to premeditate.
OPINION
By the Court, Merrill, J.:
This is an appeal from judgment of conviction of the crime of first degree murder for
which, pursuant to jury verdict, the appellant has been sentenced to suffer the death penalty.
The defense, in substance, was that of temporary insanity.
The sole assignment of error is failure of the trial court to give the following instruction:
It is a well settled rule of law that insanity is no excuse for the commission of a crime unless
there exists such defect of reason that the person charged did not know the nature and quality
of his act, or, if he did know it, that he did not know he was doing what was wrong. In other
words, a person may be insane and still responsible for his acts. However, evidence of
insanity, which does not relieve the defendant of his guilt, may still be considered by the
jury for the purpose of determining the degree of the crime.
73 Nev. 241, 243 (1957) Fox v. State
relieve the defendant of his guilt, may still be considered by the jury for the purpose of
determining the degree of the crime. In other words, the evidence of insanity may be
considered by you on the issues of malice, premeditation, deliberation and intent, and may
reduce the grade of the offense charged.
This instruction incorporates the so-called doctrine of diminished or partial responsibility
which has been expressly rejected in this State. State v. Skaug, 63 Nev. 59, 161 P.2d 708, 163
P.2d 130; State v. Fisko, 58 Nev. 65, 70 P.2d 1113. In the latter case, 58 Nev. 65, 78, 70 P.2d
1113, 1118, it was stated, If by reason of insanity appellant did not know the nature and
quality of his act, and that it was wrong, he was absolved from all guilt; otherwise in
whatever lesser degree his mind may have been affected by drink or other cause, he is
amenable to punishment as one of normal mind. This portion was quoted in State v. Skaug,
supra, 63 Nev. 68, 161 P.2d 712.
Notwithstanding these decisions we have, in conjunction with our opinion in State v.
Sollars filed this day, 73 Nev. 248, 316 P.2d 917, determined to reexamine the law of this
state respecting criminal responsibility and the definition of insanity as a criminal defense.
Counsel in both cases were advised of our decision and, through the filing of extensive briefs,
have greatly aided this court in its study of the problem. In the Sollars case we have
reexamined and have retained the right-and-wrong test as applied since State v. Lewis, 20
Nev. 333, 22 P. 241, and have considered and rejected the so-called irresistible impulse
test. In the instant case we adhere to our rule rejecting the doctrine of partial responsibility.
Support for the partial responsibility doctrine comes through analogy with the rule
applicable in cases of intoxication to the effect that evidence of intoxication may be
considered for the purpose of determining whether it was such as so clouds the mind * * * as
to interfere with the formation of deliberate and premeditated purpose to kill. State v.
Jukich, 49 Nev. 217, 238; 242 P.
73 Nev. 241, 244 (1957) Fox v. State
242 P. 590, 598. State v. Johnny, 29 Nev. 203, 223; 87 P. 3. It is contended that if cloudiness
of mind is a proper consideration in cases of voluntary drunkenness it must certainly be
proper in cases of mental illness.
In our view the analogy to intoxication cases is not valid. In State v. Johnny, supra, this
court approved an instruction which emphasized the degree of cloudiness of mind which is
necessary if the capacity to premeditate is to be held affected. The instruction stated, 29 Nev.
203, 222, 87 P. 3, 9, You should discriminate between the conditions of mind merely excited
by intoxicating drink and yet capable of forming a specific and deliberate intent to take life,
and such a prostration of the faculties as renders a man incapable of forming the intent, or of
deliberation or premeditation.
[Headnote 1]
A mind so prostrated by disease as to be unable to formulate an intent or to deliberate or
premeditate is a mind unable to know the nature and quality of a criminal act or that the act
was wrong. It is an insane mind under our definition of insanity. In such a case the defendant
is entitled not to a reduction in the degree of crime (as in the intoxication cases) but to
outright acquittal. By the same token, a mind capable of knowing right from wrong must be
regarded as capable of entertaining intent and of deliberating and premeditating. We may note
that acquittal by reason of insanity in Nevada results in commitment to the State Hospital,
NRS 175.445. If it be held that mental illness not sufficient to constitute insanity may destroy
one's capacity to premeditate, it may as reasonably be held to destroy one's capacity to
entertain intent. This could well result in verdicts of outright acquittal. The public protection
provided by commitment would be lost, although the acquittal was predicated upon lack of
capacity, that is upon mental illness against which the public should have protection.
[Headnote 2]
The rule of partial responsibility, by a confusion of terms all having to do with mental or
intellectual capacity, would seem simply to extend the area within which the conscience
of a jury may act upon what it regards to be mitigating circumstances.
73 Nev. 241, 245 (1957) Fox v. State
terms all having to do with mental or intellectual capacity, would seem simply to extend the
area within which the conscience of a jury may act upon what it regards to be mitigating
circumstances. By statute mitigation is available to the jury only within the area of first
degree murder where assessment of punishment by the jury is proper. Reduction in degree of
the crime is not available to the jury upon the basis of mitigating circumstances but only upon
the basis of lack of proof of the elements of the crime as fixed by law. State v. Skaug, supra.
[Headnote 3]
We conclude that the rejection of the doctrine of partial responsibility was proper.
[Headnote 4]
Defendant contends that even eliminating the issue of insanity, the offered instruction was
proper on the issue of premeditation; that this is an issue he is entitled to raise entirely apart
from that of insanity and as though the defense of insanity were not involved; that by the
court's refusal to give the offered instruction he has been precluded from asserting lack of
premeditation. He relies upon People v. Wells, 33 Cal.2d 330, 202 P.2d 53.
The court in that case was concerned with the exclusion of evidence, not of insanity but of
mental disorder short of insanity. The court expressly rejected the doctrine of partial
responsibility but held the evidence of mental disorder admissible as material to a finding of
malice. The court said, 202 P.2d 53, 69: Here, the offer was to show not insanity, not a lack
of mental capacity to have malice aforethought, but, rather, the fact of nervous tension and
that the particular tension was directly relevant to the issue of purpose, motive, or intent';
i.e., to the critical question as to whether defendant's overt act was done with malice
aforethought' or was actuated by fear, genuine although unfounded in ultimate truth.
We do not dispute the California holding. The problem there dealt with the exclusion of
material evidence.
73 Nev. 241, 246 (1957) Fox v. State
there dealt with the exclusion of material evidence. In the instant case all evidence of mental
disorder was admitted and was available to the jury together with all other material evidence
for its consideration of the state of mind of the defendant at the time of the homicide. We
note first that a study of the instructions as a whole convinces us that failure to give the
questioned instruction did not preclude such consideration by the jury.
Further, the Wells case (as quoted) properly lays emphasis upon the distinction between
the issue of capacity to entertain malice and the question whether malice in fact was
entertained. This distinction applies in the instant case.
We are here concerned with two separate factual issues. (1) Was the mind of the defendant
capable of premeditating? This is the capacity issue upon which we have, earlier in this
opinion, rejected the doctrine of partial responsibility. (2) Assuming that the defendant was
capable of premeditating, did he in fact premeditate? This is the state-of-mind issue. Upon
this issue all material evidence may be consideredevidence of what the California court has
referred to as tensions, including the evidence of mental disorder. But all evidence must be
taken into consideration. And it must show something more than mental disorder. If evidence
of mental disorder alone is to preclude premeditation it must be such as affects capacity.
Otherwise we have by circuitous reasoning placed upon the State the burden of disproving
mental disorder beyond a reasonable doubt. Upon the state-of-mind issue it is the tensional
circumstances of the case viewed in the light of the evidence of mental disorder which are the
proper concern of the jury. The issue is whether those circumstances, so viewed, raise
reasonable doubt that the mind, although capable of premeditating, did in fact premeditate.
In presenting these issues to the jury they should be carefully differentiated. Otherwise
confusion is bound to result for, at best, confusion is implicit in the situation. It will not do,
upon the first issue, to present conflicting and confusing instructions which in effect say that
although the defendant had mental capacity to premeditate, yet the jury in conscientious
judgment may find that he had not such capacity.
73 Nev. 241, 247 (1957) Fox v. State
that although the defendant had mental capacity to premeditate, yet the jury in conscientious
judgment may find that he had not such capacity.
The instruction with which we are here concerned was not a state-of-mind instruction,
addressing itself to the second issue. Rather, read as a whole, it was a capacity instruction.
It confined itself to evidence of capacity and invited a reduction of sentence upon the basis of
such evidence alone. To say that evidence of insanity * * * may reduce the grade of the
offense is not a true statement of the law. It is a statement of the doctrine of partial
responsibility. It was not error to reject this instruction as a state-of-mind instruction.
[Headnote 5]
Our reexamination of the Fisko and Skaug cases leads us to one further comment. In the
Fisko case, 58 Nev. 65, 79, 70 P.2d 1113, 1118, this court stated, Evidence tending to prove
any * * * lesser degree [of mental disorder than insanity] is pertinent to no issue. In the light
of our view that such evidence is pertinent to the state-of-mind issue we disaffirm that
statement.
Judgment affirmed. The district court is directed to make the proper order for execution of
judgment.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 248, 248 (1957) Sollars v. State
DALE EUGENE SOLLARS, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 3953
October 18, 1957 316 P.2d 917
Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Prosecution for murder. The trial court entered judgment of conviction and defendant
appealed. The Supreme Court, Merrill, J., held that separation of jury, over objection of
defendant, with admonition that jurors should not, among other things, read any newspaper
account of the trial, constituted an abuse of discretion, and in view of failure of state to
overcome inference that jurors read prejudicial statements carried prominently in the two
local newspapers throughout the course of the trial, communication and consequent prejudice
would be deemed established rendering such abuse of discretion prejudicial, notwithstanding
fact that there was no proof that any juror had read any of such newspaper accounts.
Reversed and remanded.
(Petition for rehearing denied December 19, 1957.)
See 73 Nev. 343, 319 P.2d 139 for opinion.
John W. Bonner, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City; and George M. Dickerson, District
Attorney, Clark County, for Respondent.
1. Criminal Law.
In criminal law, insanity, by whatever test it may be ascertained, is that degree or quantity of mental
disorder which relieves one of criminal responsibility for his actions.
2. Criminal Law.
In prosecution for murder, wherein defendant interposed defense of insanity, trial court properly defined
insanity in terms of the right-and-wrong test, and did not err in refusing to give proposed instruction on
insanity based on so-called irresistible impulse test.
3. Criminal Law.
The power of a court to grant separation of a jury in a capital case, over defendant's objection, must be
exercise with the greatest of care, and where there is any doubt or question, the rights
of the jurors to their customary daily comfort cannot weigh against the right of the
defendant to a fair trial for his life, and doubt and question should be aroused by an
objection to separation based upon any reasonable expectation.
73 Nev. 248, 249 (1957) Sollars v. State
with the greatest of care, and where there is any doubt or question, the rights of the jurors to their
customary daily comfort cannot weigh against the right of the defendant to a fair trial for his life, and doubt
and question should be aroused by an objection to separation based upon any reasonable expectation.
NRS 175.320.
4. Criminal Law.
In the absence of proof that newspaper accounts of defendant's trial for murder featured in headlines in
both of a city's newspapers were not read by separated jurors, Supreme Court could assume that such
accounts were communicated to the jury. NRS 175.320.
5. Criminal Law.
In prosecution for murder, separation of jury, over objection of defendant, with admonition that jurors
should not, among other things, read any newspaper account of the trial, constituted an abuse of discretion,
and in view of failure of state to overcome inference that jurors read prejudicial statements carried
prominently in the two local newspapers throughout the course of the trial, communication and consequent
prejudice would be deemed established rendering such abuse of discretion prejudicial, notwithstanding fact
that there was no proof that any juror had read any of such newspaper accounts. NRS 175.320.
6. Criminal Law.
In prosecution for murder, wherein defendant interposed defense of insanity, letters written by defendant
while a patient at a psychiatric hospital intercepted by the hospital and made a part of its file, addressed to
certain governmental agencies, and prominent persons, offered not to establish truth of statements they
contained, but as evidence of mental state of writer at time they were written, were admissible, and trial
court erred in sustaining an objection to their admission as hearsay.
7. Homicide.
In prosecution for murder, wherein defendant interposed defense of insanity, copy of order of defendant's
commitment to state hospital following a prior determination that he was insane for purpose of standing
trial, was admissible evidence having a direct bearing upon state of defendant's mental capacity, and fact
that it did not relate to a determination of the defendant's ability to distinguish between right and wrong but
rather to his ability to appreciate nature of proceedings being had against him did not render such order
immaterial, but merely went to its weight on issue of defendant's insanity.
OPINION
By the Court, Merrill, J.:
This is an appeal from judgment of conviction of murder in the first degree under which,
pursuant to jury verdict, the appellant has been sentenced to life imprisonment.
73 Nev. 248, 250 (1957) Sollars v. State
verdict, the appellant has been sentenced to life imprisonment. The defense interposed was
that of insanity. The appeal comes to us upon four assignments of error. The first relates to
our definition of insanity as a defense in a criminal action.
This court in 1889 in the case of State v. Lewis, 20 Nev. 333, 350, 22 P. 241, 247,
approved and adopted the right-and-wrong test patterned after the M'Naghten rules
pronounced by English judges in 1843. To establish a defense on the ground of insanity, it
must be clearly proved that at the time of committing the act the defendant was laboring
under such a defect of reason, from disease of the mind, as not to know the nature and quality
of the act he was doing, or, if he did know it, that he did not know he was doing what was
wrong.
Appellant attacks this test as unjust, unrealistic, scientifically false, and out-moded. In the
court below he objected to jury instructions incorporating this test and to instructions, also
approved in State v. Lewis, supra, and patterned after the M'Naghten rules, defining insane
delusions and establishing the conditions under which they may constitute a defense. In place
of these instructions he proposed what has come to be called the irresistible impulse test as
an alternative to the right-and-wrong test. The following instruction was offered: You are
instructed that in cases of delusional insanity, there is no legal responsibility either where
there is no capacity to distinguish between right and wrong, as applied to the particular act, or
where, even though there is such a capacity, if by duress of mental disease, he has so far lost
power to choose between right and wrong as not to avoid doing the act in question, so that his
free agency at the time was destroyed, and at the same time the alleged crime was so
connected with the delusion in the relation of cause and effect as to have been solely the
product of them. This instruction was refused by the trial court as an erroneous statement of
the law. Appellant assigns as error the giving of instructions following the M'Naghten rules
and State v. Lewis and the refusal to give his proposed instruction on irresistible impulse.
73 Nev. 248, 251 (1957) Sollars v. State
instructions following the M'Naghten rules and State v. Lewis and the refusal to give his
proposed instruction on irresistible impulse.
The M'Naghten right-and-wrong test has been criticized from the time of its
announcement. In 1869 the New Hampshire Supreme Court in State v. Pike, 49 N.H. 399, 6
Am.Rep. 533, rejected the test and provided instead that an accused is not to be held
criminally responsible if his unlawful act was the result of mental disease or mental defect.
Under this decision insanity was not defined as a matter of law, but in effect was made a
question of fact to be determined by the jury as any other fact would be determined.
Notwithstanding criticism, the M'Naghten rules have received widespread approval in the
courts of England and the United States. Not until 1954 did the New Hampshire rule receive
recognition from the courts of other jurisdictions. In that year the United States Court of
Appeals for the District of Columbia in Durham v. The United States, 94 U.S.App. D. C. 228,
214 F.2d 862, 45 A.L.R.2d 1430, adopted the New Hampshire rule in substance. The Durham
decision has been applauded by the psychiatric profession and has received approval in many
articles, notes and comments in the law journals. The courts remain slow to follow and more
reluctant to approve.
These developments, however, have led us to the conclusion that the right-and-wrong test
approved in State v. Lewis should be reexamined. Counsel in this case and in Fox v. State
(opinion handed down this day), 73 Nev. 241, 316 P.2d 924, were advised to this effect and
have, through carefully prepared briefs, greatly assisted this court in its study of the problem.
As a result of our study we have in this case rejected the irresistible impulse test. In Fox v.
State we have considered and rejected the so-called theory of diminished or partial
responsibility. The right-and-wrong test has been retained.
Criticism of the M'Naghten test is directed not only to the definition set forth but to a great
extent is directed to the fact that the definition is set forth by rule: a rule by which juries
must be bound and to which the testimony of experts must be directed.
73 Nev. 248, 252 (1957) Sollars v. State
to the fact that the definition is set forth by rule: a rule by which juries must be bound and to
which the testimony of experts must be directed. Judge Sobeloff, writing in 41 Am. Bar Assn.
Journ. 793, 794, states: We know today that the external manifestations of mental disease
follow no neat pattern permitting pat legal definitions suitable for universal application. * * *
There is nothing more futile than the search for an absolute test as a matter of law; for it is a
scientific fact, which has passed into common knowledge, that no such single test exists. * *
* The weight to be assigned to a single phenomenon is not to be determined by a rule of law
but in a factual judgment. He quotes from Professor Whitehorn of the Johns Hopkins
Medical School to this effect (p. 795): Psychiatrists are challenged to set forth a crystal-clear
statement of what constitutes insanity. It is impossible to express this adequately in words
alone, since such diagnostic judgments involve clinical skill and experience which cannot
wholly be verbalized.
But verbalization is necessary, even if difficult, if enlightenment is to be communicated to
a jury. Likewise a definition is necessary. Insanity and sound mind are terms used by
statute. NRS 193.210 and 194.010. This court, then, must continue to recognize the statutory
concept of insanity as the basis for relief from criminal responsibility. The term must be
given meaning and significance if a jury is to be able to find such a condition to exist.
[Headnotes 1, 2]
In criminal law insanity, by whatever test it may be ascertained, may be said to be that
degree or quantity of mental disorder which relieves one of the criminal responsibility for his
actions. The existence of mental disorder may well be a fact. The weight to be assigned to any
single phenomenon may well be a factual problem. It is quite another thing, however, to
qualify as factual the determination that a certain state of disorder ought to relieve one from
responsibility. This is moral, not factual, judgment.
73 Nev. 248, 253 (1957) Sollars v. State
factual, judgment. This is a determination which, to insure universal application in
accordance with the principles of government under law, has been given expression in rules
of law. The supporters of the Durham test contend that this judgment properly should be left
to the jury in each individual criminal trial, uncontrolled by any rule of law.
It is universally recognized, however, that not every mental disorder should be regarded as
sufficient to relieve one from criminal responsibility. So long as this be true it must be
recognized that there are limits which may, in the public interest, be validly imposed upon the
area within which the judgment of the jury and the psychiatrists can operate. In the interest of
uniform administration of criminal justice it may reasonably be contended that these limits
should be fixed as best they can and thus be made applicable in all cases.
To leave insanity undefined would be to eliminate the entire statutory concept of
insanity as the limited and uniform basis for relief from criminal accountability. It would
substitute in its place a jury power of moral judgment unlimited by those very bounds which
statute law contemplates and based solely upon the conscience and common sense of 12
persons. Such a sweeping change of approach, in disregard of limits and conditions
contemplated by statute, is, we feel, beyond the reach of the judicial function as that function
is recognized in this state.
In our view, therefore, the problem with which psychiatry and the law both are struggling
should be judicially attacked, not upon the basis of an abandonment of rule of law through
abandonment of definition, but upon the basis of agreement upon a test under which both law
and psychiatry can best operate.
We turn to the question whether the right-and-wrong test should be modified by
incorporating with it as an alternative the so-called irresistible impulse test. Upon this
question we have concluded that we must reject the proposed extension of the
right-and-wrong test for the reason that it cannot be said to reflect the current
enlightened public conviction.
73 Nev. 248, 254 (1957) Sollars v. State
reject the proposed extension of the right-and-wrong test for the reason that it cannot be said
to reflect the current enlightened public conviction.
Among the psychiatrists themselves there is much doubt as to the validity of the concept of
irresistible impulse in the sense of a loss of volitional control through mental disorder which
does not necessarily affect the intellectual powers of the defendant. In other words, the
psychiatrists as a group apparently are not agreed that the urge to commit an act which one
knows to be wrong can, through mental disorder, become irresistable. In the view of one
substantial faction the intellect and the will cannot thus be disassociated. Journ. of Cr. Law,
Criminology and Police Science, Vol. 46, Nov.-Dec. 1955, p. 463, Responsibility. Dr.
Cavanagh states in A Psychiatrist Looks At The Durham Decision, 5 Catholic Univ. of Am.
Law. Rev. 25, 46, The will is indirectly influenced by the emotions and unconscious factors,
but never coerced.
The definition of insanity advocated by the appellant is taken from language found in
Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am.Rep. 193, decided in 1887. In upholding the
validity of the irresistible impulse test that court states, p. 859, there must be two constituent
elements of legal responsibility in the commission of every crime * * * (1) capacity of
intellectual discrimination; and (2) freedom of will. A distinction between cognition and
volition as separate compartments of the mind was, perhaps, the accepted opinion of
psychiatrists at the time that opinion was written. Today, however, it is almost universally
agreed that the mind is not capable of being compartmentalized. The will, intellect and
emotions are considered to be interdependent, integrated one with the other, so that mental
illness or disorder cannot have an isolated effect.
Further, there is doubt among the psychiatrists as to their ability to distinguish between
those cases where lack of volitional control is properly attributable to mental illness and those
where it is due simply to a failure to resist that which could have been resisted had the power
to resist been exercised.
73 Nev. 248, 255 (1957) Sollars v. State
the power to resist been exercised. Guttmacher, 46 Journ. of Cr. Law, Criminology and Police
Science, supra, pp. 463, 466.
Furthermore, it is felt that to recognize the irresistible impulse test as an independent test
of insanity without specific limitation, is to make the defense of insanity available to
psycopaths and neurotics who ought not to be freed from accountability for their actions.
The result of what would appear to be several sources of doubt is summed up in this
statement by Dr. Guttmacher, 46 Journ. of Cr. Law, Criminology and Police Science, supra,
p. 466. One of the questions asked the members of the American Psychiatric Association
was: Do you believe the concept of the irresistible impulse is psychiatrically and legally
sound?' Of the three hundred and fifty who answered, sixty percent answered in the negative
and forty percent in the affirmative. Professor Jerome Hall in his recent article in 42 Am.
Bar. Assn. Journ., 917 ed. 985, states * * * psychiatrists are sharply divided on this question,
and * * * some of the most distinguished of them vigorously oppose the irresistible impulse
theory.
This difference of opinion alone would seem to administer the coup de grace to the
irresistible impulse test. With all the opposition to M'Naghten we must yet adhere to it until a
rule can be substituted which more accurately reflects current scientific knowledge. We can
hardly recognize as scientific truth a rule which has failed to receive the approval of what we
may regard as the most enlightened segment of society in this field of knowledge.
We conclude that the trial court did not err in refusing the instruction incorporating the
irresistible impulse test and in relying upon the rules approved in State v. Lewis, supra.
The next ground of appeal is that the trial court improperly permitted the jury to separate
during the course of the trial. Upon this ground we have concluded that a reversal is required.
Sollars, a young veteran of military service, with a background of mental disorder and of
psychiatric treatment and a military discharge with ten percent disability, shot and killed
a man in the Las Vegas Club located in Las Vegas, Nevada.
73 Nev. 248, 256 (1957) Sollars v. State
background of mental disorder and of psychiatric treatment and a military discharge with ten
percent disability, shot and killed a man in the Las Vegas Club located in Las Vegas, Nevada.
At the same time and place he shot an attractive cocktail waitress, as a result of which she has
since been paralyzed. Upon arrest he told a police officer of his background of mental
disorder and expressed the opinion that he could successfully defend the case upon the
ground of insanity. Subsequently, following psychiatric examination, he was found by a jury
to be insane in the sense that he could not properly undergo trial. He was committed to the
state hospital. The superintendent of the hospital, Dr. Sydney J. Tillim, had been called as an
expert on the hearing and had expressed his opinion that the defendant was insane. Later, Dr.
Tillim, being of the opinion that treatment at the state hospital had restored defendant's sanity
to the point where he could proceed with trial, gave notice of this fact to the sheriff of Clark
County and called upon him to take defendant into custody and return him to Clark County in
order that trial might be had. The sheriff refused to accept custody and the district attorney
refused to proceed with the matter. The district court took no action. A peremptory writ of
mandate from this court was issued compelling the trial court and judge to proceed with the
trial. Sollars v. District Court, 71 Nev. 98, 281 P.2d 396.
At the time of trial a request that separation not be permitted was made by appellant's
counsel after selection of the jury had been completed. He gave as his reason his expectation
that unfavorable publicity communicated to the jury would be prejudicial to his client. The
request was refused. Appellant contends that this amounted to abuse of discretion.
