Nevada Reports 1960 (76 Nev.) PDF

76 Nev.
1, 1 (1960)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
VOLUME 76
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76 Nev. 1, 1 (1960) Raggio v. Bryan
WILLIAM J. RAGGIO, District Attorney of Washoe County, Appellant, v. WILLIAM J.
BRYAN, Respondent.
No. 4260
January 6, 1960 348 P.2d 156
Appeal from the Second Judicial District Court, Washoe County; John F. Sexton,
Presiding Judge, Department No. 3.
Habeas corpus proceeding instituted by physician charged with furnishing intoxicating
liquor to minor. The lower court entered order discharging defendant from custody and
district attorney appealed. The Supreme Court, McNamee, C. J., held that evidence failed to
establish such liquor was supplied in defendant's capacity as a physician and that other
evidence was such that justice of peace who bound defendant over for trial by district court
after preliminary hearing could properly have concluded that there was sufficient cause to
believe defendant guilty as charged.
Reversed.
Roger D. Foley, Attorney General, William J. Raggio, District Attorney, Washoe County,
for Appellant.
Streeter & Sala, of Reno, for Respondent.
1. Intoxicating Liquors.
The purpose of exempting physicians from penal provisions of statute relating to furnishing intoxicating
liquor to minors was to protect physicians when prescribing intoxicating liquor in their professional
capacity. NRS 202.050, subd. 2.
2. Habeas Corpus.
In habeas corpus proceeding instituted by physician charged with furnishing intoxicating liquor to minor,
the fact that physician for some period of time immediately preceding incident had been minor's family
physician was in itself insufficient to raise an inference that physician had acted in his capacity as a
physician. NRS 202.050, subd. 2.
3. Criminal Law.
A magistrate, in holding a defendant to answer for a crime, is not required to find evidence sufficient to
establish the guilt of the person charged beyond a reasonable doubt.
4. Habeas Corpus.
In habeas corpus proceeding instituted by physician charged with furnishing intoxicating liquor to minor,
evidence failed to establish that such liquor was supplied in defendant's capacity as a physician and other
evidence presented was such that justice of peace who bound defendant over for trial after preliminary
hearing could properly have concluded that there was sufficient cause to believe defendant guilty as
charged. NRS 202.050, subd. 2.
OPINION
By the Court, McNamee, C. J.:
Respondent was charged with furnishing intoxicating liquor, to wit, Scotch whiskey and
champagne, to Jean Ann Dickson,
1
a minor of the age of 18 years, in violation of NRS
202.050. Section 2 of said act provides: Nothing in this section shall be deemed to apply to
parents of such minor * * * or to [her] guardian or physicians.
____________________

1
In referring to Jean Ann Dickson as a minor we are not unmindful of NRS 129.010 which fixes the age of
majority for females at 18 years. We do so because NRS 202.050 is entitled Sales, gifts of intoxicating liquor to
minors * * *, and that has become the popular name of the offense, even though the prohibition therein extends
to all females under the age of 21 years.
After a preliminary hearing before a justice of the peace, respondent was bound over for
trial by the District Court of the Second Judicial District. Thereafter respondent commenced
this proceeding for a writ of habeas corpus in another department of said District Court, and
as a result thereof he was discharged from custody. From the order of discharge this appeal is
taken.
Appellant recognizes the statutory exemption of physicians, but he contends that the
relationship of physician and patient must exist at the time of the act charged for such
exemption to be applicable.
The only evidence before the court below was the transcript of the proceedings of the
preliminary hearing before the justice of the peace. At said hearing the minor testified that she
had gone to the office of respondent on May 13, 1959 to work for him as a paid employee
addressing mailing matter in connection with a political campaign. That on arrival at about
3:00 p.m., she received from respondent a polio shot, but that such medication had not been
prearranged, and no other medical treatment was given her by respondent except the shot
hereinafter referred to. Respondent's receptionist left the office about 5:30 p. m. and
thereupon respondent gave the minor two water glasses of champagne and about the same
amount of whiskey. This liquor made her drunk, and she became sick. During the time she
was drinking this liquor, respondent talked to her not about her problems, but about free love
and matters of that general nature. Some time thereafter respondent administered her some
sort of a shot because she had vomited. She was still intoxicated and hysterical when her
mother saw her at midnight. A police officer testified that upon interviewing respondent after
the above incidents, respondent admitted he had given the minor champagne and whiskey.