NRS 175.320 provides as follows: The jurors sworn to try a criminal action may, at any
time before the submission of the case to the jury, in the discretion of the court, be permitted
to separate or be kept in charge of a proper officer.
The jury, before each separation, was admonished by the court, in part, as follows: "The
court admonishes you that it is your duty not to converse among yourselves or with
anyone else pertaining to any matter connected with this trial or to read any newspaper
account thereof nor to listen to, nor observe, any radio or television comments thereon,
nor to form or to express an opinion thereon until the case is finally submitted to you."
73 Nev. 248, 257 (1957) Sollars v. State
the court, in part, as follows: The court admonishes you that it is your duty not to converse
among yourselves or with anyone else pertaining to any matter connected with this trial or to
read any newspaper account thereof nor to listen to, nor observe, any radio or television
comments thereon, nor to form or to express an opinion thereon until the case is finally
submitted to you. (Emphasis supplied.)
The appellant's expectations of unfavorable publicity were borne out. The two daily
newspapers published in the Las Vegas area carried daily accounts of the progress of the trial
from May 31 through June 6, 1955. The story of prejudice is written in the headlines. Here
the newspapers departed from objective reporting to express their editorial views. Here they
proceeded to weigh evidence, judge the validity of the defense of insanity, imply that the
burden should be upon the defendant and emphasize the significance of certain pieces of
evidence. This was matter which, under the judge's admonition, it may be assumed the jurors
absorbed, for it was only through a reading of headlines that the members of the jury could
determine, under the admonition, what articles they must not read.
We need not quote the daily series in full. A reference to two should suffice in
demonstrating that prejudice resulted. On June 2, 1955 the Las Vegas Sun carried a
seven-column, page one headline, stating Sollars Phony Insanity Told. On June 4 the same
paper carried a four-column, page one headline, stating Ruse By Sollars Exposed. A
two-column subheadline stated Young Killer Tells Plan to Claim False Insanity.
Furthermore, on June 6, the morning of the day the case was submitted to the jury, under a
two-column headline which did not too clearly relate the article to the murder trial and thus
warn away the reading juror, the Las Vegas Sun reached back to 1928 for an incident in the
life of the defendant's principal expert witness. (The article itself, it might be contended, did
not constitute an account of the murder trial which, under the court's admonition, the jurors
must not read.) The lead paragraph of this article read, "Dr.
73 Nev. 248, 258 (1957) Sollars v. State
lead paragraph of this article read, Dr. Sydney J. Tillim, the psychiatrist who forced the
murder trial of young Dale Eugene Sollars, and is now defending him on grounds of insanity,
once was accused by a coroner's jury of negligently causing the death of a four year old
child. The nature of the article was such that two days later, after the verdict of the jury had
been reached, the publisher of the paper, writing in his daily column after a return from out of
the state, apologized for what he conceded was a deliberate attempt at character
assassination.
We have no occasion here to judge the actions of the newspapers. The proposition which
faces us is simply that the defendant had a right which it was the duty of the court to protect:
a right that the adverse opinions of others be not communicated to the jury until its verdict
had been reached.
[Headnote 3]
Our statute upon separation of the jury goes far beyond most statutes in its accommodation
of the jurors. At common law separation of the jury was forbidden in all cases. Many states
today forbid it in felony cases. Most states forbid it in cases of capital offenses or where an
objection to separation is made by the defendant. Such was the law of Nevada prior to 1911.
Even under a statute such as our present one the power to grant separation in a capital case,
over the defendant's objection, must be exercised with the greatest of care. Where there is any
doubt or question the rights of the jurors to their customary daily comfort cannot weigh
against the right of a defendant to fair trial for his life. Doubt and question should be aroused
by an objection based upon any reasonable expectation.
The expectation of the defendant in this case would appear to have been reasonable. Public
animosity was to be expected. An attractive young woman, a resident of Las Vegas, lay
paralyzed as a result of the defendant's conduct. She was specified as a witness for the State.
Public officials of Clark County, in well-publicized proceedings reaching to this court, had
already demonstrated their impatience with Dr. Tillim and their lack of sympathy with the
successive opinions expressed by him respecting this defendant.
73 Nev. 248, 259 (1957) Sollars v. State
of sympathy with the successive opinions expressed by him respecting this defendant. That
this attitude would find reflection in the temper of the community and of its press and would
affect public expressions relating to the validity of the defense of insanity was to be
anticipated as a reasonable probability. Doubt and question as to whether prejudice would
result from separation must, under the circumstances, at least have been stirred to life by the
defendant's statement of his grounds for objection. The admonition given to the jury in this
case was wholly insufficient to lay such doubt to rest.
[Headnote 4]
The State contends that before prejudice can be said to have resulted the fact of
communication to the jury must be established. In this case there was no proof that any juror
had read any of the headlines or articles relating to the trial or to its witnesses. The State
contends that we cannot assume the fact that they were read. In McHenry v. United States, 51
App.D.C. 119, 276 F. 761, 764, 34 A.L.R. 1109, 1112, the United States Court of Appeals for
the District of Columbia stated [34 A.L.R. 1109, 1112] In this case, immediately after the
jury was sworn, the trial justice cautioned them that, during their separation, they must not
discuss the case with any person whatever, or permit any person to come and discuss the case
with them, and must not read anything they might see in the press with regard to the case. He
said they could tell by the headlines whether or not there was any reference to the case in any
paper that might come into their hands. * * * No contention is made that any member of the
jury violated these instructions, but it is said that the court permitted them to read the
headlines, and that, since the following headline, Prosecution Charges Boy Slayer of Two
Here Killed Man Near Boston,' appeared in one of the city papers during the trial, there is a
presumption that some of the jurors read it, and hence, that prejudice resulted to the
defendant. There was no proof that any of them had read it. We may assume that they saw
something of the public press, as was said in the Holt Case [Holt v. United States, 218 U.S.
245, 31 S.Ct. 2, 54 L.Ed. 1021], but not that they saw any particular article in a particular
newspaper.
73 Nev. 248, 260 (1957) Sollars v. State
that they saw any particular article in a particular newspaper. The mere opportunity to see it
raises no presumption that it was seen.
It would seem that the McHenry case is clearly distinguishable upon the facts. It was
dealing with a single headline in a single newspaper in the metropolitan area of the city of
Washington. No reasonable inference could be drawn under the circumstances that the
particular headline had been read by any juror. In the case before us we have a daily sequence
of prejudicial headlines in the only two daily newspapers serving the city of Las Vegas. If, as
stated in the McHenry case, we may assume that [the jurors] saw something of the public
press we cannot realistically avoid the assumption that they observed seven-column,
page-one, headlines carried in both newspapers. If such was not the fact the State could well
have overcome the inference by proof.
[Headnote 5]
Upon this ground of appeal we conclude that it was abuse of discretion to permit
separation of the jury over objection of the defendant under the admonition given.
Communication (and consequent prejudice) having been established we conclude that the
abuse of discretion demands reversal.
The remaining assignments of error have to do with the exclusion of evidence of mental
disorder.
[Headnote 6]
The defendant offered in evidence letters written by him while a patient at a psychiatric
hospital which were intercepted by the hospital and made a part of the hospital file. They
were characterized by the identifying witness, a hospital official and expert witness for the
defendant, as classic paranoid letters. They were addressed to Pope Pius XII, the
Commander-In-Chief, the F.B.I., the United States Counter Intelligence, the United States
Secret Service, Walter Winchell and others. The State objected to the offer upon the ground
that the letters were hearsay and self-serving. The objection was sustained.
73 Nev. 248, 261 (1957) Sollars v. State
This was error. The letters clearly were not hearsay. They were offered not to establish the
truth of the statements they contained but as evidence of the mental state of the writer at the
time they were written. In Kimble v. First National Bank of Nevada, 73 Nev. 25, 307 P.2d
615, we held that what a man says to those about him is a reliable test of the strength or
weakness of his mental condition. This rule would apply as well to written as to oral
declarations.
[Headnote 7]
The defendant also offered in evidence a copy of the order of his commitment to the
Nevada State Hospital following the determination of the court below that he was insane for
the purpose of standing trial. The objection of the State was sustained. This was error.
The order was competent, indeed indisputable, evidence that upon the commitment date
the defendant was insane for the purpose of standing trial. Together with other evidence of
mental disorder prior and subsequent to the criminal act charged, this evidence was material
in order that the mental state of the defendant might be fully considered by the jury. As stated
in 2 Wigmore on Evidence (3d. ed.) 25, sec. 233, A condition of mental disease is always a
more or less continuous one, either in latent tendency or in manifest operation. It is therefore
proper, in order to ascertain the fact of its existence at a certain time, to consider its existence
at a prior or subsequent time.
The order, of course, did not relate to a determination of the defendant's ability to
distinguish right from wrong but rather to his ability to appreciate the nature of the
proceedings being had against him and to assist in his own defense. This fact does not render
the order immaterial. It had a direct bearing upon the state of the defendant's mental
capacities. With respect to its bearing upon the precise issue before the jury, its weight was
for the jury to determine together with all other evidence presented. People v. Kirby, 15
Cal.App. 264, 114 P. 794; State v. Duncan, 244 N.C. 374, 93 S.E.2d 421; Poole v. State, 212
Ark. 746, 207 S.W.2d 725; State v. St.
73 Nev. 248, 262 (1957) Sollars v. State
421; Poole v. State, 212 Ark. 746, 207 S.W.2d 725; State v. St. Clair, Mo. 1953, 262 S.W.2d
25, 40 A.L.R.2d 903; Smedley v. Commonwealth, 139 Ky. 767, 127 S W 485; State v.
McMurry, 61 Kans. 87, 58 P. 961; Wheeler v. State, 34 Ohio St. 394, 32 Am.Rep. 372;
Hempton v. State, 111 Wis. 127, 86 N.W. 596; Sherrill v. People, 75 Colo. 401, 225 P. 840.
See People v. Superior Court of Contra Costa County, 4 Cal.2d 136, 142, 47 P.2d 724, 730.
Reversed and remanded for new trial.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 262, 262 (1957) Vermillion v. Justice Court
MILTON VERMILLION, Appellant, v. THE JUSTICE COURT OF SPARKS TOWNSHIP,
County of Washoe, State of Nevada, and HARRY Z. GUERIN, Justice of the Peace of Said
Court, Respondents.
No. 3997
October 23, 1957 316 P.2d 928
Appeal from the Second Judicial District Court, Washoe County; Gordon Rice, Judge,
Department No. 3.
Action in Justice of the Peace Court in Washoe County against resident of Lyon County to
recover for debt incurred therein for professional services. Defendant had been served with
process. Default judgment entered by justice of the peace. Defendant sought writ of certiorari,
contending action had been brought in wrong township. The trial court denied defendant writ
of certiorari and the defendant appealed. The Supreme Court, Merrill, J., held that defect was
not jurisdictional but one of venue which defendant could waive and justice of peace had not
been deprived of jurisdiction.
Judgment affirmed.
73 Nev. 262, 263 (1957) Vermillion v. Justice Court
Howard E. Browne, of Reno, for Appellant.
Stewart & Horton, of Reno, for Respondents.
1. Justices of the Peace.
Where action was commenced in Justice of Peace Court in Washoe County against resident of Lyon
County to recover for debt incurred therein for professional services and default judgment had been entered
against defendant, who had been served with process, defect was not jurisdictional but one of venue which
defendant could waive and justice of the peace had not been deprived of jurisdiction. Justices' Courts
Rules, Rule 4(h); NRS 66.010, subds. 7-9; Justices' Courts Rules, Rule 38, subd. 4; NRS 2.120.
2. Justices of the Peace.
Justices' Courts Rules must be read and construed in context with procedural statute law. Justices' Courts
Rules, Rule 4(h); NRS 66.010, subds. 7-9; Justices' Courts Rules, Rule 38, subd. 4; NRS 2.120.
OPINION
By the Court, Merrill, J.:
This is an appeal from judgment of the Washoe County District Court denying writ of
certiorari. Appellant sought to secure a writ directed to respondent justice of the peace
contending that respondent had proceeded without jurisdiction to render judgment against
appellant. The basis for appellant's contention of lack of jurisdiction was that the action
against appellant had been brought in the wrong township. We have concluded that under
applicable law this did not deprive the justice of the peace of jurisdiction.
The action was commenced in Sparks Township, Washoe County, to recover a debt
incurred for professional services. The defendant (appellant here) resided in Lyon County,
Nevada, the debt was incurred there and defendant was served with process there. He did not
voluntarily appear and judgment against him was entered upon his default.
Rule 4(h) of the Justices' Courts Rules provides as follows: The summons may be served
out of the county in which the action is brought.
73 Nev. 262, 264 (1957) Vermillion v. Justice Court
Section 66.010 NRS provides as follows: Actions in justices' courts must be commenced,
and, subject to the right to change the place of trial as provided in this chapter, must be tried:
* * * 7. When a person has contracted to perform an obligation at a particular place, and
resides in another county, township or city, in the township or city in which such obligation is
to be performed, or in which he resides; and the township or city in which the obligation is
incurred shall be deemed to be the township or city in which it is to be performed, unless
there is a special contract to the contrary.
8. When the parties voluntarily appear and plead without summons, in any township or
city in the state.
9. In all other cases, in the township or city in which the defendant resides.
It would appear under this section that, while personal jurisdiction over the defendant had
been obtained, the action properly should have been brought in the proper township in Lyon
County rather than in Sparks Township, Washoe County.
[Headnote 1]
That this defect is not jurisdictional, but rather is one of venue which the defendant can
waive, clearly appears from Rule 38 of the Justices' Courts Rules. This rule reads Judgment
that the action be dismissed, without prejudice to a new action, may be entered with costs in
the following cases: * * * 4. When it is objected at the trial, and appears by the evidence, that
the action is brought in the wrong county, township or city; but if the objection is taken and
overruled, it is cause only of reversal on appeal and does not otherwise invalidate the
judgment; if not taken at the trial, it is waived.
These citations of the law call for some explanation lest it appear that we have, by rule,
enlarged the jurisdiction of justices' courts as fixed by statute.
Under the rule-making power of this court, NRS 2.120, all statutes regulating civil
procedure in effect July 1, 1951, were deemed to be rules of court. An independent body of
procedural rules applicable to justices' courts, comparable to NRCP, has not yet been
prepared although the subject is under study by a committee of attorneys appointed by
this court.
73 Nev. 262, 265 (1957) Vermillion v. Justice Court
although the subject is under study by a committee of attorneys appointed by this court. In the
meantime, faced with the imminent publication of NRS and the legislative reenactment of all
statute law (accomplished January 25, 1957, ch. 2, 1957 Stats. Nev.), it was felt advisable last
year to make at least a start upon the work of removing from the area of statute law such
provisions as should now be covered by rule.
[Headnote 2]
This start is to be found in our Justices' Courts Rules now published and incorporated
in all sets of NRS immediately following Title 6 (Justices' Courts and Civil Procedure
Therein) and, by recent court order formally promulgated as rules of court as of November 1,
1957. These rules, however, are of statutory origin. A glance at the source notes, both of the
sections of Title 6 and of the rules, will show that, in general (and specifically as to the three
citations here involved) all have the same statutory source: the Civil Practice Act of 1911.
Certain procedural provisions appearing in NCL as statute law were, by our action, simply
segregated as rules of court and thus withheld from legislative reenactment as a part of NRS.
Having been withheld from legislative reenactment and since they were procedural statute
law on July 1, 1951 these provisions were then, and are now, and until amendment by our
action shall continue to be, deemed to be rules of court without necessity for formal
promulgation. The mechanical problems involved in the continuing program of separating
that which should be rule from that which should remain statute cannot be permitted to
obscure the obvious fact that the rules here involved have, since 1911, existed side by side
with the sections of Title 6 and that the latter must continue to be read and construed in
context with the former.
Judgment affirmed.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 266, 266 (1957) Atlanta Gold & Uranium Co. v. Atherley
ATLANTA GOLD AND URANIUM CO., a Partnership Composed of C. E. COLLINS and
S. Y. GUTHRIE, Sr., Appellants, v. D. L. ATHERLEY and S. B. ATHERLEY, Respondents.
No. 3972
October 28, 1957 316 P.2d 932
Appeal from the Seventh Judicial District Court, White Pine County; Taylor H. Wines,
Judge presiding.
Action for breach of contract by which plaintiffs were employed to mine ore from the
defendants' properties. From that portion of the judgment in the trial court whereby plaintiffs
were allowed compensation for the mining of ore and waste, the defendants appealed. The
Supreme Court, Eather, J., held that the evidence supported the judgment for plaintiffs.
Affirmed with costs.
Gray & Horton, of Ely, and Eugene A. Mast, of Grand Junction, Colorado, for Appellants.
Jon R. Collins, of Ely, for Respondents.
1. Mines and Minerals.
In action for breach of contract by which plaintiffs were employed to mine ore from defendants'
properties, evidence sustained finding that plaintiffs were to receive their actual costs of mining.
2. Appeal and Error.
Appellants could not complain of the reopening of the case by the trial court where the opening resulted
in reduction of damages which might otherwise have been allowed.
3. Appeal and Error.
In action for damages for breach of contract by which plaintiffs were employed to mine ore from
defendants' properties, an order finding for plaintiffs but providing that defendants were entitled to have
from plaintiffs a pleading of a definition of costs of mining and a full statement thereof by way of an
accounting was not prejudicial to the defendants.
4. Judgment.
In action for breach of contract by which plaintiffs were employed to mine ore from the defendants'
properties, objection to the court's jurisdiction to make a final judgment after reviewing its so-called first
judgment was without merit.
73 Nev. 266, 267 (1957) Atlanta Gold & Uranium Co. v. Atherley
5. Judgment.
In action for breach of contract by which plaintiffs were employed to mine ore from the defendants'
properties, judgment for plaintiffs was not uncertain in that it lacked specification as to the costs of the
mining.
OPINION
By the Court, Eather, J.:
This is an action for damages arising out of contract whereby respondents were employed
to mine ore from appellants' properties in Lincoln County, and deliver the ore so mined to a
smelter located at McGill, Nevada. Judgment was rendered in favor of respondents in the sum
of $13,500.33 and appellants have taken this appeal. The appeal relates only to that portion of
the judgment whereby respondents were allowed compensation for the mining of ore and
waste.
[Headnote 1]
Appellants first contend that the contract between the parties established that respondents
were to receive fifty cents a ton for mining ore and ten cents a ton for mining waste; that the
judgment rendered was not in accordance with such agreement. In the trial below the terms of
the agreement constituted the principal dispute between the parties. Respondents contended
and the trial court found that the agreement was (for the period in question at least) that
respondents were to receive their actual costs of mining, for the reason that the nature of the
ore to be mined was such that the cost of extraction could not be anticipated with accuracy.
There is ample evidence to support this contention, and the finding of the trial court to such
effect. The finding, accordingly, will not be disturbed.
Appellants next contend that the trial court, upon its own motion, improperly reopened the
case after submission by both sides and permitted further evidence of costs of extraction to be
submitted by respondents. Appellants' contention here appears to be that the judgment for
costs in its entirety should therefore be set aside.
73 Nev. 266, 268 (1957) Atlanta Gold & Uranium Co. v. Atherley
aside. In no event could this be done. There was ample proof by respondents prior to this
court order relating to the cost of mining. If under our rules of civil procedure, it was not
available to the trial court upon its own motion to reopen the case for further evidence, we
should simply remand for entry of judgment upon the proof offered prior to submission.
[Headnote 2]
We need not decide upon the propriety of the court's order. From our study of the record
we have concluded that this assignment of error is not available to the appellants for the
reason that they cannot be said to have been aggrieved or prejudiced by this action of the trial
court. The reopening of the case resulted not in establishment of damages in the first instance
but in the reduction of damages which might otherwise have been allowed.
The order of resubmission by the trial court was made in conjunction with its original
findings of fact and conclusions of law in which the court found the contract between the
parties to be in accordance with respondents' contentions. The court stated Although the
court has found for the plaintiffs and accepts their version of the dealings between the
plaintiffs and the defendants, and despite the fact that neither of the plaintiffs was
cross-examined on the issue of costs, after an examination of the plaintiffs' bills and accounts,
the court is not prepared to accept their definition of costs to them.
The court then gave two examples. (1) It questioned the charge of one of the appellants for
wages at the rate of $500 a month. The court referred to the usual scale of wages for mining
and then stated it may be that he acted in a miner's supervisory capacity, but that is a matter
to which further consideration should be given. (2) The court questioned the charge by
appellants of the return haul of certain equipment as a proper item of costs of operation.
The conclusions of law stated by the court included one to the effect that the plaintiffs
should recover the costs of their mining operations and stated further "That the
defendants are entitled to have from these plaintiffs the pleading of a definition of costs,
and a full statement thereof by way of an accounting of all sums expended by them
during the foregoing period in mining the aforesaid ores.
73 Nev. 266, 269 (1957) Atlanta Gold & Uranium Co. v. Atherley
costs of their mining operations and stated further That the defendants are entitled to have
from these plaintiffs the pleading of a definition of costs, and a full statement thereof by way
of an accounting of all sums expended by them during the foregoing period in mining the
aforesaid ores. * * *
[Headnotes 3, 4]
It appears clear from the record that the trial court felt, notwithstanding a failure on the
part of appellants to bring out certain irregularities by cross examination or testimony of their
own, that irregularities did exist and that it would only be fair to permit the appellants to
reexamine the matter. It characterizes its order finding for the plaintiffs as being
interlocutory pending such accounting. This, as noted, was in no way prejudicial to
defendants. Nor is there merit to the appellants' attack on the court's jurisdiction to make the
final judgment after reviewing its so-called first judgment. Nevada First National Bank of
Tonopah v. Lamb, 51 Nev. 162, 271 P. 691.
Appellants next complain of the findings of costs of mining made by the trial court
following resubmission of the matter. The court's decision states: It is the decision of this
Court that the plaintiffs should have judgment against the defendants on their first cause of
action for the sum of $12,925.64. The sum is made up as follows: Wages, $6,745.63;
supplies, $3,351.49; charge for equipment rental, compressor, $1,350; shovel, $1,000.00;
wagon drill, $400.00; D-8 cat and dozer, $1,250; hauling compressor, $187.50; shovel,
$187.50; D-8 cat with dozer, $187.50; ripper, $50.00. Total $14,709.62. Paid on account,
$1,783.98. Balance $12,925.64. The final judgment added $574.69, a sum due on another
phase of the contract, over which there was no dispute. In this there was no error.
[Headnote 5]
It is complained that this is uncertain in that it lacks specification. We do not regard it as
uncertain. No effort appears to have been made by the appellants to secure clarification by
the trial court.
73 Nev. 266, 270 (1957) Atlanta Gold & Uranium Co. v. Atherley
secure clarification by the trial court. Appellants have failed to show that the amounts
allowed are unsupported by the evidence.
Affirmed with costs.
Badt, C. J., and Merrill, J., concur.
____________
73 Nev. 270, 270 (1957) True v. Bosch
ALMA FROBENIUS TRUE, Appellant, v. EDWARD M. BOSCH and CECIL G. BOSCH,
His Wife, and HERBERT BOSCH and ROMA BOSCH, His Wife, Respondents.
No. 3996
November 6, 1957 317 P.2d 1089
Appeal from the Sixth Judicial District Court, Humboldt County; Taylor H. Wines,
Presiding Judge.
Action against house owner by neighbor for trespass and to quiet title to area in which
trespass occurred. The trial court rendered judgment for neighbor and owner appealed. The
Supreme Court, Eather, J., held that where house had been constructed so as to encroach on
neighbor's land and neighbor gave owner's predecessor deed which covered only area of
encroachment and stated that it was intended to convey only so much of lot as actually was
occupied by house, land beneath eaves of house was not conveyed.
Affirmed with costs.
Richard G. Campbell, of Winnemucca, and Wm. J. Crowell, of Carson City, for Appellant.
James A. Callahan, of Winnemucca, for Respondents.
1. Deeds.
Where house was constructed so as to encroach on neighbor's land and neighbor gave house owner deed,
which covered area of encroachment and stated that it was intended to convey only so
much of lot as was actually occupied by house, land beneath eaves of house was not
conveyed.
73 Nev. 270, 271 (1957) True v. Bosch
area of encroachment and stated that it was intended to convey only so much of lot as was actually
occupied by house, land beneath eaves of house was not conveyed.
2. Easements.
Where house was constructed so as to encroach on neighbor's land and neighbor gave house owner deed
covering area of encroachment, and constructed fences limiting access to area adjacent to house, and fences
had been maintained for many years, no right of way to land adjacent to house was created and right of
house owner's successor was limited to use of area for purposes of maintaining wall of house.
3. Trespass.
In action against house owner who forcibly entered upon neighbor's property by tearing down fence and
who allegedly damaged shrubbery, evidence sustained award for injuries to fence and shrubbery.
4. Trespass.
Where right of house owner whose land did not extend beyond south wall of house was limited to use of
neighbor's lot on south for purposes of maintaining wall of house, and house owner forcibly entered
neighbor's lot by forcibly removing fence put up by neighbor years before, and damaged neighbor's shrubs
and plants, neighbor was entitled to punitive damages.
OPINION
By the Court, Eather, J.:
This is an appeal taken by the defendant below from judgment of the trial court granting
damages for trespass upon real property and quieting title to the area in which the trespass
occurred.
The parties are owners of adjoining residences in Winnemucca. Defendant's predecessor in
constructing his dwelling house had encroached upon the property of plaintiffs' predecessor.
A deed covering the area of encroachment was given. It specified in part: It being
understood that this instrument is intended to convey to the said party of the second part so
much only of said Lot Five as is now actually occupied by the residence or dwelling house
aforesaid, and not more. The said parties of the first part hereby reserving unto themselves,
their heirs and assigns, all that said portion of said Lot Five not actually occupied by said
residence and dwelling house.
73 Nev. 270, 272 (1957) True v. Bosch
Between the dwellings of the parties is a strip of land from ten to fifteen feet in width.
Two fences are maintained by the plaintiffs which limit access to this area. One fence runs
from house to house across the front of the strip preventing access from the front. A second
fence runs from the rear of the defendant's house along the property line to the rear of the lots,
which fence prevents access to the strip from the rear of defendant's property. Thus access to
the area can only be had from the rear of the plaintiffs' property. Defendant has been
permitted by the plaintiffs from time to time to enter this enclosed area through the plaintiffs'
property for the purpose of washing windows and maintaining the wall of her dwelling. The
trespass here occurred when the defendant forcibly entered the enclosed area by removing the
fence across the front of the strip, in the course of which certain shrubs and plants in the area
were damaged. The trial court assessed compensatory damages in the sum of $60 and
punitive damages in the sum of $250. It also decreed that title to the area was in the plaintiffs
subject only to a limited easement in the defendant to make use of the area for the purpose of
maintaining the south wall of defendant's residence and for that purpose only. With
reference to this easement the court specified that the defendant's right to entry was by such
reasonable route as might be designated by the plaintiffs and does not involve the
destruction or removal of property owned by plaintiffs.
[Headnote 1]
On this appeal defendant assigns as error failure of the trial court to recognize title in the
defendant to so much of the disputed area as lies beneath the eaves of her house. We feel that
since the deed in question originally was to an area of encroachment the language used in that
deed including reiteration of the phrase actually occupied supports the trial court's
construction of the deed as not including the land beneath the eaves. A strict limitation was
quite apparently intended by the grantor. Accordingly we find no error here.
73 Nev. 270, 273 (1957) True v. Bosch
[Headnote 2]
In the alternative defendant asserts as error failure of the trial court to recognize a more
extensive easement to the area in question. She claims a right-of-way existed in her with
which plaintiffs' fence interfered, constituting a private nuisance. The facts do not support the
existence of such a right. The fences had been maintained by the plaintiffs for many years and
had effectively precluded any right-of-way from being created or enjoyed. No greater right in
the defendant to the use of the property adjoining her wall can be found by implication than
that decreed by the trial court.
[Headnotes 3, 4]
Defendant contends that the damages awarded are not supported by the evidence. There is
ample support for the award of $60 compensatory damages for injury to the fence and
shrubbery. The court found that the destruction was wholly unnecessary and in reckless
disregard of plaintiffs' rights. It properly distinguished between the assertion of a right in a
peaceful and orderly manner and a resort to destructive force. The allowance of punitive
damages under the circumstances was not error.
Affirmed with costs.
Badt, C. J., and Merrill, J., concur.
____________
73 Nev. 274, 274 (1957) Kassabian v. Jones
LEVON G. KASSABIAN, Appellant, v. GLEN JONES and BUR-WY, Inc.,
a Corporation, Respondents.
No. 3982
November 7, 1957 317 P.2d 572
Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
Department No. 2.
Action for reformation of lease to include a covenant against assignment and for breach of
contract as thus reformed. From judgment of dismissal entered by the trial court the defendant
appealed. The Supreme Court, Badt, C. J., held that dismissal of suit for termination of lease
and option, on ground that lessee had assigned lease contrary to provisions of lease, was not a
bar to action based on fraud and mutual mistake, for reformation of lease to include a
covenant against assignment, and for relief for breach of contract as thus reformed.
Reversed.
George Rudiak and Betty Aronow, of Las Vegas, for Appellant.
George E. Marshall, for Respondent Glen Jones; Hawkins & Cannon, for Respondent
Bur-Wy, Inc., all of Las Vegas.
1. Judgment.
Dismissal of suit for termination of lease and option, on ground that lessee had assigned lease contrary to
provisions of lease, was not bar to action, based on fraud and mutual mistake, for reformation of lease to
include covenant against assignment, and for relief for breach of contract as thus reformed.
2. Appeal and Error.
Where trial court dismissed the action and denied plaintiff's motion for leave to amend his complaint and
motion to compel adverse party to answer certain questions without giving them any consideration,
Supreme Court would not pass on such motions.
73 Nev. 274, 275 (1957) Kassabian v. Jones
OPINION
By the Court, Badt, C. J.:
[Headnote 1]
In an earlier suit Kassabian's predecessor sought termination of a lease and option to Jones
on the ground that the latter had assigned the same to Bur-Wy, contrary to the provisions of
the lease. Those provisions had granted to Jones, as lessee, the exclusive right, privilege and
option etc. which plaintiff construed to mean that the lease and option were personal to
Jones and equivalent to a covenant against assignment. A motion to dismiss was granted.
Thereafter Kassabian filed the present action in which he sought reformation of the
instrument to include a covenant against assignment, and relief for breach of the contract as
thus reformed. This was based first, on fraud and, in a separate cause of action, on mutual
mistake. A plea of res judicata was sustained, the second action dismissed, and this appeal
followed. We have concluded that the dismissal of the first action was not a bar to the present
one and that a reversal is required. In Reno Club v. Harrah, 70 Nev. 125, 260 P.2d 304, 306,
we discussed the two types of cases in which the bar of an earlier adjudication was asserted.
In that type of case in which the earlier judgment is offered as a bar to the entire action upon
the ground that a determination of the identical controversy previously had been had between
the parties, as is the case here, we noted that it is essential that the causes of action be
identical. We there cited Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed 195, which see
for a fuller exposition of the rule. To like effect are Gould v. Evansville and C. R. R. Co., 91
U.S. 526, 23 L.Ed. 416; Wiggins Ferry Co. v. Ohio & Mississippi R. Co., 142 U.S. 396, 12
S.Ct. 188, 35 L.Ed. 1055; Miller v. Margerie (C.C.A. 9th), 170 F. 710; Gilmer v. Morris,
C.C., 46 F. 333; Keidatz v. Albany, 39 Cal.2d 826, 249 P.2d 264.
That the present action for reformation of the contract on the grounds of fraud and mutual
mistake and for the enforcement of the contract as reformed is based upon a different claim
than the first action is clear by reason of the holding in Reno Club v. Harrah, supra [70
Nev. 125
73 Nev. 274, 276 (1957) Kassabian v. Jones
upon a different claim than the first action is clear by reason of the holding in Reno Club v.
Harrah, supra [70 Nev. 125, 260 P.2d 306]. We there said: In Silverman v. Silverman, 52
Nev. 152, 169, 283 P. 593, 598, this court stated, The true test of the identity of causes of
action, as that term is used in connection with the plea of former adjudication, is the identity
of the facts essential to their maintenance. The identity of the causes of action may appear
from evidence in the two cases as well as from the pleadings. The authorities agree that when
the same evidence supports both the present and the former cause of action, the two causes of
action are identical.' Followed in Miller v. Miller, 54 Nev. 44, 52, 3 P.2d 1069, 6 P.2d 1117,
11 P.2d 1088 * * *. Applying this test, the essential facts in the prior action were the proof
of the lease with its so-called covenant against assignment and the conduct of the lessee
alleged to constitute a breach thereof. The essential facts in the present action included, in
addition to those elements, the proof of the true agreement between the parties which added
to the written agreement the covenant which is the essence of the present suit and the facts of
the fraud or mutual mistake in the execution of the written lease. The matter actually litigated
and determined by the dismissal of the first action was simply the determination that the
clause in question did not have the legal effect of prohibiting the assignment of the lease and
option. The right to reformation on the ground of fraud or mutual mistake was clearly not
litigated.
Respondents rely on Northern Pacific Railway Co. v. Slaght, 205 U.S. 122, 27 S.Ct. 442,
446, 51 L.Ed. 738, which, they contend, is determinative of all of the issues of the present
appeal. The court there concluded that since in the second action the plaintiff in error was
asserting title to the same property involved in the first suit, the source of title, only, being
different, it could not escape the defense of the bar. To the extent that this case stands for the
proposition that where a judgment is entered upon a motion to dismiss it is res judicata as to a
subsequent action between the same parties for the same cause, we are in agreement with
respondents.
73 Nev. 274, 277 (1957) Kassabian v. Jones
between the same parties for the same cause, we are in agreement with respondents. So here,
the judgment of dismissal in the first action was res judicata as to the proposition of law that
the complaint in that case, based on the contract as written, did not state a claim upon which
relief could be granted. This indeed is the holding in Keidatz v. Albany, supra. The court in
the Northern Pacific Railway case noted, however, that the question as to the first judgment
pleaded in bar will be necessarily its legal identity with [the second] action. Citing many
authorities, the court used the identical language employed by Mr. Justice Field in the
Cromwell case differentiating the effect of a judgment as a bar against the prosecution of a
second action for the same claim or demand, from its effect as an estoppel in another action
between the same parties upon another claim or demand. The latter situation is the case here.
[Headnote 2]
Appellant assigns error in two other respects, namely, in the court's denial of plaintiff's
motion for leave to amend his complaint and in denying his motion to compel the adverse
party to answer sundry questions propounded during the taking of his deposition. It is
apparent from the record, however, that these orders were made after the granting of the
motion to dismiss. In granting that motion the court observed that it determined all issues in
the case and, accordingly, ordered that all other motions be denied. It is, therefore, apparent
that the court, under the circumstances, gave no consideration to either motion. It is not the
function of this court to pass on such motions in the first instance.
Other authorities cited by respondents and additional arguments in support of the judgment
have received the consideration of the court, but do not require further discussion.
Reversed with costs and remanded for further proceedings.
Eather and Merrill, JJ., concur.
____________
73 Nev. 278, 278 (1957) Opaco Lumber & Realty Co. v. District Court
OPACO LUMBER & REALTY CO., a Nevada Corporation, Petitioner, v. EIGHTH
JUDICIAL DISTRICT COURT of the State of Nevada, in and for the County of Clark,
Department No. 3, Respondent.
No. 4038
November 12, 1957 317 P.2d 957
Original petition for writ of certiorari to review order of district court denying petitioner's
motion to strike answers filed after default had been taken against answering defendants. The
Supreme Court held that any error or abuse of discretion in determining sufficiency of cause
shown for setting aside default did not affect jurisdiction of district court to make such
determination and hence was not reviewable on certiorari.
Writ denied.
Robert Callister, of Las Vegas, for Petitioner.
Harvey Dickerson, Attorney General, of Carson City, and George M. Dickerson, District
Attorney, of Clark County, for Respondent.
Certiorari.
Trial court had jurisdiction to determine sufficiency of cause shown for setting aside a default, and any
error or abuse of discretion in making such determination did not affect such jurisdiction, and hence was
not reviewable on certiorari. Rules of Civil Procedure, Rule 55(c).
OPINION
Per Curiam:
This is before us on petition for writ of certiorari. The action of respondent court sought to
be reviewed is its order denying petitioner's motion to strike the answers of certain defendants
in an action brought by petitioner and pending before respondent court. The motion to strike
was based upon petitioner's contention that defendants were not entitled to answer since a
default had been taken against them. It is conceded that respondent's action in denying the
motion to strike was based upon its determination that, under the circumstances, the
default could not be permitted to stand and that its action was tantamount to a setting
aside of the default.
73 Nev. 278, 279 (1957) Opaco Lumber & Realty Co. v. District Court
respondent's action in denying the motion to strike was based upon its determination that,
under the circumstances, the default could not be permitted to stand and that its action was
tantamount to a setting aside of the default.
Rule 55(c) NRCP provides For good cause shown the court may set aside an entry of
default * * *. Petitioner contends that in this case there was a lack not only of good cause but
of any cause at all; that respondent court, accordingly, was without jurisdiction to set aside
the default. Clearly, however, the court had jurisdiction to determine the sufficiency of the
cause shown. If, in its determination, the court committed error or abuse of discretion this
cannot be said to affect its jurisdiction and the question cannot be considered upon certiorari.
Iveson v. District Court, 66 Nev. 145, 206 P.2d 755.
Writ denied.
____________
73 Nev. 279, 279 (1957) McCleary Cattle Co. v. Sewell
FRANK McCLEARY CATTLE COMPANY, a Corporation, Appellant, v.
C. A. SEWELL and ORENE H. SEWELL, His Wife, Respondents.
No. 3995
November 12, 1957 317 P.2d 957
Appeal from special order of the Sixth Judicial District Court, Humboldt County; Frank B.
Gregory, Presiding Judge.
Proceedings supplemental to execution. From an order of the lower court making assets of
another corporation available to execution upon the judgment, that corporation appealed. The
Supreme Court, Merrill, J., held that appellant corporation, which was owned by sole owners
of judgment debtor corporation and to which all assets of judgment debtor corporation had
been transferred, was properly treated as alter ego of judgment debtor corporation and that
its assets were properly made available to execution upon the judgment without an
independent action against transferee corporation, but that judgment should be corrected
to run against transferee corporation.
73 Nev. 279, 280 (1957) McCleary Cattle Co. v. Sewell
debtor corporation and that its assets were properly made available to execution upon the
judgment without an independent action against transferee corporation, but that judgment
should be corrected to run against transferee corporation.
Affirmed.
James A. Callahan, of Winnemucca, and Eugene H. Anderson, of Boise, Idaho, for
Appellant.
Orville R. Wilson, of Elko, for Respondents.
1. Corporations.
Where all assets of judgment debtor corporation had been transferred to another corporation, which bore
costs of litigation against judgment debtor corporation, had the same president and was owned by sole
owners of judgment debtor corporation, and charter of judgment debtor corporation had been revoked,
corporate fiction was properly disregarded and transferee corporation was properly treated as alter ego of
judgment debtor corporation.
2. Corporations.
In order to invoke alter ego doctrine, corporation must be influenced and governed by person asserted
to be its alter ego, there must be such unity of interest and ownership that one is inseparable from the other,
and facts must be such that adherence to fiction of separate entity would, under the circumstances, sanction
a fraud or promote injustice, though actual fraud need not be shown.
3. Corporations.
Assets of corporation to which assets of judgment debtor corporation had been transferred and which was
alter ego of judgment debtor corporation were properly made available to execution upon judgment by
special order entered in proceedings supplemental to execution without independent action and judgment
against transferee corporation, but judgment should be corrected to run against transferee corporation.
4. Corporations.
Judgment debtor corporation and corporation which was its alter ego should be regarded as identical for
purposes of execution issued upon the judgment.
OPINION
By the Court, Merrill, J.:
This action was brought by respondents against Henry McCleary Timber Company, a
Washington corporation.
73 Nev. 279, 281 (1957) McCleary Cattle Co. v. Sewell
Judgment in favor of respondents was affirmed upon appeal to this court. McCleary Timber
Company v. Sewell, 72 Nev. 231, 301 P.2d 1047. The present appeal is taken by Frank
McCleary Cattle Company, a Nevada corporation, from a special order after judgment, by
which order the assets of appellant were made available to execution upon the judgment
against the timber company. The order followed hearing in proceedings supplemental to
execution. Appellant contends that the only method by which its assets can be subjected to
judgment against the timber company is through an independent action brought against
appellant.
It may be conceded that appellant's contentions would have merit in the ordinary case
where property in the hands of a third party is sought to be subjected to a judgment debt. The
court below, disregarding corporate entities, held that the cattle company was the alter ego of
the timber company. The questions before us on this appeal are whether this ruling was
justified by the evidence and, if so, whether the necessity for an independent action and
judgment against the cattle company was thereby eliminated.
The evidence establishes the following facts: The action below was based upon an
agreement entered into between respondents and the timber company on February 14, 1951.
The cattle company was incorporated February 9, 1952. In December 1952 an obligation of
the timber company under its agreement with respondents in the sum of approximately
$25,000 was paid by the cattle company. In March 1956 the charter of the timber company,
both in Washington, the state of its domicile, and in Nevada, was revoked by official state
action. Prior to that date all the assets of the timber company had been transferred to the cattle
company. The value of the assets so transferred amounted to several million dollars, and the
transfer was for tax reasons. All stock in each corporation was owned by Frank McCleary and
Catherine McCleary. As to each stockholder the number of shares held in the cattle company
was the same as the number held in the timber company. Frank McCleary was president of
both corporations.
73 Nev. 279, 282 (1957) McCleary Cattle Co. v. Sewell
was president of both corporations. Costs of the litigation with the timber company were
borne by the cattle company.
[Headnotes 1, 2]
There can be no question but that, under these circumstances, the trial court was justified
in disregarding the corporate fiction and in holding the cattle company to be the alter ego of
the timber company. Minifie v. Rowley, 187 Cal. 481, 202 P. 673, sets forth the requirements
for application of the alter ego doctrine. (1) The corporation must be influenced and governed
by the person asserted to be its alter ego. (2) There must be such unity of interest and
ownership that one is inseparable from the other; and (3) The facts must be such that
adherence to the fiction of separate entity would, under the circumstances, sanction a fraud or
promote injustice. It is not necessary that the plaintiff prove actual fraud. It is enough if the
recognition of the two entities as separate would result in an injustice. Gordon v. Aztec
Brewing Company, 33 Cal.2d 514, 522; 203 P.2d 522, 527. To the same effect are Wilson v.
Stearns, 123 Cal. App.2d 472, 267 P.2d 59; Taylor v. Newton, 117 Cal. App.2d 752, 257
P.2d 68; Grant v. U. S. Electronics Corp., 125 Cal.App.2d 193, 270 P.2d 64.
[Headnotes 3, 4]
Under these circumstances it is not necessary that a separate action be brought against the
cattle company. Respondents are not seeking to reach assets in the hands of a third party.
Respondents are not seeking to substitute or add a new party to the old action. For the
purposes of execution the timber company and the cattle company are to be regarded as
identical. Mirabito v. San Francisco Dairy Co., 8 Cal.App.2d 54, 47 P.2d 530, is squarely in
point upon this proposition. This was an action brought against the San Francisco Dairy
Company. The corporation was then in existence but was nonoperative, having transferred
substantially all of its assets to the Dairy Dale Company. The latter transferred the assets to
the Dairy Delivery Company for consideration. It was held that the San Francisco Dairy
Company was the alter ego of the Dairy Delivery Company.
73 Nev. 279, 283 (1957) McCleary Cattle Co. v. Sewell
Company was the alter ego of the Dairy Delivery Company. The court stated, p. 532, The
basis of the rule is, of course, that the court having acquired jurisdiction of the person of the
defendant and of the subject of the action, it necessarily possessed the power to correct a
misnomer.* * * Where * * *, as here, * * * the evidence is sufficient to warrant the
conclusion that in effect the two corporations are identical; where, as here, the action was
fully and fairly tried with at least the direct financial assistance of appellant; and where, as
here, nothing appears in the record to show that Dairy Delivery Company could have
produced a scintilla of evidence that would have, in any way, affected the results of the trial,
there is no basis for a different rule. The trial court having acquired jurisdiction of the San
Francisco Dairy Company must, likewise, be held to have acquired jurisdiction of its alter
ego, the appellant herein. To the same effect: Leviston v. Swan, 33 Cal. 480.
In the case before us the court below did not direct that the judgment in favor of
respondents be corrected to run against the cattle company. This, we feel, should be done if
the judgment is properly to support the execution.
The trial court is affirmed. This matter is remanded with instructions that an order be
entered by the court below correcting the written judgment in action number 5003 in the
Sixth Judicial District Court of the State of Nevada in and for the county of Humboldt, to
show that judgment is rendered against the Frank McCleary Cattle Company, a Nevada
corporation. Costs to respondents.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 284, 284 (1957) Nollner v. Hines
E. T. NOLLNER, Appellant, v. MARGO M. GOUMOND HINES and MARGUERITE
GOUMOND DeVANEY, As Coexecutrices of the Estate of Prosper J. Goumond, Deceased,
Respondents.
No. 4012
November 21, 1957 318 P.2d 317
Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
Department No. 2.
Action to determine the value of decedent's interest in a partnership. Judgment for plaintiff
in the lower court and the defendant appealed. The Supreme Court, Merrill, J., held that a
partnership agreement for operation of a motel fixed the value of the deceased partner's
interest at cost of assets less depreciation precluding any revaluation of the partnership assets
in order that unrealized appreciation might be considered in determining net worth, and that
in view of tender by the defendant, he was entitled to costs.
Reversed and remanded.
Cleve Schultz, of Las Vegas, for Appellant.
Michael L. Hines and Herman M. Adams, of Las Vegas, for Respondents.
1. Partnership.
Under terms of a partnership agreement for operation of a motel fixing the manner in which a deceased
partner's interest was to be computed and paid for by the survivor, provisions of the agreement precluded
any revaluation of the partnership assets in order that unrealized appreciation might be considered in
determining net worth.
2. Partnership.
In the absence of agreement to the contrary, the implied basis for a valuation of partnership assets on
termination by death of a partner is the fair market value.
3. Partnership.
In determining whether partnership agreement as construed by the partners fixed the value of a deceased
partner's interest at cost of assets less depreciation thereby precluding the establishing of value of that
interest by an independent appraisal, fact that quarterly statements failed to use the words net worth was
immaterial where each statement was prepared pursuant to paragraph of the agreement contemplating that
such statement would be the statement of the net worth of the partnership.
73 Nev. 284, 285 (1957) Nollner v. Hines
4. Partnership.
Fact that real estate values had risen generally in the past ten years did not establish that partnership
agreement fixing value of a deceased partner's interest in a hotel at cost of assets less depreciation thereby
precluding the establishing of the value of that interest by an independent appraisal was unfair, where each
stood in the position of being able to realize the full extent of appreciated value should he survive the other.
5. Costs.
Where respondents were entitled to judgment in the sum tendered by the appellant, his tender renewed in
the proceedings below entitled him to costs in the action below. NRS 18.080.
OPINION
By the Court, Merrill, J.:
This is an appeal taken by the defendant below from judgment in favor of respondents as
coexecutrices of the last will of Prosper Jacob Goumond. The judgment was for the value of
decedent's interest in a partnership, terminated by his death, which owned and operated the
Hitchin' Post Motel in Clark County, Nevada. Appellant is the surviving partner. Judgment
below fixed the value of partnership assets upon the basis of the testimony of witnesses who
had appraised the property. Appellant contends that the judgment rendered was contrary to
the terms of the partnership agreement which fixed the manner in which a deceased partner's
interest was to be computed and paid by the survivor. The sole question upon this appeal is
whether the partnership agreement, as construed by the partners themselves, fixed the value
of the deceased partner's interest at cost of assets less depreciation, and thus precluded the
establishing of the value of that interest by an independent appraisal. We have concluded that
value was fixed by the agreement and that reversal is required.
The agreement was dated August 10, 1948. It was prepared by Goumond. The provisions
of three paragraphs are material to our consideration. In the quotations which follow, all
emphasis has been supplied.
Paragraph 6 provided for regular quarterly accountings. It states, A full and complete
inventory shall be taken, and a complete statement of the assets and liabilities and the
condition of the partnership shall be determined and stated and an accounting between
the partners shall be had, and the profits or losses of the then quarter year shall be
divided and paid or contributed.
73 Nev. 284, 286 (1957) Nollner v. Hines
taken, and a complete statement of the assets and liabilities and the condition of the
partnership shall be determined and stated and an accounting between the partners shall be
had, and the profits or losses of the then quarter year shall be divided and paid or contributed.