Respondent had been the physician of the minor and her family for three years during which
time he had given the minor hypnotic and other treatments.
[Headnotes 1-4]
The obvious purpose of exempting physicians from the penal provisions of said statute
was to protect them when prescribing intoxicating liquor in their professional capacity.
the penal provisions of said statute was to protect them when prescribing intoxicating liquor
in their professional capacity. Blakely v. State, 73 Ark. 218, 83 S.W. 948. No evidence
whatsoever was presented to show that respondent supplied the minor with the liquor in his
capacity as a physician, and the fact that the respondent for some period of time immediately
preceding this incident had been the minor's family physician was in itself insufficient to raise
such an inference. Cf. State v. Morton, 38 S.D. 504, 162 N.W. 155, Ann.Cas. 1918E, 913;
State v. Pomeroy, 163 Mo.App. 288, 147 S.W. 144. On the other hand, the evidence clearly
shows the contrary: the minor was not in respondent's office as a patient, but as a paid
employee; the conversation of the parties during this period had no relation to any physical or
mental ailment of the minor.
It was from such evidence that the justice of the peace properly could conclude that there
was sufficient cause to believe respondent guilty as charged.
In the case of In re Kelly, 28 Nev. 491, 83 P. 223, 226, the court said:
We are not called upon on this hearing to pass upon the sufficiency of this evidence to
warrant the conviction of the defendant, and upon that question express no opinion. In this
connection it is proper to observe that a magistrate, in holding a defendant to answer for a
crime, is not required to have submitted evidence sufficient to establish the guilt of the person
charged beyond a reasonable doubt. As was said in a recent decision (In re Mitchell, 1
Cal.App. 396, 82 Pac. 347: In order to hold defendant and put him on his trial, the
committing magistrate is not required to find evidence sufficient to warrant a conviction. All
that is required is that there be sufficient legal evidence to make it appear that a public
offense has been committed, and there is sufficient cause to believe the defendant guilty
thereof.' Accord Ex Parte Liotard, 47 Nev. 169, 217 P. 960, 30 A.L.R. 63.
Respondent, having been bound over to the district court for trial as a result of a
preliminary hearing at which sufficient legal evidence was presented to make it appear that a
public offense had been committed as charged and there was sufficient cause to believe
him guilty thereof, was under such circumstances not unlawfully restrained of his liberty.
charged and there was sufficient cause to believe him guilty thereof, was under such
circumstances not unlawfully restrained of his liberty. Therefore it was error to grant the writ
of habeas corpus which discharged respondent from custody.
Reversed.
Badt and Pike, JJ., concur.
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76 Nev. 5, 5 (1960) Oliver v. Spitz
CHARLEY M. OLIVER, Petitioner, v. LOUIS P. SPITZ, as Director of the Department of
Motor Vehicles of the State of Nevada, Respondent.
No. 4250
January 7, 1960 348 P.2d 158
Original proceeding in certiorari and mandamus to review action of respondent
discharging petitioner.
The Supreme Court, McNamee, C. J., held that the evidence sustained the commission's
finding that there was no just cause for dismissal, and held that respondent had erred in
refusing the commission's recommendation.
Peremptory writ of mandamus ordered.
Paul D. Laxalt, of Carson City, for Petitioner.
Roger D. Foley, Attorney General, for Respondent.
1. Officers.
Rules promulgated by State Department of Personnel and approved by Advisory Personnel Commission
would have same force and effect as applicable statutes only if they were consistent with statute. NRS
284.155, 284.385.
2. Administrative Law and Procedure.
Acquiescence by legislature in promulgated administrative rules made pursuant to express authority may
be inferred from its silence during period of years.
3. Officers.
Rule requiring just cause for dismissal of employees in classified service was consistent with statute and
precluded dismissal of director of driver's license division without just cause. NRS 284.155, 284.385.