Such statement shall show all sums which may then be owing from the partnership to either
of the parties hereto and such sums shall be considered as a debt of the partnership and shall
be reflected in the statement of the net worth of the partnership. As between the parties hereto
the value of the good will of business, shall be taken at $1.00, unless a higher value shall
hereafter in writing be stated and mutually agreed upon.
Pursuant to these provisions, over a period of more than six years, on 25 separate
occasions accountings were prepared. In each instance an inventory of the assets and
liabilities was set forth. The last three statements, those of March 31, 1954, June 30, 1954 and
September 30, 1954, are in the record before us. In each instance the supplies, equipment,
furniture and fixtures, buildings and land are given a specified value and the capital interest of
each of the partners is set at $20,366.63. It appears that the property valuation was fixed at
cost of the real estate, and cost less depreciation of other assets. Unrealized appreciation of
assets was never taken into consideration and no revaluation of assets was ever made.
This form of statement, it would necessarily appear, had been mutually regarded by the
partners as a discharge of their obligations to each other under the provisions of paragraph 6.
Thus was demonstrated their conception of the complete statement of the assets and
liabilities and the statement of the net worth of the partnership to which this paragraph of
the agreement referred.
Paragraph 7 of the agreement provides That each party shall sign duplicate copies of each
of such statements of affairs, and each shall retain one of them for his own use; such accounts
shall not again be opened, unless some manifest error shall be discovered in either of
them, within three months thereafter, and then so far only as respects the correcting of
such error; and every such statement of affairs shall, in all other respects, be conclusive
evidence between and binding on said parties."
73 Nev. 284, 287 (1957) Nollner v. Hines
unless some manifest error shall be discovered in either of them, within three months
thereafter, and then so far only as respects the correcting of such error; and every such
statement of affairs shall, in all other respects, be conclusive evidence between and binding
on said parties.
In each instance the statement as prepared was signed by the partners. Pursuant to its terms
it then became binding upon them. The agreement also expressly provides that it shall inure
to the benefit of and bind the heirs, executors and administrators of the respective parties
hereto. The statement of assets as of September 30, 1954, signed by Goumond, thus became
binding upon the respondents.
Paragraph 10 provides that the partnership shall be dissolved by the death of either party. It
then states Upon the death of either party hereto, all of the partnership property and the
business and good will of said partnership shall immediately vest in the survivor. The
survivor, however, shall immediately proceed to take inventory of all of the assets and
liabilities of the partnership, and shall prepare a detailed and true statement of account and
affairs of said partnership from the date of the last quarter year for which the statement
provided for in paragraph 6 hereof has been prepared and signed as provided in paragraph
7 hereof, or the date of the latest of such statements so made and signed as aforesaid, and a
copy of such statement shall be furnished and delivered to the legal representative of the
deceased partner, and the survivor shall pay to said legal representative one-half of the net
worth of said partnership, plus all sums owing from the partnership to such deceased partner
as shown by such last mentioned statement.
The accounting requirement as quoted would seem to be subject to but one construction:
That the survivor in his accounting to the legal representative of the deceased partner should
simply take up where the partners themselves had left off.
Goumond died November 24, 1954. Upon his death, pursuant to the provisions of
paragraph 10, Nollner prepared a statement of account and affairs of the partnership
from September 30, 1954 to November 24, 1954.
73 Nev. 284, 288 (1957) Nollner v. Hines
pursuant to the provisions of paragraph 10, Nollner prepared a statement of account and
affairs of the partnership from September 30, 1954 to November 24, 1954. In all respects this
statement followed the practice adopted by the partners themselves over the period of the
preceding six years. The statement, based upon the depreciated value of the partnership
assets, showed the capital interest of each of the partners at the date of Goumond's death to be
$19,375.45. This sum, by cash and promissory note, (pursuant to further provisions of the
agreement), was tendered by Nollner to respondents. The tender was rejected, respondents
contending that the statement did not show the true net worth of the partnership assets and
that a revaluation should be had. This view was adopted by the trial court. Proof of value was
received, upon the basis of which the court found the decedent's interest to be $31,750.
Judgment in favor of respondents was rendered in this amount. In several respects appellant
attacks the proof of value upon which the court relied. We need not consider these matters.
[Headnote 1]
Respondents' position is untenable in several respects. To adopt their construction of the
agreement we must (1) isolate from the rest of the agreement a portion of a sentence of
paragraph ten (the portion last emphasized in our quotation) and construe it without regard to
the rest of the agreement; (2) disregard the actions of the partners binding upon themselves
and their heirs and construe net worth in a manner which the partners themselves had
rejected on 25 occasions; (3) disregard the fact that the agreement was prepared by Goumond
and construe it in his favor. These matters we cannot disregard. When they are taken into
consideration, it is clear that the provisions of the agreement must be held to preclude any
revaluation of the partnership assets in order that unrealized appreciation might be considered
in determining net worth.
[Headnote 2]
Respondent contend that as a matter of law net worth" implies valuation on the basis of
"fair market value."
73 Nev. 284, 289 (1957) Nollner v. Hines
worth implies valuation on the basis of fair market value. The authorities they have cited
are distinguishable. In no one of them was the term defined by agreement or practice in a
manner expressly declared to be binding and conclusive. The cases simply state the general
rule that, in the absence of agreement to the contrary, the implied basis for evaluation of
partnership assets is the fair market value. On the other hand it must be recognized that in
business practice generally the cost method is not only the most common method of
accounting, but, in many cases, is the only approved method. In Hill's Law of Accounting,
54 Col. L. Rev. 1, 16, it is stated It is a basic assumption of both accountants and the courts
that fixed assets must be presented in terms of cost as measured by some acceptable
standard.
Respondents contend that the quarterly statements as signed did not bind their testator to
any construction of net worth for the reason that those words do not appear on any of the
statements; that appellant's construction of the term is not appropriate to the circumstances of
this case or to this particular agreement and would work hardship and unfairness.
[Headnote 3]
We do not feel that the failure of the quarterly statements to use the words net worth is
of any significance. Each such statement was prepared pursuant to the provisions of
paragraph 6 which, by its very language, contemplated that such statement would be the
statement of the net worth of the partnership.
[Headnote 4]
Upon their contention of unfairness respondents assert as common knowledge the fact that
real estate values have risen generally in the Las Vegas area in the past 10 years. This does
not render appellant's construction of the agreement unfair to the partners during their
lifetime. Each stood in the position of being able to realize the full extent of appreciated value
should he survive the other. Such a provision may not appear to be the most conservative
method of providing for one's heirs but it cannot be said to be unfair as between the
partners themselves.
73 Nev. 284, 290 (1957) Nollner v. Hines
be the most conservative method of providing for one's heirs but it cannot be said to be unfair
as between the partners themselves. If they chose to take the risk of survival their heirs are
bound by their choice.
[Headnote 5]
We conclude that judgment must be based upon an accounting pursuant to the provisions
of the partnership agreement (paragraph 6 as incorporated by reference into paragraph 10) and
not upon a revaluation of assets. Save for the method of determining net worth, the
accounting provided by the appellant has not been challenged. Respondents are, then, entitled
to judgment in the sum tendered by appellant. His tender, renewed in the proceedings below,
has entitled him to costs in the action below. NRS 18.080. Herring-Hall-Marvin Safe Co. v.
Balliet, 44 Nev. 94, 190 P. 76. That tender was pursuant to the provisions of paragraph 10 of
the partnership agreement as follows: * * * said survivor shall pay to such legal
representative at least one-fifth of the amount so to be paid as aforesaid, and shall at the same
time deliver to such legal representative the promissory note of said survivor for the payment
of the balance of said sum in five equal annual installments, thereafter, with interest on
deferred payments at the rate of five (5%) percent per annum, reserving the right to pay the
whole of said balance at any time before the due date thereof, which note shall be secured by
a Deed of Trust covering on the real property of said partnership.
Reversed and remanded with instructions that judgment be entered for plaintiffs below in
accordance with the tender of the defendant, with costs to the defendant. Appellant shall have
his costs on this appeal.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 291, 291 (1957) Berrum v. Powalisz
LEWIS W. BERRUM and DOROTHY L. BERRUM, His Wife, Appellants, v.
ROSE POWALISZ, Respondent.
No. 3998
November 25, 1957 317 P.2d 1090
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge,
Department No. 1.
Spectator brought action against owners of softball park for injuries sustained when piece
of bat flew through hole in wire screen protecting grandstand from playing area. The trial
court entered judgment for the spectator, and the owners appealed. The Supreme Court,
Eather, J., held that where there was a hole in wire screen protecting grandstand from playing
area of softball field, and after completion of preliminary Little League game, two of the
young players, who remained on the field, found a broken bat, fitted it together, and were
swinging the bat, and end of bat came loose, flew through hole in screen, and struck spectator
in grandstand and injured her, owners of field were liable for spectator's injuries, on ground
that skylarking of the young players was reasonably to be anticipated as a hazard related to
use to which field was being put.
Affirmed.
Goldwater, Taber and Hill, and Springmeyer and Thompson, of Reno, for Appellants.
Clel Georgetta and Edwin C. Mulcahy, of Reno, for Respondent.
1. Theaters and Shows.
Owners of softball field could not confine their responsibility to spectators as a matter of law, to acts of
the players themselves, and hazards, against which owners owed protection, were those reasonably to be
expected in light of use to which field was being put.
2. Theaters and Shows.
Where there was a hole in wire screen protecting grandstand from playing area of softball field, and, after
completion of preliminary Little League game, two of the young players, who remained on the field, found
a broken bat, fitted it together, and were swinging the bat, and end of bat came loose,
flew through hole in screen, and struck spectator in grandstand and injured her,
owners of field were liable for spectator's injuries, on ground that skylarking of the
young players was reasonably to be anticipated as a hazard related to use to which
field was being put.
73 Nev. 291, 292 (1957) Berrum v. Powalisz
it together, and were swinging the bat, and end of bat came loose, flew through hole in screen, and struck
spectator in grandstand and injured her, owners of field were liable for spectator's injuries, on ground that
skylarking of the young players was reasonably to be anticipated as a hazard related to use to which field
was being put.
3. Negligence.
Assumption of risk requires actual knowledge or it cannot be said that risk has been assumed.
4. Theaters and Shows.
Spectator, who paid for privilege of attending softball game and using grandstand facilities of owner of
softball field, was not required to examine into the safety of such facilities, and was entitled to rely on fact
that they were provided for her safety, and, in action for injuries sustained when piece of bat flew through
hole in screen could not be held to have been contributorily negligent in failing to check and discover the
hole.
OPINION
By the Court, Eather, J.:
This is an action for personal injury resulting from negligence. The defendants below have
appealed from judgment in favor of plaintiff. Appellants argued their appeal on the assigned
error of lack of proximate cause. This is indeed the issue, but it can be more narrowly defined
as whether the hazard which resulted in the injury was one for which the defendants should
have provided protection. Or, otherwise stating the issue, whether appellants may reasonably
be charged with the duty of anticipating or foreseeing the possible occurrence of the
happening leading to the injury. Or, stating the question more narrowly, whether the minds of
reasonable men could differ as to the foreseeability of the occurrence.
The accident occurred during the course of a softball game held at Moana field in Reno,
Nevada. Defendants are the owners of the field. A wire screen protects the grandstand from
the playing area. Defendants have permitted the screen to become damaged and worn to the
extent that holes exist. On this occasion the plaintiff was seated in the grandstand. A
preliminary Little League game had been completed. Two of the young players, aged about
11 years, had remained on the field.
73 Nev. 291, 293 (1957) Berrum v. Powalisz
aged about 11 years, had remained on the field. They had found a broken bat, had fitted it
together, and were swinging at the air with it. The end of the bat came loose, flew through a
hole in the screen, and struck plaintiff, inflicting injury.
Appellants contend that an accident, occurring as did this one, was not reasonably to be
anticipated and that it was not, therefore, such risk of injury as would reasonably require
protection against it be afforded; that the risks which the wire screen is designed to protect
against are the normal hazards involved in the game of baseball; that the duty of protection
owed by the proprietors of the baseball field is limited to acts on the part of the players or
participants in the game; that no duty of protection is owed as to acts by others who may be
on the playing field.
[Headnote 1]
In seeking to confine their responsibility as a matter of law to acts of the players or
participants themselves, appellants are going too far. Rather, the hazards against which they
owed protection were those reasonably to be expected in the light of the use to which the field
was being put.
Among the cases on which appellants rely are Hughes v. St. Louis National League
Baseball Club, Inc., 359 Mo. 993, 224 S.W.2d 989, 16 A.L.R.2d 904, where the plaintiff was
knocked down by the roughhousing of a group of boys, and Ratcliff v. San Diego Baseball
Club, 27 Cal. App.2d 733, 81 P.2d 625, where plaintiff just beyond the area covered by a
protective screen, was struck by a flying bat. The decisions in each case were for the
defendant. In each case, however, the court ruled that foreseeability of the injury could not,
under the facts of the case, be established as a matter of law and that the question should have
gone to the jury.
In the case at bar we conclude that the question of foreseeability is essentially one of fact.
From the judgment of the trial court sitting without a jury a finding is implicit that the hazard
of injury was reasonably to be foreseen. In support of such determination we may note that
skylarking is a propensity of boys; that if those boys are themselves baseball players their
presence on the sidelines of a baseball game will lead to play in a manner connected with
the game; that if baseball equipment is lying about it is in the nature of boys to make use
of it in their play.
73 Nev. 291, 294 (1957) Berrum v. Powalisz
that skylarking is a propensity of boys; that if those boys are themselves baseball players their
presence on the sidelines of a baseball game will lead to play in a manner connected with the
game; that if baseball equipment is lying about it is in the nature of boys to make use of it in
their play. These boys rightfully were on the field earlier engaging in their own ball game. We
find nothing in the record to indicate that their remaining on the sidelines was not to be
anticipated save the testimony of the boys that they had not done so before.
We are reinforced in this view by the informal nature of the game that was in progress. It
was not a scheduled game. It was not a league game. It was a softball game in which the
contenders were the Bartenders on the one hand and the Dealers on the other. It was not a
game in which one might anticipate the employment of a professional umpire, strict official
supervision, or such other policing as would be expected in a regular league game. The
owners of the field rented it for this purpose. This illustrates the conclusion that each case of
this nature must be determined upon its own facts without establishing a precedent for other
cases arising under different facts and circumstances.
[Headnote 2]
Under these facts we conclude that a reasonable man might well believe that such
skylarking as was here involved was reasonably to be anticipated as a hazard related to the
use to which the field was being put. At the least, we conclude, reasonable minds might well
differ upon the question. Under these circumstances this cannot be said to be a case where
factual determinations of the trial court may be set aside and remoteness determined as a
matter of law.
[Headnotes 3, 4]
Appellants further contend that by sitting in the grandstand at a point where the screen was
damaged the plaintiff assumed the risk of injury. There is testimony to the effect that she was
warned of danger and was aware of the existence of the hole. This, however, she denied. The
trial court expressly found that she did not have knowledge and was not warned and, under
the circumstances, this determination cannot be disturbed.
73 Nev. 291, 295 (1957) Berrum v. Powalisz
knowledge and was not warned and, under the circumstances, this determination cannot be
disturbed. Appellants contend that even though she may not have had actual knowledge of the
existence of the hole she should be held to have such knowledge, as a reasonable person
would have observed the condition of the protective screen. Assumption of risk, however,
requires actual knowledge or it cannot be said that the risk has been assumed. Nor is an
invitee who has paid for the privilege of attending and using the facilities of the defendant
required to examine into the safety of such facilities. She is entitled to rely upon the fact that
they are provided for her safety and cannot be held to have been contributorily negligent in
failing to check.
Judgment affirmed with costs.
Badt, C. J., and Merrill, J., concur.
____________
73 Nev. 295, 295 (1957) Cook v. Faria
CHARLES COOK and ELIZABETH COOK, Husband and Wife, Appellants,
v. GENEVA FARIA, Respondent.
No. 3985
November 26, 1957 318 P.2d 649
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Action by automobile passenger against owner and driver of automobile for personal
injuries sustained when automobile upset on road curve. The trial court entered judgment for
passenger, and automobile owner and driver appealed. The Supreme Court, Merrill, J., held
that where automobile owner and driver had made trip from California to Idaho for purposes
of hunting and to achieve the purpose were dependent upon automobile passenger, since
automobile owner was not an experienced hunter and passenger was experienced hunter with
knowledge of country and as to where deer might be found and by what roads good deer
country could be reached, presence of passenger and her husband in automobile, under
circumstances, was compensation for automobile ride and passenger was not within
guest statute.
73 Nev. 295, 296 (1957) Cook v. Faria
hunter with knowledge of country and as to where deer might be found and by what roads
good deer country could be reached, presence of passenger and her husband in automobile,
under circumstances, was compensation for automobile ride and passenger was not within
guest statute.
Affirmed.
(Rehearing granted February 14, 1958.)
Williams and Mann, of Elko, for Appellants.
Perce Hall, of Mountain Home, Idaho, and Orville R. Wilson, of Elko, for Respondent.
1. Automobiles.
In action by automobile passenger against driver and owner of automobile for personal injuries sustained
when automobile upset as it was rounding curve on road and driver was glancing at gasoline gauge,
question whether driver was negligent in driving automobile at about ten miles an hour and glancing at
gasoline gauge was for jury.
2. Automobiles.
Under statute defining guest as person who accepts a ride in any vehicle without giving compensation
therefor, compensation may be any tangible benefit, conferred by the invitee upon owner or operator of
the motor vehicle and a tangible benefit does not necessarily mean a money compensation. NRS 41.180.
3. Automobiles.
Within rule that compensation under automobile guest statute may be any tangible benefit conferred by
invitee upon owner or operator of motor vehicle, social companionship alone is not a tangible benefit, nor
is simple hospitality, courtesy, nor presence impelled by social amenities. NRS 41.180.
4. Automobiles.
Where automobile owner and driver had made trip from California to Idaho for purposes of hunting and
to achieve that purpose were dependent upon automobile passenger, because passenger was experienced
hunter with knowledge of country and as to where deer might be found and by what roads good deer
country could be reached, presence of passenger and her husband in automobile when automobile upset
constituted compensation for automobile ride and passenger was not within guest statute. NRS 41.180.
OPINION
By the Court, Merrill, J.:
This is an appeal taken by the defendants below from judgment for personal injuries
sustained in an automobile upset.
73 Nev. 295, 297 (1957) Cook v. Faria
judgment for personal injuries sustained in an automobile upset. At the time of the accident
appellant Elizabeth Cook was driving and respondent was an occupant of the car. The action
was brought by respondent for injuries sustained by her. A jury verdict in her favor in the sum
of $15,000 plus costs resulted. Upon this appeal from judgment appellants contend that
respondent was a guest and not entitled to recover in the absence of proof of gross negligence
and that gross negligence has not been established. NRS 41.180 provides that a guest shall
have no right of recovery against the person responsible for operation of a motor vehicle in
the absence of intoxication, willful misconduct or gross negligence. A guest is defined in the
statute as being a person who accepts a ride in any vehicle without giving compensation
therefor. The principal question involved upon this appeal is whether respondent can be said
to have given compensation for her ride, thus rendering the provisions of the guest statute
inapplicable.
The Cooks and the Farias were friends of long standing and originally were neighbors
residing in San Lorenzo, California. In 1951 the Farias moved to a ranch in Owyhee County,
Idaho, not far north of the Nevada border. In the fall of 1952 the Cooks joined the Farias on a
four-or-five-day hunting trip in Idaho. The trip was successful and plans were made to repeat
the experience the following year. In October 1953 the Cooks wrote the Farias in this regard.
The Farias advised that due to the pressure of ranch work they would be unable to go through
with their plans. The Cooks came anyway and for over a week remained at the Farias' ranch
as guests of the Farias. The two men on one or two occasions made short hunting trips and
one deer was shot.
Cook was not an experienced hunter. The deer obtained was the first he had ever shot. He
was 74 years of age and was not familiar with the country. The Farias, on the other hand,
were both experienced hunters with knowledge of how to bleed and clean a deer, were
thoroughly familiar with the country and well informed as to where deer might be found and
by what roads good deer country could be reached.
73 Nev. 295, 298 (1957) Cook v. Faria
On October 30 one final hunting trip by both couples was taken to Grasmere, Idaho and
then to the Gold Creek country in Nevada where the Farias had some mining property they
wished to show the Cooks. Having fired unsuccessfully at deer on two occasions the party
crossed the Nevada line into Elko County. Then, since it was growing late, they decided to
return without visiting the mining property. About five minutes after turning around, the
accident occurred. The road was single-lane, dirt, with an embankment on the left, and a
ten-foot decline on the right. The party had been discussing the gasoline supply and Mrs.
Cook checked the gauge. At the point of upset the road curved to the right and suddenly
narrowed from 11 1/2 feet to 7 feet. At this point Mrs. Cook, driving at about ten miles an
hour, for the second time took her eyes from the road to glance at the gasoline gauge. The
right front wheel left the road and the car toppled over to land upside down.
[Headnote 1]
We may concede the appellants' point that gross negligence is difficult to find from these
facts. If it can be said that Mrs. Faria gave compensation for her ride, however, simple
negligence is sufficient to justify the verdict. Reasonable minds might well differ upon the
question whether the acts of Mrs. Cook violated the standard of conduct of a reasonable man
and a jury finding of simple negligence would not be disturbed under these circumstances.
Accordingly we turn to the question of the existence of compensation.
[Headnote 2]
Nyberg v. Kirby, 65 Nev. 42, 188 P.2d 1006, 193 P.2d 850, was a case in which the
occupant of the car was present on the ride solely for the accommodation of the driver,
although the accommodation was principally founded in friendship. This court held
compensation to have been given, stating, p. 53, In Nevada the word compensation' and not
the word payment' is used in the statute and we have no decision in which it has been held
that such compensation for the transportation must be a benefit in a material or business
sense' conferred upon or to result to the owner or operator of the automobile.
73 Nev. 295, 299 (1957) Cook v. Faria
or to result to the owner or operator of the automobile. In this state the compensation, as in
California, may be any tangible benefit conferred by the invitee upon the owner or operator of
the motor vehicle. [Emphasis supplied.] A tangible benefit does not necessarily mean a
money compensation. In Follansbee v. Benzenberg, 122 Cal.App.2d. 466, 265 P.2d 183, 186,
42 A.L.R.2d 832, it was held that the term passenger' is not limited to a person paying for
his transportation in cash or its equivalent, but includes in its scope a person who gives such
recompense for a ride as may be regarded as compensation thereforthat is, a return which
may make it worth the other's while to furnish a ride. [Emphasis supplied.] See also Malloy
v. Fong, 37 Cal.2d 356, 232 P.2d 241; Duclos v. Tashjian, 32 Cal.App.2d 444, 90 P.2d 140;
Crawford v. Foster, 110 Cal.App. 81, 293 P. 841.
[Headnote 3]
In each of these California cases a business aspect of the trip is to be found, as was the
case to a minor degree in Nyberg v. Kirby, supra. In such cases courts generally are inclined
to be more easily satisfied with the compensation given than in cases where the purpose of
the ride is essentially social. It is uniformly held that social companionship alone is not a
tangible benefit, nor is simple hospitality, courtesy, nor presence impelled by social
amenities. Kuser v. Barengo, 70 Nev. 66, 254 P.2d 447; Whitmore v. French, 37 Cal.2d 744,
235 P.2d 3; Brand v. Rorke, 225 Ark. 309, 311, 280 S.W.2d 906; Loeffler v. Crandall, 129
Colo. 384, 270 P.2d 769; Bond v. Sharp, 325 Mich. 460, 39 N.W.2d 37.
The rule stated in the Follansbee case, however, may be regarded as applicable generally
rather than as a rule confined to cases of business trips. As was stated in Humphreys v. San
Francisco Area Council, Cal.App. 129 P.2d 118, 121, subsequent opinion 22 Cal.2d 436, 139
P.2d 941, It may be said of these cases generally that they show a marked tendency on the
part of our courts in construing our guest law to take a broad and realistic and not a narrow or
technical legalistic view of the situation and relation of the parties in determining whether
an injured occupant of an automobile was or was not a guest within the meaning of the
statute at the time of receiving an injury."
73 Nev. 295, 300 (1957) Cook v. Faria
and relation of the parties in determining whether an injured occupant of an automobile was
or was not a guest within the meaning of the statute at the time of receiving an injury.
[Headnote 4]
The case before us, although it may be said to involve such considerations as hospitality,
courtesy and social companionship, goes far beyond them. The chance to do some hunting
was foremost in the minds of the Cooks. It was of sufficient importance to them to warrant
their making the trip from California to Idaho. To achieve the purpose of this lengthy trip
with any degree of success, the Cooks where highly dependent upon the Farias. Without their
active assistance the entire trip would have gone for naught. The ride in question must be
viewed in this light. It may be said that it was to take this particular ride (among others) that
the Cooks had come all the way from California. The ride would not have been taken had not
the Farias accompanied the Cooks. It was the presence of the Farias, then, which the Cooks
desired, sought and obtained. That very presence, under these circumstances, was
compensation in itself. Nor can there be any question but that the benefit so conferred was
tangible. It was the most substantial possible benefit which could have been conferred upon
the Cooks under the particular circumstances, for it permitted realization of their primary
wants.
We conclude that the compensation given was sufficient to take the case from the
application of the guest statute.
Affirmed.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 301, 301 (1957) Smith v. Rahas
ALBERT A. SMITH and J. ELDREDGE SMITH, Appellants v.
WILLIAM RAHAS, Respondent.
No. 3987
November 29, 1957 318 P.2d 655
Appeal from the Fourth Judicial District Court, Elko County; Harold O. Taber, District
Judge, Presiding.
Cross actions between lessor and lessees. The trial court rendered judgment for the lessor
on his counterclaim for loss of cattle which had, together with ranch and grazing privileges,
been leased under agreement which required return of cattle at end of lease, and the lessees
appealed. The Supreme Court, Badt, C. J., held that evidence, in support of decree (which, in
effect, reformed covenant to return), sustained finding that parties had intended to enlarge
lessees' liability beyond their common law obligation for losses due to lack of ordinary care
and to hold lessees liable even though losses resulted from an act of God.
Affirmed.
Grant Sawyer, of Elko, for Appellants.
Williams and Mann, of Elko, for Respondent.
1. Judgment.
In cross actions between lessor and lessees, court had right to reform agreement to conform with real
intent of parties, even in absence of prayer for such relief. Rules of Civil Procedure, Rule 54(c).
2. Reformation of Instruments.
In lessor's action to recover for loss of cattle which had, together with ranch and grazing privileges, been
leased to defendants under agreement which required return of cattle at end of lease, evidence, in support
of degree which in effect reformed covenant to return, sustained finding that parties had intended to enlarge
lessees' liability beyond their common law obligation for losses due to lack of ordinary care and to hold
lessees liable even though losses resulted from an act of God.
OPINION
By the Court, Badt, C. J.:
This is an appeal from a judgment rendered in favor of defendant, respondent here, on his
counterclaim for damages for loss of cattle, which cattle, together with their home ranch
and certain grazing privileges had been leased by respondent to the appellants.
73 Nev. 301, 302 (1957) Smith v. Rahas
damages for loss of cattle, which cattle, together with their home ranch and certain grazing
privileges had been leased by respondent to the appellants. The court below in its findings of
fact determined that the loss of the cattle had been due to circumstances beyond the control of
the appellants as lessees and was not due to their negligence. On this appeal appellants
contend that these facts, so found, relieve them of liability for the loss; that their covenant to
return to the lessor at the expiration of this lease the said leased livestock added nothing to
their common law liability; that the lease constituted them bailees of the cattle and that as
such they are liable only for losses due to their negligence or lack of care.
The trial court in rendering judgment in favor of respondent, notwithstanding lack of
negligence on the part of appellants, appears to have been influenced by the construction of
the lease which the parties themselves placed upon it, and particularly upon three of its major
provisions. In these respects it found the lease ambiguous, against appellants' contention that
its terms are clear and not subject to construction.
As the words used in the written lease and as discussed by the parties and by the court are
of major importance, we have found it necessary to emphasize the same by frequent use of
italics. All such emphasis, including emphasis of words within quotation marks, has been
supplied.
The lease in question granted, demised and let to the lessees certain ranch property,
together with water rights and appurtenances, forest reserve privileges, farming machinery
and horses and also the following cattle: 84 steers, 32 heifers, 9 cows, 4 bulls, 136 cows and
59 calves, aggregating a total of 324 head, subject to count and revision October 31, 1950.
The term of the lease was from June 27, 1950 to October 31, 1953. The lessees agreed to
occupy, till and cultivate the premises in farmer-like manner and according to the usual
course of farming practices in the neighborhood; to deliver to the lessor one half of the hay
crops, to be divided on the premises. It was further provided: It is also agreed that as part of
the rental, the lessees will deliver to the lessor one half of the increase of said cattle.
73 Nev. 301, 303 (1957) Smith v. Rahas
that as part of the rental, the lessees will deliver to the lessor one half of the increase of said
cattle. It is agreed that the lessor shall have the sole right of sale or the disposition of the
increase of said livestock, and the proceeds thereof shall be divided one half to the lessees
* * *. The lessees further agree to return to the lessor, at the expiration of this lease, the said
leased livestock and all hay left on said premises; lessor, however, agrees to pay to the lessees
the expense of harvesting said hay; it not being the intention of the parties that said livestock
be returned in the same classifications as delivered to lessees, as such requirement would be
impractical and impossible by virtue of the limited period hereof.
Some disputes arose between the parties, and the premises and livestock were surrendered
to the lessor in December 1952. The lessees sued for one half of the value of the turn-off sold
in 1952 and one half of the value of the hay on the premises. The lessor counterclaimed for a
shortage of 55 head of the cattle returned. The court found that the lessees, plaintiffs, were
entitled to judgment for one half of the proceeds of sale of turn-off for 1952 and one half of
the value of the hay harvest in 1952, and that the lessor, defendant and counterclaimant, was
entitled to judgment for the reasonable value of the shortage of 55 head of cattle returned.
This left a balance of some $2,757 in favor of defendant and counterclaimant.
The cause of the loss is clear. The court noted in its decision: [D]uring the winter of
1951-52 there were snow and wind storms of unprecedented violence which the stockmen
could not be expected to have foreseen and guarded against. The lessees made every human
effort to get feed to the cattle, but were prevented by an act of God. This was carried forward
into the court's formal findings of fact.
The litigation was initiated by the complaint of the lessees alleging the execution of a lease
from Rahas to the Smiths dated June 27, 1950 of the ranch properties together with
implements, tools, machinery, equipment and horses, together with 324 head of cattle for the
period from June 27, 1950 to October 31, 1953, with the lessees to pay as rental to the
lessor one half of the proceeds of hay, pasture and crops, together with one half of the
increase of said cattledefendant having the sole right of sale or disposition of the
increase; that on November 15, 1952 {approximately one year prior to the termination of
the lease) Rahas requested the Smiths voluntarily to surrender the lease so that he might
make a sale of the premises and promised the Smiths "that he would settle with them for
their proper share of hay produced during the year 1952 and their proper share of
increase sold; that the Smiths, acting on this promise, surrendered their rights under the
lease; that Rahas sold the increase for $11,497; that the Smiths had produced 25S tons of
hay of a reasonable value of $6,450.
73 Nev. 301, 304 (1957) Smith v. Rahas
lessees to pay as rental to the lessor one half of the proceeds of hay, pasture and crops,
together with one half of the increase of said cattledefendant having the sole right of sale or
disposition of the increase; that on November 15, 1952 (approximately one year prior to the
termination of the lease) Rahas requested the Smiths voluntarily to surrender the lease so that
he might make a sale of the premises and promised the Smiths that he would settle with
them for their proper share of hay produced during the year 1952 and their proper share of
increase sold; that the Smiths, acting on this promise, surrendered their rights under the lease;
that Rahas sold the increase for $11,497; that the Smiths had produced 258 tons of hay of a
reasonable value of $6,450. They prayed judgment for $8,973, one half of the total of these
sums. Defendant in answer alleged the voluntary abandonment of the premises by the
plaintiffs, denied the return of the livestock and denied his liability for the payments
demanded. As a counterclaim he alleged the loss by plaintiffs of a large number of livestock
and demanded judgment for their reasonable value. He attached a copy of the lease as an
exhibit. In answer to the counterclaim the Smiths admitted the execution of the written lease
and the delivery of the livestock in the numbers and classifications as alleged, admitted that
they moved off the premises on or about December 4, 1952, but denied the allegations of the
shortages of livestock. They further pleaded that the counterclaim failed to state a claim on
which relief could be granted. They did not specifically plead that the losses, if any, were due
to act of God.
A pretrial conference was had, followed by a trial in which the parties and their witnesses
were examined at length. Pursuant to the pretrial conference and development had during the
trial the learned trial judge analyzed the situation as follows: Plaintiff pleaded an express
promise on the part of the defendant to pay one-half the value of the hay on the premises and
one-half the proceeds of the 1952 fall turn-off sale if the plaintiff would abandon the ranch.
The defendant has pleaded that the abnormal loss of cattle in the winter of 1951 and '52
amounts to a breach of the covenant to operate the ranch in a farmer-like manner, and
that this excused further performance by the defendant."
73 Nev. 301, 305 (1957) Smith v. Rahas
52 amounts to a breach of the covenant to operate the ranch in a farmer-like manner, and that
this excused further performance by the defendant. The court then remarked: The
determination of rights and liabilities of the parties to the agreement who have ignored its
provisions is not an easy task. The court then referred to the covenant of the lessees to
deliver half of the hay etc., whereas for over two years the entire crop of the hay harvested
and stacked was used to feed the cattle during the winter. It referred to the covenant that the
lessees would deliver to the lessor one half of the increase of said cattle, whereas half of the
increase was never delivered to the lessor. It referred to the fact that the lessor did not sell the
increase and divide the proceeds with the lessees but on the contrary sold what is known as
the turn-off and that the proceeds of the 1950 and 1951 turn-off were divided with the lessees.
(Annual turn-off in the operation of a herd of stock cattle, under the custom followed by the
Rahas ranch for many years, meant the sale of the two-year old steers and so many of the old
cows and dry cows as it seemed advisable to sell to preserve a properly balanced herd.) So
impressed was the trial court with the uncertainties of the situation as provided for in the
lease that he remarked in his decision, the lease in this case sets a new standard for
ambiguity. It followed this up with the following: Yet the parties, themselves, by a
consistent course of conduct for over two years have placed a practical construction on it
which defines their rights and fixes their responsibilities. The court then applied the rule
giving great, if not controlling, effect to the interpretation placed upon the contract by the
parties themselves when determining the meaning of an indefinite or ambiguous contract.
Flyge v. Flynn, 63 Nev. 201, 166 P.2d 539. It held that under the doctrine of practical
interpretation the contract, in three of its most essential covenants, was not as recited in the
written instrument but on the contrary was construed, interpreted, agreed and acted upon by
the parties in an entirely different manner. Two of these we have discussed. The third is the
crux of this appeal. Instead of applying to the covenant to return to the lessor, at the
expiration of this lease, the said livestock" the common law rule of the law of bailment
and agistment, which would exclude liability for losses arising other than from negligence
or lack of reasonable or ordinary care, the covenant to return was held to be a covenant
to return the numbers of the leased livestock at all events.
73 Nev. 301, 306 (1957) Smith v. Rahas
lessor, at the expiration of this lease, the said livestock the common law rule of the law of
bailment and agistment, which would exclude liability for losses arising other than from
negligence or lack of reasonable or ordinary care, the covenant to return was held to be a
covenant to return the numbers of the leased livestock at all events.
We held in Bramlette v. Titus, 70 Nev. 305, 267 P.2d 620, that under the type of bailment
deemed an agistment the agister is bound to take reasonable or ordinary care of the animals
committed to his charge and is liable in event of loss only for his negligence or want of
ordinary care, and that where the evidence shows that the cattle were lost through no fault of
the agister, the owner cannot recover on the contract of bailment or agistment. We may add to
this what seems to be a well accepted rule that a mere promise of the bailee to return the
bailed property * * * imposes no greater liability upon the bailee than the implied promise
involved in every contract of bailment. See annotation 150 A.L.R. 271 and cases cited and
reviewed in Fuchs v. Goe, 62 Wyo. 134, 163 P.2d 783, 166 A.L.R. 1329. It is, however, just
as generally held that the liability of the bailee may be enlarged by special covenant. See In re
More's Estate, 121 Cal. 609, 54 P. 97, 98, in which the lessee agreed that the leased flock of
sheep shall be grown up to 40,000 head of sheep, and that the said lessees shall, at the end of
said term, turn over and deliver to said lessor * * * that number, to wit, 40,000 head of sheep
* * *.
In its action thus recited it is clear that the court in effect reformed the instrument in
respect to the foregoing three items. There is nothing ambiguous in the clause providing for a
division of the hay. It was simply not the real agreement of the parties. The real agreement
was to feed the hay to the cattle to carry them through the winter, with, possibly, division of a
surplus. There was nothing ambiguous in the clause of the written agreement agreeing to a
division of the increase. The real agreement of the parties was simply that the lessor should
sell the turn-off and divide the proceeds.
73 Nev. 301, 307 (1957) Smith v. Rahas
lessor should sell the turn-off and divide the proceeds. There was nothing ambiguous in the
covenant to return the cattle at the end of the lease under the construction of such clause as
almost uniformly applied by the courts. The court simply held that the real agreement of the
parties was to return such numbers of cattle at all events, that is to say, even though a loss or
shortage was not the result of negligence or lack of reasonable care or husbandry on the part
of the lessees.
It seems clear to us, therefore, that the court did not in effect resolve ambiguous clauses
but, despite the fact that it made no formal decree of reformation, reformed the contract to
provide what it decided was the real agreement of the parties.
[Headnote 1]
That it had the right thus to reform the agreement even in the absence of a prayer to such
effect seems fully supported by Rule 54(c) NRCP, which reads in part: * * * Every final
judgment shall grant the relief to which the party in whose favor it is rendered is entitled,
even if the party has not demanded such relief in his pleadings.
In Metropolitan Casualty Ins. Co. v. Friedley, 79 F. Supp. 978, 982, the court specifically
applied this rule, although the party did not specifically request reformation. The simple
pleading and proof of facts justifying reformation was held sufficient to grant such relief. It
referred to the holdings of the majority of jurisdictions that where the pleadings and evidence
warrant reformation the court may in its discretion give effect to the intended contract and
enforce it as if it were reformed without any formal decree of reformation. See the cases cited
in the opinion. See also 45 Am.Jur. 588, Reformation of Instruments, secs. 10 and 11, reciting
the rule in jurisdictions under the reformed procedure, or in jurisdictions in which the
distinctions between law and equity are abolished, or in which both forms of relief are
administered by the same court, (all of which conditions exist in this state), in an action at law
upon an instrument, the court may in a proper case construe the contract as it was intended
by the parties and render a proper judgment on the basis thereof, just as if there had
been first a reformation of the contract.
73 Nev. 301, 308 (1957) Smith v. Rahas
contract as it was intended by the parties and render a proper judgment on the basis thereof,
just as if there had been first a reformation of the contract.
It should first be noted that the suggestion of such relief appeared first in the plaintiffs'
complaint where they pleaded the legal effect as a provision to pay, as rent, one half of the
increase of the cattle but prayed for judgment for one half of the value of the cattle sold. And
although plaintiffs alleged the operation of the ranch by them for two years (during both of
which years the hay crop was fed to the cattle over the winter season and presumably would
have to be fed in the approaching winter season of the current year), they also sought
judgment for half the value of the hay on the premises. The court in effect reformed the
contract in these two respects in accordance with the contention of plaintiffs, and awarded
them judgment for half of the value of the hay crop on the premises and half of the proceeds
of the sale of the cattle turn-off. The lessor did not appeal from this part of the judgment.
Despite the absence of appeal from the judgment which in effect reformed the contract in
these two respects, we may say that it is amply supported by the record.
Likewise, in holding the appellant lessees liable to account for the total amount of cattle,
the court held that to hold otherwise would do violence to the provision of the lease and
ignore its practical construction by the parties. As above noted, we have held that this was
likewise in effect a reformation of this provision of the contract rather than the interpretation
of an ambiguous provision. We approach then what appears to be the main questionas to
whether the reformation in this particular is justified.
When plaintiff J. Eldredge Smith was asked at the beginning of plaintiffs' case, What, if
any financial arrangement was made between you and Mr. Rahas as to the loss of these cattle,
the financial loss to the parties of the lease and an objection was made on the ground that it
was irrelevant, plaintiffs' counsel stated: Your Honor, just on the theory that the actions of
the parties under the terms of the lease would appear to me to be an interpretation of their
understanding of the lease.
73 Nev. 301, 309 (1957) Smith v. Rahas
an interpretation of their understanding of the lease. Now, there is no loss clause in this
lease, and their actions in connection with losses for the period of time that the lease ran,
prior to its termination, it would appear to me would be relevant in connection with their
understanding as to the losses.
After the losses of the winter of 1951-1952 Mr. Smith was summoned to a meeting with
the attorney for Mr. Rahas and related the following conversation: A. Mr. Robbins said it
was futile to stay on the ranch, that I couldn't expect to have any returns from the turn-off of
the 52 crop sales. Q. And did you have any plans as to how you were going to make up these
losses? A. Well, I could have taken the money that I got out of that cut and bought more cattle
and replaced them. Q. Could have replaced the total amount? A. Well, I think I could have
later; maybe not at that particular time, but I think if I had been given a chance I could have.
Q. When you say if you had a chance; how long a time did you want to replace those cattle?
A. I think I could have probably replaced them by the termination of the lease. Q. And if you
had gotten half of the sale of these cattle, that would have been around five thousand dollars?
A. That is right.
The first cattle sales made from the herd after the lease was entered into June 27, 1950
were in the fall of that year. The two-year old steers and some old cows were sold and of the
proceeds of some $9,000 the lessees were given one half. At that time the lessees had been
operating the premises for less than four months. The stock thus sold must have been raised
through at least more than two years of operation in which the lessees could have had
practically no part.
Smith was called as an adverse witness and the following occurred: Now, referring to this
lease, was it your testimony yesterday that it was your understanding that as of the normal
termination of the lease, if it had been carried through, that you would have had to return 258
or 259 head of cattle to Mr. Rahas? A. That is right. * * * Q. Well, now, I am just asking you
the question: did you believe that you would receive half of the increase in the fall of 1952,
if there had been an increase? A. Well, I knew that we had sustained a loss and I didn't
know just how we were going to work out the arrangement."
73 Nev. 301, 310 (1957) Smith v. Rahas
half of the increase in the fall of 1952, if there had been an increase? A. Well, I knew that we
had sustained a loss and I didn't know just how we were going to work out the arrangement.
Later he was asked, Was it your interpretation of the lease that you would return the same
number of cattle that you had taken over? A. That is right. The court later took the
examination in hand and after determining by his questions the number of cattle on hand after
the fall count and after the fall sales of 1950, asked, The herd, then, would be 267; you felt
that you should return that many. A. Yes, sir.
Nowhere in the pleadings or in the testimony of the Smiths or in the statements of their
counsel can be found any contention that no liability arose by reason of the unprecedented
snow and winds of the winter of 1951-1952, or, otherwise put, that the losses were due to an
act of God. The only reference to such element occurs at one point when the Smiths offered
in evidence photographs of conditions existing March 26, 1952. The following then occurred:
Mr. Mann: Your Honor, I would object on the ground that they are irrelevant; also there has
been some testimony admitted as to the conditions up there, over objection. I don't think the
pictures add anything to it, but, as I see it, they are evidently offered to show some excuse or
some reason for the cows dying during that winter, and it is our contention that such has not
been [pleaded]. The Court: You certainly don't claim that you haven't had notice; we have had
the pre-trial conference and it was discussed yesterday. Mr. Mann: It hasn't been [pleaded]; it
is beyond the issues formed; it is not a defense to the loss of cattle as set up in our
counter-claim and it is outside the order of proof. The Court: the objection is overruled. They
may be admitted in evidence.
There are no minutes of the pretrial conference. The court at the beginning of the trial
referred to the pretrial conference and alluded to nine separate items having to do with (1) the
admission of the lease, (2) the count of the cattle October 31, 1950, (3) the count when the
lessees left the premises, {4) the hay tonnage, {5) the sale price of the October, 1952
turn-off, {6) certain damage to the barn, {7) the letter to J.
73 Nev. 301, 311 (1957) Smith v. Rahas
the lessees left the premises, (4) the hay tonnage, (5) the sale price of the October, 1952
turn-off, (6) certain damage to the barn, (7) the letter to J. Eldredge Smith by John E.
Robbins, attorney for Rahas. As No. 8 the court stated, The pleadings of the parties are in
order and there is no necessity of amendments * * *. No. 9 had to do with the admission of
photographs, to which objection was reserved. If there is an inference that the court's remark
last above quoted, when the photographs were offered, that the pretrial conference indicated a
reliance by the lessees on the assertion that the shortage in the cattle resulted from an act of
God, we certainly do not find it in the items of the pretrial conference noted by the court.
Quite obviously those items were recited from the presiding judge's notes. The court's
notation that the pleadings were in order without necessity for amendment can more
reasonably be said to indicate that such defense was not discussed.
The importance of applying the rule of interpretation by the parties was emphasized by this
court in Flyge v. Flynn, 63 Nev. 201, 209, 166 P.2d 539, because they are far less likely to be
mistaken when they are in harmony and before they have had to resort to law. It would seem
to apply a fortiori where, as here, Smith's interpretation of his liability to return the leased
cattle, even though lost through act of God, was given both before and during the trial of the
action.
[Headnote 2]
We conclude that the court's judgment against the plaintiffs on defendant's counterclaim
for failure to return the leased livestock, based upon what was in effect a reformation of the
covenant to return, finds ample support in the record. The court in effect held that the parties
themselves interpreted the covenant to mean that the lessees were to make up the losses
occurring from any cause. The court's conclusion of liability necessarily implies a finding that
this was the understanding of both parties that such was their agreement. The covenant was,
therefore, an enlargement of the liability of the lessees beyond their common law liability
limited to losses due to a lack of ordinary care.
73 Nev. 301, 312 (1957) Smith v. Rahas
liability of the lessees beyond their common law liability limited to losses due to a lack of
ordinary care.
The judgment is affirmed with costs.
Eather and Merrill, JJ., concur.
____________
73 Nev. 312, 312 (1957) Garden v. State
KENNETH S. GARDEN, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 4000
December 3, 1957 318 P.2d 652
Appeal from the Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
Department No. 1.
Defendant was convicted of statutory rape. The trial court rendered judgment, and
defendant appealed. The Supreme Court, Merrill, J., held that where prosecutrix and her 10
year old sister admitted having repudiated their charges against defendant shortly before trial,
but at trial insisted upon fact of defendant's guilt, earlier repudiations did not destroy
probative value of their testimony to the contrary at trial, or render that testimony incredible
as matter of law, and inconsistencies posed question of credibility for jury.
Affirmed.
(Petition for rehearing denied December 19, 1957.)
Harry E. Claiborne, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General; George M. Dickerson, District Attorney, Clark
County; VeNoy Christofferson, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In prosecution for statutory rape, it was jury function to resolve conflicts and inconsistencies in
testimony, and manner in which it did so and weight it gave evidence would not be questioned upon appeal.
73 Nev. 312, 313 (1957) Garden v. State
2. Criminal Law.
In prosecution for statutory rape of 12 year old girl, wherein prosecutrix and her 10 year old sister
admitted having repudiated their charges against defendant shortly before trial, but at trial insisted upon
fact of defendant's guilt, earlier repudiations did not destroy probative value of their testimony to the
contrary at trial or render that testimony incredible as matter of law, and inconsistencies posed question of
credibility which it was jury's function to resolve.
3. Criminal Law.
In prosecution for statutory rape of 12 year old girl, rejection of testimony offered for purposes of
impeachment of prosecutrix to effect that she had stated to witness that defendants was innocent, even if
erroneous, was not prejudicial where prosecutrix had already admitted that she had voiced her repudiation
to six other persons.
4. Criminal Law.
In prosecution for statutory rape of 12 year old girl, statement of state's attorney, made during argument
to jury upon point of credibility, referring to fact that defendant had admitted a burglary and theft, was not
basis for reversal where objection was made to attorney's remark and jury was admonished to disregard it.
5. Criminal Law.
Where jury requested, during course of its deliberation, that certain testimony be read back to it, judge's
advising jury that testimony would be read back at 10 o'clock the following morning did not constitute
misconduct and was not basis for reversal, although jury announced that it had reached its verdict without
awaiting reading of testimony.
6. Criminal Law.
The manner in which a jury request during deliberation that certain testimony be read back to it is to be
handled lies largely within discretion of trial judge.