4. Statutes.
An administrative construction which is within language of statute and rules promulgated thereunder
should not be lightly disturbed by courts, particularly where construction is by agency charged with
administration of statute and such construction is intended to advance purposes of statute.
5. Officers.
Removal for just cause means cause sufficient at law. NRS 284.155, 284.385.
6. Officers.
Evidence sustained Advisory Personnel Commission's finding that there was no just cause for dismissal
of director of driver's license division. NRS 284.010, subd. 1(a-d).
7. Officers.
Where no legal cause for dismissal has ever existed, employee is entitled to full pay on reinstatement.
NRS 284.395, subd. 2.
OPINION
Petitioner became Director of the Drivers License Division of the State of Nevada in
January 1954 and continued as such until his dismissal by respondent on July 1, 1959. At the
time of his dismissal the Drivers License Division was a division of the Department of Motor
Vehicles. Under the Nevada Personnel Act (NRS 284.010-284.430) petitioner as such
director was a classified employee, and respondent as his superior officer was the appointing
authority of petitioner. The dismissal of petitioner resulted from a letter dated July 1, 1959
written by respondent pursuant to NRS 284.385 specifically setting forth 14 charges of
malfeasance and nonfeasance.
The day after his receipt of said letter petitioner requested in writing a hearing before the
Advisory Personnel Commission to determine the reasonableness of such action, as provided
by NRS 284.390. On August 17, 1959 such hearing was held and on September 14, 1959 the
Advisory Personnel Commission made its findings and recommendations which were
submitted to respondent stating that the reasons given by respondent for the discharge of
petitioner had not been proven. The commission recommended that the petitioner be
reinstated to his former position.
to his former position. More than 30 days elapsed after receipt by respondent of said findings
and recommendations, and the respondent took no action with respect to said findings and
recommendations. Petitioner then commenced the present proceeding praying that a writ of
certiorari or mandamus or both issue commanding respondent to certify to this court a
transcript of the record and proceedings concerning petitioner's said discharge, and
commanding respondent to reinstate petitioner as Director of the Drivers License Division
with pay from the date of said discharge.
The petition is based upon the contention that respondent had no just cause for the
discharge of petitioner and that therefore his action in this regard was in excess of his
authority and jurisdiction.
Pursuant to the writ of certiorari and mandamus issued by this court the respondent
certified his return of the proceedings and has moved to quash the writs and to dismiss this
proceeding. With the consent of counsel, all of the issues are considered together.
NRS 284.385 provides:
1. An appointing authority may:
(a) Dismiss or demote any permanent classified employee when he considers that the
good of the public service will be served thereby.
(b) Suspend without pay, for disciplinary purposes, a permanent employee for a period
not to exceed 30 days.
2. In case of a dismissal or suspension, the director shall be furnished with a statement in
writing specifically setting forth the reasons for such dismissal or suspension. A copy of the
statement shall be furnished to the employee.
3. No employee in the classified service shall be dismissed for religious or racial
reasons.
It is not denied by respondent that if a classified employee was dismissed for either
religious or racial reasons, the appointing authority would be acting in excess of his legal
authority and a writ of mandamus would be proper to compel the reinstatement of the
employee to the office to which he is entitled. Yet in neither case does the statute expressly
provide that the form of application for relief by such an aggrieved employee could be by
mandamus.
neither case does the statute expressly provide that the form of application for relief by such
an aggrieved employee could be by mandamus.
[Headnote 1]
The main question involved is whether or not the rules as promulgated by the Director of
the State Department of Personnel pursuant to NRS 284.155 and as approved by the Advisory
Personnel Commission have the same force and effect as the applicable statutes. It is
conceded that if any rules are inconsistent with the act they would not have the force and
effect of law. On the other hand if they are consistent, they have such force and effect by
statute.
NRS 284.155 provides that the director of the state department of personnel, with the
approval of the commission, shall prescribe a code of rules and regulations for the classified
service which shall have the force and effect of law. Such rules would have the force and
effect of law even though the legislature had not so prescribed (State ex rel. Richardson v.