7. Criminal Law.
A jury's need for having testimony read back to it is question which jury alone is able to decide.
8. Criminal Law; Indictment And Information.
In prosecution for statutory rape of 12 year old girl, although evidence fixed date of crime as May 21
rather than May 20 as charged in the information, variance was not material and was not ground for new
trial where no attempt had been made to show newly discovered evidence.
9. Criminal Law.
If prejudicial surprise resulted from variance in date of crime as fixed by evidence and as charged in
information and affected defendant's ability to prepare a case in defense, his proper course was to ask a
continuance.
73 Nev. 312, 314 (1957) Garden v. State
OPINION
By the Court, Merrill, J.:
This is an appeal from judgment of conviction of the crime of statutory rape.
The first assignment of error is that the jury verdict of guilty is unsupported by any
substantial evidence; that the trial court, under the evidence, should have advised a verdict of
not guilty. Appellant has cited authority upon the proposition that a scintilla of evidence is not
enough; that there must be substantial evidence to provide support for the verdict. This
proposition does not meet the problem presented by this case, however. There can be no
doubt of the substance of the proof if that proof be regarded as credible. The problem is
exclusively one of credibility.
The prosecutrix was appellant's stepdaughter, age 12 years. She testified that the offense
took place on Monday, May 21, 1956 in the family home in Las Vegas at about 5:30 o'clock
p.m. Corroborating her testimony was that of her sister, age 10 years, who testified to having
witnessed acts of intercourse between her sister and her stepfather on several occasions. The
prosecutrix testified in some detail to the nature of the acts constituting the offense. These
acts, if committed, unquestionably constituted the crime of statutory rape. This testimony, if
believed, unquestionably provided substantial proof of guilt.
In four respects doubt is cast upon the truth of this testimony. (1) The prosecutrix had
testified under oath at a juvenile court hearing that the offense had been committed Sunday,
May 20. At the time of trial she was unable to explain this discrepancy but insisted that
Monday, the 21st, was the true date. (2) Testimony of several witnesses called by the
appellant accounted for his presence elsewhere during the late afternoon of Monday, the 21st.
(3) The prosecutrix testified that she had engaged in acts of intercourse with appellant over a
substantial period of time, commencing when the family resided in Oregon, continuing as the
family moved to California, to Nebraska, to Reno, Nevada, and, finally, to Las Vegas.
73 Nev. 312, 315 (1957) Garden v. State
to Las Vegas. A Nebraska physician called as witness by the appellant, testified that he had
examined the prosecutrix in March 1955 and that at that time she showed no indication of
having engaged in intercourse.
[Headnote 1]
These issues and inconsistencies constitute no basis for reversal. It was the jury function to
resolve these matters and the manner in which it did so and the weight it gave to the evidence
will not be questioned upon appeal. Contradictions and inconsistencies in the testimony of a
witness alone will not constitute inherent improbability. People v. Amadio, 25 Cal.App. 729,
731, 145 P. 151, 152, as quoted in People v. Holman, 72 Cal. App.2d 75, 89, 164 P.2d 297,
305.
The fourth and most serious respect in which the testimony of both girls is impeached is
found in the fact that both had, prior to trial, wholly repudiated their original statements as to
the guilt of their stepfather and had insisted upon his innocence. Upon cross examination the
prosecutrix admitted that four days after the juvenile court hearing she had told her mother
that she had made up the story of her stepfather's misconduct because she was angry with him
for punishing her; that during the following few days she had made the same statement of
repudiation to appellant's attorney and to four other persons and had signed a statement to that
effect at the office of appellant's attorney. Her sister had likewise made a statement to
appellant's attorney repudiating her earlier statement to the police that she had witnessed the
commission of acts of intercourse.
Notwithstanding their admissions of earlier inconsistent statements, both girls at the time
of trial insisted upon the truth of their testimony then given and upon the fact of their
stepfather's guilt. Their earlier inconsistencies they explained as due to their desire to prevent
their stepfather from having to go to prison.
[Headnote 2]
These earlier repudiations cannot be said to have destroyed the probative value of
testimony to the contrary given at the time of trial or to have rendered that testimony
incredible as a matter of law.
73 Nev. 312, 316 (1957) Garden v. State
testimony incredible as a matter of law. The explanation given by the girls for their
inconsistent statements was not inherently improbable. The inconsistencies, then, posed a
question of credibility which it was the jury's function to resolve. The jury obviously chose to
disbelieve that the detailed description of the manner in which the offense had been
committed was a creature of imagination which had been related in juvenile court and on trial
below out of longlasting anger. It obviously chose to believe that, while anger may originally
have caused the complaint to have been made, still the circumstances of the offense were
truly related; that it was the repudiation of the complaint which was false, but that a false
repudiation was understandable in the light of the children's affection for or loyalty to their
stepfather.
In two California cases the identical problem was faced by the court. Both cases involved
statutory rape committed by the defendant upon his own child. In People v. Crawford, 24
Cal.App. 396, 141 P. 824, 827, the court stated, It can be readily understood how the jury
must have viewed the situation and made allowance for the natural desire of the child to
protect her father. No doubt the jurors believed that, while it was not strange nor incredible
that the prosecutrix would falsely avow her father's innocence, it was almost unthinkable that
she would falsely charge him with the crime. In People v. Avena, 34 Cal.App. 500, 168 P.
148, the prosecutrix and her sister both admitted that their testimony at the trial was directly
contrary to that given by them at the preliminary examination. Their explanation of the
testimony given at the preliminary examination was that they had been told that if their father
was convicted he would be sent to the penitentiary and they to the reform school. The court
stated, It was for the jury to decide whether these contradictory statements under all the
circumstances and facts placed before the jury so far impeached these witnesses as to render
their testimony at the trial improbable or unbelievable.
73 Nev. 312, 317 (1957) Garden v. State
We conclude that it was not error for the trial court to leave the verdict to the jury; that the
jury's determination of credibility may not be disturbed on this appeal.
[Headnote 3]
Appellant next asserts as error the rejection by the trial court of certain testimony offered
for purposes of impeachment. The testimony was to the effect that the prosecutrix had stated
to the witness that her stepfather was innocent and that she had made up the story upon which
her complaint had been based. The court rejected the testimony upon the ground that the
prosecutrix had already admitted the fact. The record demonstrates that she had not admitted
the conversation in question. As to this witness she first denied the conversation and then,
upon being pressed, modified her testimony to state that she did not remember having it.
The court's recollection of the precise state of the record was faulty. However, even should
this constitute its ruling erroneous as a matter of law, no prejudice can be found. The rejected
testimony would not have established the falsity of any testimony given at the time of trial but
would simply have supplied facts which the prosecutrix had stated she did not remember. She
had already readily admitted the fact of her repudiation of the complaint and that she had
voiced her repudiation to six different persons. We fail to see how proof that she had voiced it
to a seventh could alter the situation in the slightest degree. The essential question was not
whether the statement had been made, or to whom, or how often it had been made. The
question was whether the explanation for making it was reasonable and believable. There is
no merit in this assignment of error.
[Headnote 4]
Appellant assigns as misconduct of the state's attorney a remark made during argument to
the jury upon the point of credibility. Counsel stated That only leaves the defendant who has
admitted a burglary and a theft. The remark referred to testimony of the defendant who,
upon being asked whether he had ever been convicted of felony, had answered in the
affirmative and upon questioning by his own attorney had supplied the information as to
the crimes involved.
73 Nev. 312, 318 (1957) Garden v. State
of felony, had answered in the affirmative and upon questioning by his own attorney had
supplied the information as to the crimes involved. Objection was made to counsel's remark
and the jury was admonished to disregard it. Any harm which may have resulted from the
remark (independent of that resulting from the testimony to which it referred) was, we feel,
eliminated by the admonition.
[Headnote 5]
Appellant assigns as misconduct failure of the trial judge to comply with a jury request,
made during the course of its deliberation, that certain testimony be read back to it. The
record shows that the request was made at six o'clock p.m., after the jury had been in
deliberation for about six hours. At that time the judge advised that the testimony would be
read back to the jury at 10 o'clock the following morning. At a little after 11 o'clock that same
night, without awaiting the reading back of testimony, the jury announced that it had reached
its verdict.
[Headnotes 6, 7]
The manner in which such a jury request is to be handled lies largely within the discretion
of the trial judge. State v. Jennings, 131 Ore. 455, 282 P. 560. In the case at bar the request
was not denied. The jury was expressly advised that it would be granted the following
morning. Obviously the need for a reading back of the testimony disappeared as the jury's
deliberations continued and it was able to reach its verdict without such assistance. A jury's
need for such assistance is, of course, a question which the jury alone is able to decide. We
find no misconduct here.
[Headnotes 8, 9]
Appellant assigns as error failure of the trial court to grant new trial upon the ground that
the evidence fixed the date of the crime as May 21, 1956 rather than May 20, 1956 as charged
in the information. This was not a material variance. Ex Parte Stricker, 71 Nev. 193, 284 P.2d
383. Appellant claims that prejudicial surprise resulted from the variance which affected
his ability to prepare a case in defense.
73 Nev. 312, 319 (1957) Garden v. State
resulted from the variance which affected his ability to prepare a case in defense. If such were
the case his proper course was to ask a continuance. This was not done. In denying motion for
new trial upon this ground the trial judge noted that no attempt had been made to show newly
discovered evidence. We may therefore assume that despite his surprise appellant was still
able to summon all available evidence as to his whereabouts on the afternoon of May 21.
Other error is assigned which we do not find it necessary to consider since it was not the
subject of objection made during the course of trial.
Affirmed.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 319, 319 (1957) Holden v. Truck Insurance Exchange
EVERETT HOLDEN and BUD KIMBALL, Appellants, v. TRUCK INSURANCE
EXCHANGE, a Corporation, Respondent.
No. 3977
December 6, 1957 318 P.2d 1110
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Action for injuries sustained by passenger in a taxicab owned by defendant, and allegedly
insured by codefendant. The trial court rejected passenger's offer to prove facts in support of
his contention that insurer was estopped from denying coverage and passenger appealed. The
Supreme Court, Badt, C. J., held that offer of proof that defendant made application to
insurer's agent for complete coverage on his fleet of cabs, and that after receipt of policy
agent said that all cabs were covered, and that after inquiry by defendant as to premiums
charged, insurer, upon inquiry from agent, replied that one of defendant's cabs was not
covered, but did not advise defendant of such fact or instruct agent to so advise
defendant, and that defendant was never so advised, and that he thought he was
covered, was sufficient to present question for the jury on issue of whether insurer was
estopped from denying coverage on such cab.
73 Nev. 319, 320 (1957) Holden v. Truck Insurance Exchange
that one of defendant's cabs was not covered, but did not advise defendant of such fact or
instruct agent to so advise defendant, and that defendant was never so advised, and that he
thought he was covered, was sufficient to present question for the jury on issue of whether
insurer was estopped from denying coverage on such cab.
Reversed.
Wright and Eardley, of Elko, for Appellant Everett Holden.
Charles B. Evans, Jr., of Elko, for Appellant Bud Kimball.
Goldwater, Taber and Hill, of Reno, for Respondent.
1. Estoppel.
In action for injuries sustained by passenger in a taxicab owned by defendant, and allegedly insured by
codefendant, no reply to insurer's defense of no coverage was required to enable plaintiff to contend that
insurer was estopped to deny coverage. Rules of Civil Procedure, Rules 7(a), 8(d).
2. Insurance.
In action for injuries sustained by passenger in a taxicab owned by defendant, and allegedly insured by
codefendant, offer of proof that defendant made application to insurer's agent for complete coverage on his
fleet of cabs, and that after receipt of policy agent said that all cabs were covered, and that after inquiry by
defendant as to premiums charged, insurer upon inquiry from agent, replied that one of defendant's cabs
was not covered, but did not advise defendant of such fact or instruct agent to so advise defendant, and that
defendant was never so advised, and that he thought he was covered, was sufficient to present question for
the jury on issue of whether insurer was estopped from denying coverage on such cab.
OPINION
By the Court, Badt, C. J.:
Appellant Holden, a fare-paying passenger in a taxicab (one of a fleet of five) owned and
operated by appellant Kimball, was injured when the taxi collided with a telephone post.
73 Nev. 319, 321 (1957) Holden v. Truck Insurance Exchange
a telephone post. In his suit against Kimball he joined respondent, Holden's insurance carrier.
NRS 706.500. Respondent's answer denied coverage. Holden filed no reply. The court
granted respondent's motion for a separate trial on the issue of insurance coverage. Following
a pretrial conference, at a trial of this issue before a jury, plaintiff made an offer of proof of
facts in support of his contention that respondent was estopped from denying coverage. We
have concluded that the trial court's rejection of this offer was error, requiring remand for trial
of this issue.
Respondent issued to Kimball its policy January 21, 1953, effective to July 2, 1953, and
later renewed to January 2, 1954, reciting:
The insurance afforded is only with respect to such and so many of the following
coverages as are indicated by a specific Premium Deposit charge or charges. The limit of the
Exchange's liability against each such coverage shall be stated herein, subject to all of the
policy provisions having reference thereto:
Coverages Limits of Liability Premium Deposit
A Bodily Injury Liability No. 1
Each person 5,000.00
Each accident 10,000.00 189.00
B Property Damage Liability 5,000.00
Description of automobile and the facts respecting its purchase by named insured:See
Fleet.
The last reference is to a Fleet Schedule Endorsement, which reads as follows:
This endorsement, when countersigned by an authorized representative of the Exchange,
shall be valid and form a part of policy No. 54524517 and shall supersede any prior fleet
schedule endorsement attached to the policy.
The following entries shall apply as noted below with respect to the particular automobile
in connection with which the entry is made. The word nil' in any premium column shall
mean that such coverage is not afforded * * *. This is followed by the following listing:
"Premium Coverages A & B
73 Nev. 319, 322 (1957) Holden v. Truck Insurance Exchange
Premium Coverages A & B
1 Make of Car Serial No. & Motor No. 63.00
2 Make of Car Serial No. & Motor No.
3 Make of Car Serial No. & Motor No.
4 Make of Car Serial No. & Motor No. 63.00
5 Make of Car Serial No. & Motor No. 63.00
Kimball's first policy had been taken out with respondent July 2, 1952, on the three cabs
he was then operating, being units 1, 2 and 3. (See above.) The policy of January 21, 1953
added units 4 and 5. On July 2, 1952 he had public liability and property damage insurance on
units 2 and 3, not with respondent but with Lloyds of London, which policies on such risks
would expire in September 1952.
In the pretrial conferences plaintiff attempted to make it clear that he advanced a number
of contentions against appellant's plea of lack of coverage. One of these was estoppel.
Pursuant to order made the day before the trial, that plaintiff file next morning a statement of
all of his contentions, he filed such pleading including a claim that defendant was estopped
from denying coverage.
[Headnote 1]
Respondent contends that no evidence of estoppel was admissible because estoppel was
not specifically pleaded in reply to the defense of no coverage. We may concede for the sake
of argument that such was the rule before the adoption of our rules of civil procedure.
However, under Rule 7(a) NRCP
1
no reply was required to enable plaintiff to contend that
the defendant company was estopped to deny coverage. Dixie-Vortex Co. v. Paper Container
Mfg. Co., 7 Cir., 130 F.2d 569, not only construing Rule 7(a), but also relying on Rule 8(d).
2
And the court's remark there made that the defendant knew of the claim of estoppel and
was not prejudiced is perhaps more applicable here than in the cited case.
____________________

1
Rule 7(a) There shall be a complaint and an answer; and there shall be a reply to a counterclalm
denominated as such; and answer to a closs-claim, if the answer contains a cross-claim; * * *. No other pleading
shall be allowed, except that the court may order a reply to an answer or a third-party answer.

2
Rule 8(d) Averments in a pleading to which a responsive pleading is required, other than those as to the
amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which
no responsive pleading is required or permitted shall be taken as denied or avoided.
73 Nev. 319, 323 (1957) Holden v. Truck Insurance Exchange
the court's remark there made that the defendant knew of the claim of estoppel and was not
prejudiced is perhaps more applicable here than in the cited case. On the day before the trial,
pretrial discussion was resumed and some 13 pages of the transcript are devoted to plaintiff's
presentation of argument, citation of authorities and recital of facts in support of his reliance
on estoppel to deny coverage. Mention of the possible necessity for a continuance was made
but the insurance company did not request one.
[Headnote 2]
At the trial plaintiff made an offer of proof substantially as follows: On July 2, 1952, when
plaintiff had three cabs, he went to one Antista, then the agent for Truck Insurance Exchange,
made application for complete insurance (fire, theft, public liability and property damage) on
one cab, and public liability and property damage insurance on the other two when his present
policies with Lloyds of London would expire on them September 1, 1952, and Antista said he
would do so. He received his policy and paid his bill thinking that he was covered. Antista
had authority to write such policy with insurance becoming effective at future dates. By
January 21, 1953 one Lanphear had succeeded Antista as agent for the company. Kimball
made application to Lanphear for complete coverage on his fleet of five cabs. After Kimball
received the policy of January 21, 1953, together with the premium statement, Kimball asked
Lanphear if the insurance covered all five cabs for public liability and property damage and
Lanphear said that it did. In the last part of February or the first of March, 1953, the fleet
having, as noted, been increased from three to five, Kimball called on Lanphear and asked
why the public liability and property damage premium for the last two cabs was greater than
the premium for the first three cabs. (The last premium bill paid by Kimball was $444.55.
The first bill on the three cabs was $189. Respondent points out that $189 is simply three
times $63, the public liability and property damage premium on each of the three units, Nos.
1, 4 and 5, and that $444.55 is simply the sum of $1S9, $19 for fire and theft, and $236.55
for collision.
73 Nev. 319, 324 (1957) Holden v. Truck Insurance Exchange
$444.55 is simply the sum of $189, $19 for fire and theft, and $236.55 for collision. While
this supports respondent's contention of lack of ambiguity, it does not address itself to the
question of estoppel.) Lanphear checked his file and said he didn't know but would find out.
Kimball asked if he was covered for public liability and property damage on all five cabs and
Lanphear said he was. Then Lanphear wrote Truck Insurance Exchange indicating that
Kimball thought all five cabs were insured against public liability and property damage and
asking to be advised. He wrote: On the original policy of three cars the charge for P L and P
D was $63.00, and on these two additional cars the charge was $126.00. * * * Please let me
know as soon as possible what the status is so that I may advise him. (Emphasis supplied.)
The company replied that the last two cabs (units 4 and 5) were so insured but only one of the
first three, but did not advise Kimball or instruct Lanphear to advise Kimball and Kimball
was never so advised. He thought he was covered and so purchased no additional insurance.
He paid all premium statements sent him.
We have not recited the offer in detail, but sufficiently to indicate why in our opinion it
should have gone to the jury on the issue of estoppel. McPhail v. Pacific Indemnity Co., 79
Cal.App.2d 675, 180 P.2d 735; United States Quarry Title Co. v. Massachusetts Bonding and
Insurance Co. (C.C.A. 6th Circuit), 71 F.2d 400. This being so, it was also error for the court
to grant defendant's motion for involuntary dismissal.
Other points raised by appellants do not require discussion. Reversed with costs and
remanded for further proceedings.
Eather and Merrill, JJ., concur.
____________
73 Nev. 325, 325 (1957) Carrigan v. Arbonies
MARY M. CARRIGAN, Appellant, v. WILLIAM
GEORGE ARBONIES, Respondent
No. 3991
December 9, 1957 318 P.2d 1109
Appeal from the Second Judicial District Court, Washoe County; Wm. D. Hatton,
Presiding Judge, Department No. 2.
Action for injuries sustained by plaintiff in automobile collision which occurred when
automobile driven by plaintiff's husband collided with defendant's automobile, the rear end of
which had slipped into gutter a few moments before, leaving front end of automobile
blocking about half of one lane of highway. From adverse judgment of the trial court, the
plaintiff appealed. The Supreme Court, Eather, J., held that whether defendant's failure to
give a warning constituted negligence was a question of fact for the jury.
Affirmed with costs.
(Rehearing denied January 2, 1958.)
J. Fred Haley, of Oakland, Calif., and Vargas, Dillon and Bartlett, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey and Thompson, of Reno, for Respondent.
Automobiles.
In action for injuries sustained by plaintiff in automobile collision which occurred when automobile
driven by plaintiff's husband collided with defendant's automobile, rear end of which slipped into gutter a
few moments before, leaving front end of automobile blocking about half of one lane of highway, whether
defendant's failure to give a warning constituted negligence was a question of fact for the jury. Rules of
Civil Procedure. Rule 49(b).
OPINION
By the Court, Eather, J.:
This is an appeal taken by the plaintiff below from judgment for the defendant pursuant to
jury verdict in an action for personal injuries resulting from an automobile collision.
73 Nev. 325, 326 (1957) Carrigan v. Arbonies
an action for personal injuries resulting from an automobile collision. The plaintiff's
contention is that the collision resulted from negligence on the part of the defendant. We refer
to the parties as they appeared in the court below.
Pursuant to Rule 49(b) NRCP interrogatories were submitted to the jury, answers to which
accompanied the general verdict. By answer to the first interrogatory the jury found that the
defendant was not guilty of negligence. Plaintiff first contends that there is no substantial
evidence to support this determination on the part of the jury.
From the testimony of the defendant the jury could have found the accident to have
occurred in the following manner:
On the evening of January 22, 1955, after dark, defendant was proceeding westward on the
Mt. Rose Highway to Lake Tahoe in Washoe County. In giving a wide berth to an
approaching car defendant's right rear tire left the pavement, sliding down the sloping
shoulder of the road to the gutter. The shoulder was snow covered although the pavement was
dry. Defendant was unable to bring the car back onto the pavement. In his efforts to do so the
car skidded into such a position that both rear tires were in the gutter and the car was faced
across the highway and perpendicular to it. The front of the car blocked about half of the
westbound lane of the highway, leaving the eastbound lane clear. For approximately three
minutes defendant attempted to extricate his car. At this point, plaintiff's car, driven by her
husband, topped a rise some 100 yards back down the highway. Defendant jumped from his
car, started towards its front with the intention of giving warning to the approaching car from
in front of his own headlights. Realizing he would not have time to do so he almost
immediately returned to his car. The impact occurred just after he had reentered it, plaintiff's
car striking defendant's car a glancing blow. Plaintiff was thrown from her car and sustained
serious injuries.
Defendant's car was facing in such a position that neither the headlights nor the taillights
were visible to an approaching westbound car.
73 Nev. 325, 327 (1957) Carrigan v. Arbonies
an approaching westbound car. Plaintiff contends that defendant was negligent in failing to
give warning that his car was partially blocking the highway. Warning could have been given,
plaintiff contends, by turning on the dome light in the car's interior and by walking back down
the highway to the top of the rise and flagging down the approaching car. Plaintiff contends
that defendant's failure to give warning was so clearly in violation of the standard of care of a
reasonably prudent man as to render his conduct negligence as a matter of law, and that a
contrary finding was not available to the jury under the facts.
Defendant contends that his first duty as a reasonably prudent man was to make every
effort to remove his car from the position of danger which it occupied; that he was still so
occupied at the time of the approach of the plaintiff's car; that at that point time did not permit
him to give warning although he attempted to do so in the only manner that occurred to him.
We are unable to say that the unfortunate circumstances of this case leave no room for
honest difference of opinion as to the reasonable and prudent course to pursue or as to the
standard of care to which the defendant must be held in the light of the urgency of the
situation. Defendant's conduct cannot, then, be held to constitute negligence as a matter of
law. Whether it constituted negligence remained for the jury to determine and its
determination will not be disturbed upon appeal.
Plaintiff has assigned as error the giving of certain instructions bearing upon the question
of whether plaintiff's husband was guilty of negligence and of whether defendant's conduct
was the proximate cause of the accident. In the light of our decision upon plaintiff's first
contention it is not necessary to deal with these questions. In the absence of negligence on the
part of the defendant they are of no significance.
Affirmed with costs.
Badt, C. J., and Merrill, J., concur.
____________
73 Nev. 328, 328 (1957) Gensler-Lee v. Geertson
GENSLER-LEE OF RENO, INC., Appellant, v. NIOMIA GEERTSON, FRITZE L.
COBLENTZ, KATE N. DODD, KATE N. DODD, As the Guardian of the Person and Estate
of RICHARD R. DODD, SOUTHWORTH COMPANY, CITY OF RENO, Respondents.
No. 4018
December 13, 1957 318 P.2d 1113
Appeal from Second Judicial District Court, Washoe County; Gordon W. Rice, Judge,
Department No. 3.