Board of Regents, 70 Nev. 144, 261 P.2d 515) and the commission probably would have the
power to adopt rules and regulations without specific statutory authority. 73 C.J.S., sec. 93, p.
411.
Section 10.05 of the rules adopted pursuant to the last mentioned statute provides that
employees in the classified service may be dismissed, demoted or suspended without pay for
just cause. When an employee in the classified service is unwilling to perform the duties of
his position in a satisfactory manner or has committed any act or acts to the prejudice of the
public service, or has omitted to perform any act or acts it was his duty to perform or who has
ceased to reside in the State of Nevada or whose service rendered is below satisfactory
standards or who otherwise has become subject to disciplinary or other corrective measures,
the appointing authority shall have the power and it shall be his duty to take action, subject to
the provisions of these rules * * * to dismiss the employee from the public service.
[Headnotes 2, 3]
Thus we must determine whether Section 10.05 of the rules requiring just cause for
dismissal is consistent with NRS 2S4.3S5 which authorizes dismissal when the appointing
authority considers that the good of the public service will be observed thereby.
rules requiring just cause for dismissal is consistent with NRS 284.385 which authorizes
dismissal when the appointing authority considers that the good of the public service will be
observed thereby.
* * * only in a clear case will the court interfere and say that * * * a rule or regulation is
invalid because it is unreasonable or because it is in excess of the authority of the agency
promulgating it. Moreover, an administrative rule or regulation must be clearly illegal, or
plainly and palpably inconsistent with law, or clearly in conflict with a statute relative to the
same subject matter, such as the statute it seeks to implement, in order for the court to declare
it void on such ground.
It is only where an administrative rule or regulation is completely without a rational basis,
or where it is wholly, clearly, or palpably arbitrary, that the court will say that it is invalid for
such reason. 73 C.J.S., sec. 104(a), p. 424.
Furthermore acquiescence by the legislature in promulgated administrative rules made
pursuant to express authority may be inferred from its silence during a period of years.
Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 313, 53 S.Ct. 350, 77 L.Ed. 796. It is
to be noted that the rules were promulgated in 1954, and that there have been three sessions
of the legislature since then.
The rule requiring just cause in no way violates or defeats the spirit and declared purposes
of the statute. See Bird & Jex Co. v. Funk, 96 Utah 450, 85 P.2d 831. The legislative
declaration of purpose is specified in NRS 284.010,
1
and Rule 10.05 is in furtherance of
each purpose stated under Section 1 thereof.
We thus conclude that Rule 10.05 is consistent with the statute and precludes respondent
from dismissing petitioner without just cause.
____________________

1
Sec. 1 of NRS 284.010 reads as follows: The legislature declares that the purpose of this chapter is: (a) To
provide all citizens a fair and equal opportunity for public service; (b) To establish conditions of service which
will attract officers and employees of character and ability; (c) To establish uniform job and salary
classifications; and (d) To increase the efficiency and economy of the governmental departments and agencies
by the improvement of methods of personnel administration.
[Headnotes 4-7]
We must now consider whether or not there was just cause for petitioner's dismissal.
Reasons for the dismissal of petitioner were specifically set out in said letter of dismissal.
As heretofore stated the Advisory Personnel Commission conducted a hearing on the charges.
The hearing before the commission was in the nature of a judicial proceeding. Witnesses for
the petitioner and for the respondent were sworn, examined, and cross-examined. After the
hearing and consideration of the evidence for and against the dismissal, the commission made
a finding that the reasons given by respondent for petitioner's dismissal had not been proven.
In other words the commission found that there was no just cause for dismissal.
The commission is charged with the administration of the act. It has adopted rules
pursuant to the authority given it by the legislature. It has construed the evidence in this case
to be insufficient, under the statute and said rules, to justify petitioner's dismissal.
An administrative construction which is within the language of a statute and the rules
promulgated thereunder should not be lightly disturbed by the courts, particularly a
construction by the agency charged with its administration when such construction is
intended to advance the purposes of a statute. Brewster v. Gage, 280 U.S. 327, 336, 50 S.Ct.