Action for personal injuries sustained by plaintiff when she tripped on an allegedly
defective steel sidewalk door. The trial court entered judgment for plaintiff against subtenant
of premises and it appealed. The Supreme Court, Badt, C. J., held that evidence presented a
question for the jury as to whether subtenant was negligent in permitting door in question to
be maintained in such a condition that an open-toed shoe could be caught on it.
Affirmed.
Vargas, Dillon and Bartlett, and Alex A. Garroway, of Reno, for Appellant.
Clel Georgetta, of Reno, for Niomia Geertson.
Woodburn, Forman, Wedge, Blakey and Thompson, of Reno, for Coblentz, Dodd and
Southworth Company.
Samuel B. Francovich, of Reno, for City of Reno.
1. Municipal Corporations.
In action for personal injuries sustained by plaintiff when she tripped on an allegedly defective steel
sidewalk door, evidence presented a question for the jury as to whether subtenant was negligent in
permitting door in question to be maintained in such a condition that an open-toed shoe could be caught on
it.
2. Appeal and Error; Landlord and Tenant.
Judgment entered against subtenant for injuries sustained by plaintiff as result of negligent maintenance
of certain doors, could be sustained without a verdict against sublessor and against owner of
premises, in view of fact that under sublease, subtenant was required to make all
repairs, and sublease further provided that subtenant should hold sublessor free from
liability for injury to any person on or about the premises, and, even if sublessor or
owner were liable, subtenant could not complain of fact they were absolved from
liability by jury, since under such circumstances there would be no right of
contribution among them.
73 Nev. 328, 329 (1957) Gensler-Lee v. Geertson
against owner of premises, in view of fact that under sublease, subtenant was required to make all repairs,
and sublease further provided that subtenant should hold sublessor free from liability for injury to any
person on or about the premises, and, even if sublessor or owner were liable, subtenant could not complain
of fact they were absolved from liability by jury, since under such circumstances there would be no right of
contribution among them.
3. Municipal Corporations.
In action for personal injuries sustained by plaintiff when she tripped on an allegedly defective steel
sidewalk door, trial court did not err in instructing that subtenant would not be liable for injuries sustained
by plaintiff because of unsafe condition of door where such condition existed at time lease was signed,
unless it also found subtenant caused condition to become worse, since negligence of subtenant in
maintaining the doors in an unsafe condition would not be excused by reason of fact that they were in that
condition when it leased the premises.
OPINION
By the Court, Badt, C. J.:
Respondent Niomia Geertson was injured from a fall when her shoe caught in the corner
of a defective closed steel basement door on the sidewalk in front of the abutting premises
known as 156 North Virginia Street in Reno. She sued the City of Reno, respondents
Coblentz and Dodd, the owners of the property, respondent Southworth Company as the
lessee and appellant Gensler-Lee of Reno, Inc., sublessee and occupant. The trial resulted in a
jury verdict in favor of Mrs. Geertson and against Gensler-Lee but in favor of the City, the
owner and the lessee of the premises. At the trial the City, the owner and the lessee joined
appellant in defending the action upon the ground that the defect in the cellar doors was so
minor in character as to give no basis for suit as a matter of law. Although they have not
changed their views in this respect, they ask affirmance of the judgment entered upon the
verdict absolving them and holding only Gensler-Lee, the sublessee and occupant of the
premises, as liable.
Gensler-Lee, the only appellant, contends for a reversal upon the ground (1) that the defect
in the door (or in the door frame) was minor; (2) that a verdict only against Gensler-Lee
cannot be sustained; and {3) that reversible error resulted from the trial court's refusal to
give a requested instruction to the effect that if the injury resulted from an unsafe
condition of the basement door Gensler-Lee would not be liable unless it caused the
door's condition to become worse after it acquired its sublease.
73 Nev. 328, 330 (1957) Gensler-Lee v. Geertson
against Gensler-Lee cannot be sustained; and (3) that reversible error resulted from the trial
court's refusal to give a requested instruction to the effect that if the injury resulted from an
unsafe condition of the basement door Gensler-Lee would not be liable unless it caused the
door's condition to become worse after it acquired its sublease.
[Headnote 1]
(1) Southworth Company's lease embraced a large building, of which the Gensler-Lee
subleased premises constituted a part. Southworth's lease had existed for many years. It had
never used the premises but subleased them to others. The basement to which the steel doors
gave access was part of the Gensler-Lee subleased premises. Neither Southworth nor
Gensler-Lee ever used the basement or the access through the steel doors, but Gensler-Lee
had the exclusive right of their use. Gensler-Lee's lease was dated September 15, 1949 and
was a renewal of an existing lease. The accident occurred March 14, 1956 during the period
of such renewal lease.
The steel doors were of the usual type of sidewalk doors opening upward and outward.
They were hinged to a one-eighth inch thick metal frame affixed to the cement sidewalk. One
corner of it had, apparently from much usage, become broken. Not only the frame itself but
the broken corner of the door, in the shape of two prongs that pointed outward and upward,
were elevated to a height above the sidewalk of from one-half to three-quarters of an inch.
Mrs. Geertson's open-toed shoe somehow became fastened or caught either under the frame
or under the defective corner of the door and she was thrown forward. It held my foot * * *
and it threw me * * * the frame around the cellar door had pulled loose from the pavement *
* * I believe three quarters of an inch * * * there was a crack in the corner of the door * * * It
had very sharp edges sticking up like a prong on it * * *. I examined the corner * * *. It was
high enough to go inside the toe of my shoe * * *. The sole would slip right in under the
grating, the frame."
73 Nev. 328, 331 (1957) Gensler-Lee v. Geertson
grating, the frame. Other witnesses testified approximately to the same effect.
Appellant cites numerous cases in which the defect in the sidewalk was held to be minor
or trivial as a matter of law and urges that under the theory of these cases denial of the motion
for summary judgment, denial of motion for judgment non obstante veredicto and denial of
motion for new trial all constituted error. The minor or negligible defect cases are legion. It
would serve no purpose to discuss them. The jury trying the present case were permitted to
examine what appear to be excellent photographs, and they also had a view of the premises,
as well as hearing and observing the several witnesses. A situation was undoubtedly
presented in which the minds of reasonable men might differ upon the standard of care
required under the circumstances and as to whether appellant's action in permitting the cellar
doors to be maintained in the condition described was negligence. Under such circumstances
it is not the function of this court either to interfere with the jury's verdict or to find error in
the court's denial of the motion for judgment for defendant Gensler-Lee notwithstanding the
verdict. Carrigan v. Arbonies, 73 Nev. 325, 318 P.2d 1109; Berrum v. Powalisz, 73 Nev. 291,
317 P.2d 1090.
[Headnote 2]
(2) In support of its assignment that a verdict only against Gensler-Lee cannot be sustained
without a verdict against its sublessor and against the owner of the premises, appellant asserts
That same evidence [of negligence] is present with respect to the owners and Southworth
Company. They were guilty if Gensler-Lee was guilty. Appellant then cites numerous cases
to the general effect that under the circumstances the sublessor or the owner would be guilty
of the negligence if any existed. Some of the cases cited hold that under particular
circumstances the negligence was that of the owner and not that of the lessee. Without
discussing the applicability of these cases we do not find them in point as to the error urged.
In the first place the sublease to Gensler-Lee required it to make all repairs to the premises
which might arise in connection with its use and occupancy thereof, and further provided
that the sublessee should hold the sublessor free from liability for injury to any person
upon or about the premises.
73 Nev. 328, 332 (1957) Gensler-Lee v. Geertson
Gensler-Lee required it to make all repairs to the premises which might arise in connection
with its use and occupancy thereof, and further provided that the sublessee should hold the
sublessor free from liability for injury to any person upon or about the premises. Such
sublease was admitted in evidence. In the second place it does not appear that Gensler-Lee is
aggrieved by that part of the jury's verdict which absolved its sublessor or the owner. If they
were joint tortfeasors with appellant, there would be no right of contribution among them. 18
C.J.S. 14, Contribution, 11. Mrs. Geertson might have sued any one of them without joining
the others.
[Headnote 3]
(3) Appellant assigns error in the court's refusal to give the following instruction: If you
find that plaintiff is entitled to a verdict because of an unsafe condition of the covering over
the basement opening and if you find that such condition existed on October 2, 1945 at the
time the lease was signed from Southworth Company to Gensler-Lee of Reno, Inc., then
Gensler-Lee would not be liable unless you also find that it caused the condition to become
worse. The court properly refused the instruction as not setting forth the law. The negligence
of Gensler-Lee as sublessee, the occupant of the premises, in maintaining the doors in an
unsafe condition would not be excused by reason of the fact that they were in that condition
when it leased the premises. No authorities are cited in support of a contrary conclusion.
As a matter of fact the following instruction was given without any objection by any of the
parties:
While there are six defendants in this action, it does not follow from that fact alone that if
one is liable, all are liable. Each is entitled to a fair consideration of his or its own defense
and is not to be prejudiced by the fact, if it should become a fact, that you find against
another. The instructions given you govern the case as to each defendant, to the same effect as
if he (or it) were the only defendant in the action, and regardless of whether reference is made
to defendant or defendants in the singular or plural form.
73 Nev. 328, 333 (1957) Gensler-Lee v. Geertson
the singular or plural form. The giving of this instruction is not assigned as error. It should be
added also that although there is evidence to the contrary, there is in the record evidence from
which the jury could have concluded that the dangerous condition of the doors did not exist at
the time of the renewal of the lease in 1945.
There being no error, the judgment is affirmed.
Eather and Merrill, JJ., concur.
____________
73 Nev. 333, 333 (1957) Gravelle v. Burchett
WILLIAM H. GRAVELLE, dba Sellman & Gravelle, Appellant, v. DOLORES M.
BURCHETT, dba Modern Appliance Co., Respondent.
WILLIAM H. GRAVELLE, dba Sellman & Gravelle, Appellant, v. SILVER STATE
APPLIANCE COMPANY, a Corporation, Respondents.
No. 3933
December 16, 1957 319 P.2d 140
Appeal from the Second Judicial District Court, Washoe County; Taylor H. Wines,
Presiding Judge, Department No. 1.
Suit for specific performance of an agreement by which the plaintiff assigned a master
lease to defendant in consideration of his sublease of the described area rent free to one of the
plaintiffs. Judgment for plaintiff in the trial court and the defendant appeals. The Supreme
Court, Badt, C. J., held that there was a complete meeting of the minds of the parties on the
agreement involved; that proof of partial performance made the application of the statute of
frauds inapplicable; and that plaintiffs were not barred from relief on the ground of unclean
hands.
Affirmed.
F. R. Breen, of Reno, for Appellant.
73 Nev. 333, 334 (1957) Gravelle v. Burchett
Guild, Busey and Guild, of Reno, for Respondent and Respondents.
1. Evidence.
Where the writing on its face is obviously incomplete parol evidence rule permits the admission of
evidence not inconsistent with the writing to supply that portion of the agreement not reduced to writing.
2. Frauds, Statute of.
A parol agreement must be clearly expressed in order that part performance take the case out of statute of
frauds.
3. Landlord and Tenant.
In suit for specific performance of an agreement by which plaintiffs assigned a master lease to defendant
in consideration of his sublease of a described area rent free and for damages for alleged unlawful ouster of
the sublessee, substantial evidence supported conclusion that the minds of the parties had met as to all
provisions of the sublease.
4. Frauds, Statute of.
Where master lease was allegedly assigned to defendant in consideration of his sublease of a described
area rent free to sublessee, proof of the oral agreement and proof of partial performance by plaintiffs
thereunder and of partial performance by the defendant, rendered the statute of frauds inapplicable.
5. Equity.
Alleged fact that assignment of a master lease to defendant in consideration of his sublease of described
area rent free to sublessee was part of an attempted conspiracy allegedly to defraud creditors in connection
with bankruptcy proceeding in which party through whom corporation acted was involved was not
available as a defense to defendant under the doctrine of unclean hands in suit for specific performance
of the agreement, where the alleged inequitable conduct was not connected with the matter in litigation.
OPINION
By the Court, Badt, C. J.:
This appeal by William H. Gravelle is taken from a judgment rendered against him in
favor of Dolores M. Burchett in the sum of $2,119.43 and in favor of Silver State Appliance
Company, a corporation, in the sum of $2,141.65 in two separate actions commenced by the
respective plaintiffs named but which were consolidated for trial. From the rather
complicated facts appearing in some 900 pages of proceedings and testimony we may note
the salient facts as follows: Plaintiff corporation was assignee of a lease of certain
premises in Reno, and desired to reduce its rental obligations by disposing of a portion of
rented floor space.
73 Nev. 333, 335 (1957) Gravelle v. Burchett
Plaintiff corporation was assignee of a lease of certain premises in Reno, and desired to
reduce its rental obligations by disposing of a portion of rented floor space. An agreement
was consequently entered with defendant Gravelle, whereby plaintiff would for consideration
assign its interest in the lease, which had four and one half years to run, to Gravelle, with
sublease back to plaintiff of a certain portion of the premises. A memorandum was signed as
follows:
SELLMAN & GRAVELLE
1445-49 E. Fourth St.
Reno, Nevada
Phone 6214
3/11950
Received of Sellman & Gravelle Twenty DollarsTo bind lease on 1049 So. Va.Rent to
start March 13, 1950. Payable $750.00. Deposit first and last 2 mo.on lease. Rental to be
$250.00 per mo. Map attached for sub lease 17 x 31 for sales and display Room and office
Silver State Appliance Co.
(Seal)
F. C. Burchett,
Vice-Pres.
Accepted: Sellman & Gravelle
Wm. H. Gravelle
An agreement was simultaneously reached between the plaintiff corporation and plaintiff
Dolores Burchett, whereby the latter would continue to finance plaintiff corporation's
business and maintain a kitchen display in return for the use of a certain portion of plaintiff
corporation's subleased space without charge to Dolores Burchett.
The lease was duly assigned by plaintiff corporation to defendant, and accepted by
defendant, who made payments to plaintiff corporation for items of advance rental and fuel
oil in the tank on the premises, as contemplated by the parties. It was agreed by all parties that
Dolores Burchett, rather than plaintiff corporation, should be the sublessee from defendant.
An executed sublease was presented to Dolores Burchett, which she refused to sign because
the terms indicated that her right was to maintain the floor space subleased for "display
purposes only", whereas her concept of the agreement was that she should be entitled to
make sales on the premises, though she would not be entitled to maintain a "permanent
sales force".
73 Nev. 333, 336 (1957) Gravelle v. Burchett
refused to sign because the terms indicated that her right was to maintain the floor space
subleased for display purposes only, whereas her concept of the agreement was that she
should be entitled to make sales on the premises, though she would not be entitled to
maintain a permanent sales force. This first draft of sublease was drawn by attorney Sidney
Robinson. Therefore, Dolores Burchett had prepared by attorney Bruce Thompson another
sublease agreement incorporating this provision, which she signed, but which defendant
refused to sign. Subsequently a meeting was held by the parties in which all items of
disagreement were resolved, except that of what commission would be received by defendant
for sales by him or his employees from Dolores Burchett's display. This was expressly
reserved for further bargaining. When the agreement was reduced to writing, Dolores
Burchett signed it but defendant refused to do so, which refusal must under the circumstances
be considered arbitrary.
Subsequently, the parties performed according to the agreement, though no sublease had
been signed by both parties. Both parties took possession of their respective parts of the
premises, spent material sums in improving the same, and joined in advertising their opening
for business, and defendant's employees made sales of merchandise from the display of
Dolores Burchett, for which she paid 15 percent commission on all such sales to defendant,
who accepted such payments. Dolores Burchett also made sales from her display room in
accordance with the oral agreement.
Thereafter defendant made a demand upon Dolores Burchett for rent. This was contrary to
the oral agreement which was, in effect, that Dolores Burchett and plaintiff corporation
should have the designated portion of the premises rent-free in consideration of the
assignment by plaintiff corporation of the lease to defendant, and defendant's privilege of
making sales and receiving commission thereon from the stock of Dolores Burchett.
Defendant next asserted that the use by Dolores Burchett of the premises was permissive
only, and demanded that she vacate. She did not pay the rent nor did she vacate.
73 Nev. 333, 337 (1957) Gravelle v. Burchett
vacate. Defendant then began encroaching on the floor space which had been set aside for use
by Dolores Burchett and plaintiff corporation by stacking linoleum and other materials
thereon. Defendant also brought in lines of appliances to sell in competition with those of
Dolores Burchett and plaintiff corporation. Mr. and Mrs. Burchett then went on vacation for a
month, and returned to find loss of and damage to certain stock, which was attributed by the
trial court to defendant.
Judgment was therefore given for plaintiff corporation and Dolores Burchett for damage
suffered by the ouster, including cost of improvements, reasonable rental value, loss of
profits, and injury to stock.
Although the facts appear somewhat complex, the main issue finally emerges as a rather
simple one.
As a matter of fact, in appellant's opening brief the main point urged is that the district
court erred in failing to make a finding of fact on the real material issue in the case, which
material issue was whether or not the proposed sublease drawn by Sidney Robinson contained
the terms and provisions of the agreement reached between the defendant and plaintiff
corporation acting through Freeman Burchett. Appellant then emphasizes his contention that
the real major issue between plaintiffs and defendant concerned the maintenance of a
permanent sales force by the plaintiffs on the subleased premises, and whether or not
Freeman Burchett and Mrs. Burchett would constitute an exception to the agreement that no
permanent sales force would be maintained on the premises. He further emphasized his
contention that whether or not the language as set forth in the Robinson draft correctly
represented the agreement was the major issue in this dispute. It is again emphasized that the
specific and concrete issue of the dispute was whether or not Freeman Burchett and Mrs.
Burchett would be an exception to the rule against the maintenance of a permanent sales
force. Appellant goes on to say although this was the crux of the case the findings of fact in
the opinion of the district court are entirely silent on this vital issue.
73 Nev. 333, 338 (1957) Gravelle v. Burchett
[Headnotes 1-3]
It will thus be observed that the main issue of the case, as recited by appellant, is the
question as to whether or not the lease as drawn by Mr. Robinson correctly recited what was
the agreement of the parties. In other words, it is expressly the view of the appellant that
there was an agreement between the parties and, necessarily, that the main function of the
court in resolving this dispute between the parties was the determination of what that
agreement was. The only possible agreement referred to by appellant is an oral agreement
between the parties. The court did indeed refer to this same question as being the main issue
in dispute and one that arose at an early stage of the proceedings when the parties were
attempting to formalize their agreement in a written sublease. The court, however, resolves
this by referring to appellant's contention that it was the agreement as recited in the proposed
sublease by Mr. Robinson that correctly recited it. It found, however, that it was a later
agreement of the parties that was the real agreement between them and that it was such later
agreement that was honored by performance. These are the words of the court. We thus find
that both plaintiff and respondent are in accord as to one proposition. There was an oral
agreement arrived at between the parties. Appellant draws from the facts in the case the
conclusion that the agreement as recited by appellant was the true agreement reached.
Respondents take the position that the agreement as maintained by them was the true
agreement reached. We combine the treatment, then, of this main issue in the case with the
further assignment made by appellant in connection therewith that the court made no finding
on this issue. With this we do not agree. We think that implicit in the court's findings and in
its conclusions and judgment is the finding that there was in existence and in legal effect a
sublease from defendant to Mrs. Burchett. The court held that defendant did not assign any
violation of the sublease as justification for encroaching on Mrs. Burchett's premises. We
have then a finding that there was a sublease. The court says further, It is apparent enough
that the defendant refused to perform his agreement with the plaintiff".
73 Nev. 333, 339 (1957) Gravelle v. Burchett
enough that the defendant refused to perform his agreement with the plaintiff. Such
statement would be entirely without meaning unless we accord to it and as implicit in it the
finding that there was an agreement between the defendant and plaintiffs. The court further
said, It is apparent enough that defendant repudiated his obligations to both or either of the
plaintiffs. Implicit in this again is the finding that there were obligations from the defendant
to both of the plaintiffs. Such obligations referred to by the court and such agreement referred
to by the court and sublease referred to by the court can have no other meaning than that there
was in existence a sublease, an agreement expressing in it the obligations of the defendant.
We are reinforced in this conclusion by the court's reliance on the rule that where the writing
on its face is obviously incomplete, the parol evidence rule permits the admission of evidence
not inconsistent with the writing to supply that portion of the agreement not reduced to
writing, and the further rule enunciated in Evans v. Lee, 12 Nev. 393, that the parol
agreement must be clearly expressed in order that part performance take the case out of the
statute. The trial court's reliance on such rules, and its implied finding that a sublease was in
effect, lead us to the record to ascertain whether there is substantial support for a conclusion
that the minds of the parties met as to all of the provisions of the sublease, particularly those
in dispute.
We may for the moment ignore the testimony of the parties to the dispute and turn to the
testimony of Mr. Bruce Thompson. This is his testimony of the meeting held in the office of
Mr. Robinson after it appeared that neither the first draft of the sublease drawn by Mr.
Robinson nor the first draft of the sublease drawn by Mr. Bruce Thompson was satisfactory to
all of the parties. A meeting was called for the purpose of resolving their differences. At this
meeting Mr. Thompson took notes and from his notes and from his recollection he recited
what took place at that meeting. He checked off one by one each item in dispute and recited
that it was agreed in that respect as follows, and then by reason of his notes and by reason
of his recollection he recited what that agreement was.
73 Nev. 333, 340 (1957) Gravelle v. Burchett
by reason of his notes and by reason of his recollection he recited what that agreement was.
These recitals left no matters in dispute as to the agreement of the parties. Appellant contends
that this cannot be the case because Mrs. Burchett was not present at that meeting. However,
the second draft of sublease as drawn by Mr. Thompson following that meeting and
incorporating all of the items agreed upon by the parties as testified to by Mr. Thompson was
subsequently signed by Mrs. Burchett. We have then a complete meeting of the minds of all
the parties involved.
Appellant maintains that the matter of commissions on sales to be allowed to Mr. Gravelle
was the main consideration for his agreement to execute a sublease. However, Mr.
Thompson's testimony on this point is likewise clear and convincing. He states that this was
discussed by the parties but they agreed that it was to be the subject of a later agreement.
Such also was the finding of the court.
[Headnote 4]
Appellant assigns error in the court's rejection of his contention that each of the causes of
action pleaded by the respective plaintiffs was barred by the statute of frauds. Each of the
respective plaintiffs alleged the assignment of the master lease to Gravelle in consideration of
his sublease of the described area rent free, the possession of the premises taken by the
respective parties and an unlawful ouster of each of the plaintiffs by Gravelle resulting in
specified damages. Each sought specific performance. The trial court held that part of the
agreement between the parties was expressed in the executed memorandum of March 1,
1950; that this was not the entire agreement; that the rest of the agreement was expressed
orally as hereinabove discussed; that part performance of the oral agreement took the case out
of the statute; Bailey v. Butner, 64 Nev. 1, 176 P.2d 226; that the oral contract was clearly
and definitely established in accordance with the standards laid down in Evans v. Lee, 12
Nev. 393, 398. See also Roberts v. Hummel, 69 Nev. 154, 243 P.2d 248, and Nehls v. Stock
Farming Co., 43 Nev. 253, 184 P. 212, 185 P. 563. Under the facts as specifically found by
the court and the inferences reasonably to be drawn therefrom, the principles laid down
in these cases are clearly applicable.
73 Nev. 333, 341 (1957) Gravelle v. Burchett
facts as specifically found by the court and the inferences reasonably to be drawn therefrom,
the principles laid down in these cases are clearly applicable. The proof of the oral agreement
and the proof of partial, if not complete, performance by the plaintiffs thereunder and of the
partial performance by the defendant amply justified the application of the rule.
[Headnote 5]
Appellant further contends that the district court erred in striking from his answer the
equitable defense based upon the ground of unclean hands. The answer in this respect
alleged that at the time of the original agreement of March 1, 1950, between plaintiff
corporation, acting through Freeman Burchett and defendant, Freeman Burchett was in
voluntary bankruptcy and that his connection with plaintiff corporation was being
investigated to determine whether or not the assets of plaintiff corporation were in fact assets
of the said Freeman Burchett; that the assignment from the plaintiff corporation to Mrs.
Burchett was part of an attempted conspiracy to defraud creditors in connection with the
bankruptcy proceedings in which Freeman Burchett was involved. Appellant contends that he
never had the opportunity to prove whether or not this was true. It appears, however, that the
bankruptcy proceedings were terminated some two or three years prior to the pretrial
conference in April 1954 in which the trial court ordered the defense stricken. If there had
been any determination that the assets of the plaintiff corporation or any part of them were in
fact assets of Freeman Burchett, this certainly would have appeared in the bankruptcy
proceedings. The trial court interpreted this particular defense as being offered as a
justification of the defendant's refusal to deal further or negotiate further with the plaintiffs.
The learned trial judge based his order striking the defense upon the ground that the
misconduct complained of must be in regard to or in any event connected with the matter in
litigation so that it has in some manner affected the equitable relations subsisting between the
parties and arising out of the transaction. The court held that there had been no injury to the
defendant by the alleged misconduct, even assuming it to be true, that it did not affect
the relations between the parties; that it in no way involved the subject matter of the
action.
73 Nev. 333, 342 (1957) Gravelle v. Burchett
the defendant by the alleged misconduct, even assuming it to be true, that it did not affect the
relations between the parties; that it in no way involved the subject matter of the action. No
extended discussion of this assignment of error is necessary. The alleged inequitable conduct
of Freeman Burchett relied upon by defendant was not connected with the matter in litigation.
Under such circumstances it was not available as a defense to the defendant under the
doctrine of unclean hands. Pomeroy's Equity Jurisprudence, 5th Ed., Vol. 2, p. 94 399;
Annotation 4 A.L.R. 44; 30 C.J.S. 493, Equity, 98.
Numerous errors are assigned in overruling the objections of appellant to the introduction
of sundry exhibits, in the overruling of objections to questions on the ground that the same
were leading, in failing to rule on sundry motions concerning the pleadings, in deciding the
case before receipt of the defendant's brief, in failing to rule on defendant's motion to retax
costs and, finally, in rendering judgment not supported by the court's conclusions of law and
findings of fact or by the evidence. We have given consideration to all of these assignments
and to those portions of appellant's brief devoted thereto and to those parts of the oral
argument touching upon the same, but find no prejudicial error in any of these assignments or
other points advanced by appellant.
Affirmed with costs.
Eather and Merrill, JJ., concur.
____________
73 Nev. 343, 343 (1957) Sollars v. State
DALE EUGENE SOLLARS, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 3953
December 19, 1957 319 P.2d 139
Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Defendant was convicted of murder in the trial court and he appealed. Judgment of
conviction was reversed and remanded for a new trial in 73 Nev. 248, 316 P.2d 917 and the
State filed a petition for a rehearing. The Supreme Court, Merrill, J., held that the subject of
prejudice from newspaper coverage at the murder trial was a proper subject of a motion for
new trial, and that a motion for a mistrial was not a necessary prerequisite and that affidavits
of jurors should be stricken as not a proper part of the record.
On motion to strike, motion granted.
On petition for rehearing, petition denied.
John W. Bonner, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City; and George M. Dickerson, District
Attorney, Clark County, for Respondent.
1. Criminal Law.
No prejudice could result or be presumed from separation of jury in a murder prosecution in the absence
of a communication.
2. Criminal Law.
Fact of communication to a jury which has been permitted to separate should be brought to the attention
of the trial court through appropriate motion for relief.
3. Criminal Law.
In murder prosecution, where prejudice resulted from the action of the trial court upon the ground of
prejudicial newspaper coverage at the trial, it was a proper subject of motion for new trial, and a motion for
mistrial was not a necessary prerequisite.
4. Criminal Law.
In murder prosecution, affidavits of jurors that they regarded the admonition of the trial court as one not
to read or scan any newspaper or to listen to or observe any newscasts should be stricken as not a proper
part of the record on appeal before the Supreme Court.
73 Nev. 343, 344 (1957) Sollars v. State
OPINION
By the Court, Merrill, J.:
The State has filed petition for rehearing, specifying six points upon which rehearing is
requested. In no respect do we feel rehearing to be justified.
In one respect, however, the petition indicates the need for a clarification of our opinion.
We stated, Upon this ground of appeal we conclude that it was abuse of discretion to permit
separation of the jury over objection of the defendant under the admonition given.
Communication (and consequent prejudice) having been established we conclude that the
abuse of discretion demands reversal. [73 Nev. 260.]
Upon this point we had held that an inference of communication had been raised under the
circumstances of the case and further stated, If such was not the fact the State could well
have overcome the inference by proof. We gave no indication, however, of when or how
such proof might be presented.
[Headnotes 1-3]
Our opinion reflects our view that the granting of separation alone would not warrant
reversal. No prejudice could result or be presumed from separation in the absence of
communication. The fact of communication should, then, be brought to the attention of the
trial court through appropriate motion for relief. In the instant case a motion for new trial was
made upon the ground of prejudicial newspaper coverage of the trial. Copies of news articles
were offered in support of the motion. The motion was denied. Since prejudice resulted from
action of the trial court asserted to be erroneous, it was a proper subject of motion for new
trial. Motion for mistrial was not a necessary prerequisite.
[Headnote 4]
The State has attached to its petition for rehearing affidavits of the jurors respecting the
questions of communication and prejudice. While these affidavits do, in some cases, show
that the jurors regarded the admonition of the trial court as one not to read or scan any
newspaper or to listen to or observe any newscasts, still they do not, in each instance,
completely negative communication.
73 Nev. 343, 345 (1957) Sollars v. State
they do not, in each instance, completely negative communication. Unquestionably they show
a uniformly conscientious attitude on the part of the jury and a belief that prejudice did not
result from separation. This is matter which should have had the attention of the trial court on
motion for new trial. If communication or prejudice are to be held disproved it must be by
factual judgment of the trial court and not by the original determination of this court on
appeal. Appellant has moved that the affidavits be stricken as not a proper part of the record
before this court. The motion must be granted. Campbell v. Baskin, 68 Nev. 469, 235 P.2d
729.
It is ordered that the affidavits attached to the petition for rehearing be stricken. Rehearing
is denied.
Badt, C. J., and Eather, J., concur.
____________
73 Nev. 345, 345 (1957) Coleman v. Thompson
RONALD COLEMAN, Chief Building Inspector of the City of Reno, County of Washoe,
State of Nevada, Appellant, v. JOHN THOMPSON, Respondent.
No. 4067
December 19, 1957 319 P.2d 541
Appeal from the Second Judicial District Court, Washoe County; Gordon W. Rice, Judge,
Department No. 3.
Proceeding on motion to dismiss appeal from judgment of the trial court. The Supreme
Court held that honest, though mistaken, belief by appellant in existence of agreement that
steps looking toward settlement were regarded by both parties as desirable prelude to
proceeding with appeal did not justify appellant's failure to timely file opening brief, did not
constitute good cause for relief from such neglect, and appeal could not be maintained.
On motion to dismiss appeal, appeal dismissed.
73 Nev. 345, 346 (1957) Coleman v. Thompson
Samuel B. Francovich, City Attorney, Bruce D. Roberts and Roy E. Torvenin, Assistant
City Attorneys, all of Reno, for Appellant.
Grubic, Drendel and Bradley, of Reno, for Respondent.
1. Appeal and Error.
Efforts toward settlement do not justify delay in filing appeal in absence of agreement between all parties
that such efforts are worth the delay, and a mistaken, although honest, belief that such agreement exists
cannot constitute equivalent of such an agreement. Supreme Court Rules, Rule 11, par. 7.
2. Appeal and Error.
Honest, though mistaken, belief by appellant in existence of agreement that steps looking toward
settlement were regarded by both parties as desirable prelude to proceeding with appeal did not justify
failure to timely file opening brief or constitute good cause for relief from such neglect, and appeal could
not be maintained. Supreme Court Rules, Rule 11, par. 7.
3. Stipulations.
A party failing in procedural performance must accept burden of establishing a clear understanding
between parties in justification of such failure.
OPINION
Per Curiam:
This case is before us on motion of respondent to dismiss the appeal of appellant for
failure to file opening brief within the time prescribed by rule. That time expired October 14,
1957. Neither stipulation nor court order granting additional time was sought by appellant.
Motion to dismiss was filed December 9, 1957 and was submitted December 11, 1957. The
judgment from which this appeal is taken was entered May 31, 1957, pursuant to the district
judge's decision announced some months prior thereto.
Appellant's explanation for this extraordinary lapse of time is that the City of Reno has
been seeking settlement of the dispute and that the parties to this matter have been engaged in
negotiations throughout the major portion of the time involved. He explains that such
negotiations required consideration by the city council of the city of Reno and that such
consideration necessarily involves more time than would be necessary in the case of an
individual party.
73 Nev. 345, 347 (1957) Coleman v. Thompson
council of the city of Reno and that such consideration necessarily involves more time than
would be necessary in the case of an individual party. Respondent denies that there was any
course of negotiations. He asserts that an offer of settlement had been made by him prior to
judgment below, which offer had remained open, but from which he had not deviated in any
counter proposal. He asserts that the negotiations to which appellant refers were nothing
more than a series of offers by the city which he had rejected.
There can be no doubt of the sincerity of the belief of counsel for appellant that steps
looking toward settlement were regarded by both parties as a desirable prelude to proceeding
with this appeal. Nor can there be any doubt of the sincerity of respondent in asserting that in
this respect appellant was mistaken in his belief and that respondent had no interest in further
proposals of the city which did not meet the terms of his offer. We are thus faced with
procedural neglect resulting from an honest misunderstanding. Our question upon this motion
is whether such misunderstanding may be held to constitute good cause for relief from such
neglect. In our view it may not.
In McCleary Timber Company v. Sewell, 72 Nev. 7, 292 P.2d 197, this court in January
1956 had occasion to refer to delays in briefing matters pending before this court. We there
stated, This court has had occasion recently to express to the members of the bar its concern
with the delays in briefing which have become almost a matter of standard practice. In this
respect it is anticipated that Rule XI, Paragraph 7, of the rules of this court will shortly be
amended. While the motion to dismiss for delay in briefing was not granted in that case we
expressly stated that the denial was Notwithstanding our general feeling in this regard and
with no intent to establish precedent as to practice under any amendment to Rule XI which
may be had. Rule XI, Paragraph 7, was amended June 1, 1956 to require that all extensions
of time in briefing beyond 60 days be by court order upon application showing good cause.
73 Nev. 345, 348 (1957) Coleman v. Thompson
[Headnotes 1-3]
Such circumstances as efforts towards settlement cannot justify delay in the absence of
agreement between all parties that such efforts are worth the delay. A mistaken, although
honest, belief that such agreement exists cannot constitute the equivalent of such an
agreement. This would but serve to encourage misunderstanding in such matters. Reliance
upon unconfirmed belief, then, cannot be held sufficient justification. A party failing in
procedural performance must accept the burden of establishing a clear understanding in
justification of such failure.
Appeal dismissed.
____________
73 Nev. 348, 348 (1957) Provenzano v. Clark County
BERNARD V. PROVENZANO, Appellant, v. COUNTY OF CLARK,
a Political Subdivision of the State of Nevada; HARLEY E. HARMON,
GEORGE H. ALBRIGHT, and RODNEY A. COLTON, Constituting Said Board
of County Commissioners, Respondents.
No. 3990
December 24, 1957 319 P.2d 855
Appeal from judgment of the Eighth Judicial District Court, Clark County; Frank
McNamee, Judge, Department No. 1.
Action by taxpayer to quiet title to property which had been sold for delinquent taxes. The
trial court rendered judgment for county, and taxpayer appealed. The Supreme Court, Badt, C.
J., held that where actual description of tract within Las Vegas city limits was a metes and
bounds description approximately 300 words in length, description of tract as Part SW1/4
Sec. 35-20-61 .86A District L.V. City Limits, and reciting taxpayer's name as taxpayer and
his wife, from whom he was divorced, was insufficient to support tax proceedings
culminating in deed to county on account of delinquent taxes, especially in view of fact
that there was nothing to suggest that taxpayer had furnished description that was used
by assessor or county treasurer.
73 Nev. 348, 349 (1957) Provenzano v. Clark County
was divorced, was insufficient to support tax proceedings culminating in deed to county on
account of delinquent taxes, especially in view of fact that there was nothing to suggest that
taxpayer had furnished description that was used by assessor or county treasurer.
Reversed.
Zenoff, Magleby & Manzonie, of Las Vegas, for Appellant.
George M. Dickerson, District Attorney, Clark County, for Respondents.
1. Taxation.
A tax sale, to be valid, must contain an adequate description of property through all stages of the
proceedings.
2. Taxation.
Where actual description of tract within Las Vegas city limits was a metes and bounds description
approximately 300 words in length, description of tract as Part SW1/4 Sec. 35-20-61 .86A District L.V.
City Limits, and reciting taxpayer's name as taxpayer and his wife, from whom he was divorced, was
insufficient to support tax sale proceedings culminating in deed to county on account of delinquent taxes,
especially in view of fact that there was nothing to suggest that taxpayer had furnished description that was
used by assessor or county treasurer.
3. Taxation.
Where taxpayer brought action to quiet title to property which had been sold for delinquent taxes,
accompanied by tender to pay all taxes, interest and penalties against property, and county's answer
asserted no defenses other than delinquent tax deed, which was invalid, taxpayer was entitled to judgment
quieting title as prayed, but judgment in favor of county against taxpayer would be entered for amount of
accrued taxes, interest and penalties against property.
OPINION
By the Court, Badt, C. J.:
Is the following description of a tract of land within the city limits of Las Vegas, Clark
County, Nevada, sufficient to support tax proceedings culminating in a deed to Clark County
on account of delinquent taxes: Part SW 1/4 Sec 35-20-61 .86A District L. V. City Limits,
reciting further the taxpayer's name as "Provenzano, Bernard V. and Pearl V.,
73 Nev. 348, 350 (1957) Provenzano v. Clark County
reciting further the taxpayer's name as Provenzano, Bernard V. and Pearl V., Box 934, Las
Vegas, Nevada?
We hold that it is not.
The actual description of the property is a metes and bounds description approximately
300 words in length, describing an irregular tract 200 feet by 125 feet by 300 feet by 125 feet,
paralleling on one side the north line of Fremont Street and on one side the east line of
Fifteenth Street and locating the property in the NE 1/4 of the SW 1/4 of Section 35,
Township 20 S., Range 61 E., M.D.B. & M.
[Headnote 1]
The learned trial judge and counsel for the respondents both recognize the rule that a tax
sale, to be valid, must contain an adequate description of the property through all stages of the
proceedings. Jackson v. Harris, 64 Nev. 339, 183 P.2d 161, 168. Respondents dispose of that
case because of this court's statement in the opinion that: Each case presents, of course, a
distinct fact situation, and each separate description must be considered to determine its
sufficiency. That statement was made following our quotation of the general rule appearing
at 67 A.L.R. 890, which considered well over a hundred cases in which tax sales were held
to be void for insufficiency of the description in the notice of sale. The rule we there quoted
was: The general rule is that the description of property in a notice of tax sale must be
sufficiently definite and certain to make the land attempted to be described capable of
identification, and an insufficient description in such a notice will render the tax-sale
certificate and the tax deed based thereon void. Id. 64 Nev. 353, 183 P.2d 168. The
statement that each separate description must be considered to determine its sufficiency
strengthens rather than weakens the force of Jackson v. Harris as authority when, as below
demonstrated, the description there involved was even more adequate than the one in
question here.
Respondents also attempt to support the position of the court below, which, in disposing of
Jackson v. Harris, was of the opinion that the rule of that case should not be extended to
cover the situation presented by the present case where the description of the property
could not and did not mislead the owner as to what property was involved".
73 Nev. 348, 351 (1957) Provenzano v. Clark County
not be extended to cover the situation presented by the present case where the description of
the property could not and did not mislead the owner as to what property was involved. This,
it is true, amounted to a finding of fact rejecting the explanation made by appellant that he
believed from the description given by the county officials that the parcel in question was a
parcel of land formerly owned by his former wife, from whom he was divorced in 1950, and
whose property was described by legal subdivisions.
[Headnote 2]
Neither of the above contentions can remove Jackson v. Harris from its control of the
instant case. It is true that several of the general rules for determining the sufficiency of the
description as used by the courts and the text writers refer to descriptions that do not
positively mislead the taxpayer or are not calculated to mislead him or descriptions which
identify the particular property so clearly that the owner cannot be misled. In referring to
those rules in Jackson v. Harris we referred to many other statements of the rule to be
followed. We did not adopt any of them. We called attention to the fact that many of such
rules were stated far more broadly than warranted by the facts in the cases in which they were
applied. We did find that the description used in the assessment roll in Jackson v. Harris,
Filling Station Lot, 300 feet, Value $450.00, Improvements $150.00, and the description
used in the tax deed to the county, T. R. Harris Filling Station Lot 300 feet $450.00; Imp.
$150.00; four gas pumps $400.00; Mach. $50.00, both indicating that they were in the town
of Fernley, were insufficient. The description of the Provenzano property was even more
inadequate. A lot not fully described could probably be more easily identified in a city the
size of Fernley than in a city the size of Las Vegas. At least one dimension was recited. At
least the name of the owner was included in the description. It was at least described as a
filling station. It was at least indicated that it was a town lot. Here we have a reference to .86
acres in a 160-acre tract. The description is so manifestly insufficient and inadequate that we
find it impossible to conclude that it can support the delinquent tax sale.
73 Nev. 348, 352 (1957) Provenzano v. Clark County
that we find it impossible to conclude that it can support the delinquent tax sale. If the
argument supporting the sufficiency of this description on the ground that the taxpayer could
not have been misled is valid, the same argument would support a description if it identified
the parcel as being Part of Section 35 in place of Part of SW 1/4, Section 35.
In Jackson v. Harris we said: We agree with the often-stated rule that the purpose of the
requirement for a description is, first, to give the necessary information or notice of the tax
assessed against the particular parcel, to the taxpayer himself; second, that the public may
know what property is liable for the tax and is to be sold in case of nonpayment; and third,
that the purchaser may obtain an adequate conveyance. To nullify the accomplishment of
these purposes by something in the way of an estoppel would seem to us to do violence to our
holding in Jackson v. Harris and to the cases relied upon in the opinion in that case. Those
cases which lean toward the rule that a description is sufficient if it identifies the property so
clearly that the owner cannot be misled do so because it supports the conclusion that the
description is sufficientnot because the owner is estopped from asserting that he has been
misled. It is true that estoppel has been applied in cases where the tax officials used the
precise description furnished them by the owner, though even in such situation the majority
rule is said to be contra. Power v. Bowdle, 3 N.D. 107, 54 N.W. 404, 21 L.R.A. 328, 44
Am.St.Rep. 511. In the instant case there is nothing to suggest that Provenzano furnished the
description that was used by the assessor or the county treasurer.
Many cases are cited by appellant in which descriptions more adequate than that here
involved were held insufficient. Cases are cited by respondents in which descriptions less
adequate were held to be sufficient. Each party seeks to distinguish the opposing cases thus
cited. They do not require discussion. Reconcilement of all the cases is impossible. It is also
unnecessary, as we feel that Jackson v. Harris is controlling. We must hold that the
inadequacy of the description invalidated the tax proceedings.
73 Nev. 348, 353 (1957) Provenzano v. Clark County
that the inadequacy of the description invalidated the tax proceedings. The statutory
requirement for a description of the property in the advertisement for sale, in the certificate of
sale, and in other tax proceedings was not complied with.
[Headnote 3]
Plaintiff's action was to quiet title to the property involved, accompanied by a tender to pay
all taxes, interest and penalties against the property. Clark County's answer asserted no
defenses other than the delinquent tax deed. The reversal of the judgment that must follow
from the conclusions above reached will require an entry of the judgment quieting plaintiff's
title as prayed, with a judgment in favor of the county against appellant for the proper amount
of accrued taxes, interest and penalties against said parcel.
Reversed.
Eather and Merrill, JJ., concur.
____________
In Memoriam
____________
Charles Lee Horsey
73 Nev. 357, 357 (1957) In Memoriam Charles Lee Horsey
IN THE SUPREME COURT OF THE
STATE OF NEVADA
____________
In the Matter of the Death of
Honorable CHARLES LEE HORSEY

}

Order

In respect to the memory of the late Honorable Charles Lee Horsey, who served with
distinction as a Justice and Chief Justice of this court and who departed this life on the 30th
day of March, 1958,
It Is Hereby Ordered that Hon. A. S. Henderson, Chairman, Hon. Wm. E. Orr, Hon.
Roger T. Foley, Hon. Frank McNamee, Hon. Ryland G. Taylor, C. D. Breeze, Harold M.
Morse, George E. Marshall and Bryce Rhodes be, and they hereby are, appointed as a
committee to draft and present to this court suitable resolutions expressing the high esteem in
which he was universally held, and the sorrow of the members of the bench and bar of
Nevada because of his passing.
Done at Carson City, Nevada, this 31st day of March, 1958.
Milton B. Badt,
Chief Justice.
Edgar Eather,
Associate Justice.
Charles M. Merrill,
Associate Justice.
Attest: Ned A. Turner,
Clerk of Supreme Court.
To the Honorable, the Supreme Court of the State of Nevada:
Your committee appointed to prepare and present resolutions on the life of The
Honorable Charles Lee Horsey, giving expressions of the high esteem in which he was
universally held, and stressing the sorrow of the members of the bench and bar of Nevada
because of his passing, respectfully submit the following: Honorable Charles Lee Horsey
who died in Santa Barbara, State of California, on March 30, 195S, was born in Laurel,
Delaware on December 23, 1SS0.
73 Nev. 357, 358 (1957) In Memoriam Charles Lee Horsey
Honorable Charles Lee Horsey who died in Santa Barbara, State of California, on
March 30, 1958, was born in Laurel, Delaware on December 23, 1880. He was educated in
the private schools in Laurel and later attended the University of Virginia where he received
his L.L.B. Degree in 1904.
He was married to Margaret Woodruff Hitch September 7, 1903, and of this marriage
there were four children, Charles Lee Horsey, Jr., Clark Horsey and Francis Horsey, all of Las
Vegas, Nevada, and Mrs. Virginia Allred of Santa Barbara, California.
He was a life-long Democrat, and had long been identified with the Nevada political
scene and his career was climaxed by his election to the State Supreme Court.
Together with his family he moved to Pioche, then a bustling Lincoln County mining
community, in 1905. At that time Pioche served as county seat of the county which then
included the area now encompassing Clark County.
He served as District Attorney of Lincoln County from 1906 to 1908 and then was
elected State Senator, serving in the State Legislature from 1913 through 1915. While in the
State Senate he chairmanned the judiaciary committee and was closely identified with the
writing of many statutes, now on the books, which liberalized benefits for workers and
tightened safety laws affecting the mining industry.
Throughout his active life he had been associated in the development of mining and
served as president of the Virginia-Louise Mining Company from 1917 through 1922. He
served as District Judge of the Tenth Judicial District from 1915 to 1919 and later was elected
State Senator from Clark County in 1939.
He was appointed District Judge of the Eighth Judicial District in Clark County in
1945 and within a few months was elevated upon appointment to the State Supreme Court, by
then Governor Vail Pittman. In 1946 he was elected for a full six-year term on the high court.
Justice Horsey served as president of the Las Vegas Bar Association in 1929 and was
a member of the Nevada State Bar, American Bar Association, American Judicature
Society, University of Virginia Alumni Association, Academy of Political Science, and the
Methodist Church.
73 Nev. 357, 359 (1957) In Memoriam Charles Lee Horsey
Nevada State Bar, American Bar Association, American Judicature Society, University of
Virginia Alumni Association, Academy of Political Science, and the Methodist Church.
Besides rendering services as a public official in our State he took an active interest in
civic and economic affairs, was active in fraternal affairs, and held membership in the
Masons, IOOF (of which he was a past noble grand), and of the Elks. He had also been a
member of Rotary and Kiwanis Clubs.
In addition to his wife, three sons and daughter, Judge Horsey is survived by four
grandchildren, and a great-granddaughter.
Besides being a kindly person he had an exceptionally fine personality and a mind that
fitted him admirably for the many official positions held by him as well as for his profession
as a practicing attorney.
The United States, his native State of Delaware, and the State of Nevada, are deeply
indebted to him for his valuable contribution to their civic, economic, legal and political life
during his brilliant career.
Respectfully submitted, this 1st day of April, 1958.
A. S. Henderson, Ryland G. Taylor,
Chairman, C. D. Breeze,
Wm. E. Orr, Harold M. Morse,
Roger T. Foley, George E. Marshall,
Frank McNamee, Bryce Rhodes,
Committee.
The foregoing resolution was adopted by the court and ordered spread upon its
minutes, and a copy ordered to be sent to the surviving wife and children of Judge Horsey and
published in the next volume of the Nevada Reports.
____________