115, 74 L.Ed. 457; Norwegian Nitrogen Co. v. United States, supra; Fawcus Machine Co. v.
United States, 282 U.S. 375, 378, 51 S.Ct. 144, 75 L.Ed. 397.
It is therefore our conclusion that the action of respondent in disregarding the
commission's finding that there was no just cause for dismissal, and in refusing to follow the
commission's recommendation that petitioner be reinstated to his former position is subject to
judicial review, because removal for just cause means cause sufficient in law. State ex rel.
Richardson v. Board of Regents, 70 Nev. 347, 269 P.2d 265. We have read the record and see
no reason to disagree with the commission's findings. While it is true that Section 2 of NRS
284.395 provides that the appointing authority, not later than 30 days after receipt of the
findings and recommendations "may reinstate the employee with or without pay for the
period of suspension," we construe the discretionary provisions of this section as not
being applicable to the situation where a classified employee has been dismissed without
just cause any more than they would be applicable in cases of dismissal for racial or
religious reasons.
not later than 30 days after receipt of the findings and recommendations may reinstate the
employee with or without pay for the period of suspension, we construe the discretionary
provisions of this section as not being applicable to the situation where a classified employee
has been dismissed without just cause any more than they would be applicable in cases of
dismissal for racial or religious reasons.
Where no legal cause for dismissal has ever existed, an employee is entitled to full pay on
reinstatement. State Board of Equalization v. Superior Court, 20 Cal.2d 467, 127 P.2d 4.
Respondent's motion to quash the writ of certiorari and mandamus is denied, and it is
ordered that a peremptory writ of mandamus issue directing respondent to reinstate petitioner
as Director of the Drivers License Division of the Motor Vehicle Department with pay for the
period of suspension.
Pike, J., and Georgetta, D. J., concur.
Badt, J., having voluntarily disqualified himself, the Governor assigned Honorable Clel
Georgetta of the Second Judicial District to sit in the case.
____________
76 Nev. 11, 11 (1960) Clark County School Dist. v. Mueller
CLARK COUNTY SCHOOL DISTRICT, a Political Subdivision of the State of Nevada,
Appellant, v. RICHARD MUELLER, Respondent.
No. 4213
January 8, 1960 348 P.2d 164
Appeal from judgment of Eighth Judicial District Court, Clark County; Frank B. Gregory,
District Judge Presiding, Department No. 2.
Action in eminent domain to condemn property to afford necessary school facilities where
the property was being developed for subdivision purposes. From a judgment awarding
damages to the respondent in the lower court, the school district appeals. The Supreme
Court, Badt, J., held that substantial evidence supported a finding that engineering
development for subdivision purposes had been approximately completed at the time of
taking of one parcel; that finding that access to one parcel was severely impaired by the
taking of another parcel was not prejudicial where the trial court did not make such
finding the basis of any damage awarded to the owner, but that the evidence did not
support the severance award of damages which was excessive by $2,773.24.
the lower court, the school district appeals. The Supreme Court, Badt, J., held that substantial
evidence supported a finding that engineering development for subdivision purposes had been
approximately completed at the time of taking of one parcel; that finding that access to one
parcel was severely impaired by the taking of another parcel was not prejudicial where the
trial court did not make such finding the basis of any damage awarded to the owner, but that
the evidence did not support the severance award of damages which was excessive by
$2,773.24.
Affirmed as modified.
George Foley, District Attorney, of Las Vegas, for Appellant.
Morse, Graves & Compton, of Las Vegas, for Respondent.
1. Eminent Domain.
In proceeding to condemn land to afford further necessary school facilities, substantial evidence sustained
finding that engineering development for subdivision purposes of the condemned property had been
approximately completed at the time of the taking of parcel B.
2. Eminent Domain.
In proceeding to condemn land to afford additional school facilities where engineering work had been
substantially completed on the property for subdivision purposes, evidence did not establish an abuse of
discretion by the trial court with respect to evaluations placed on the property whether by lot or by acre.
3. Eminent Domain.
The determination of value and just condemnation of market value of property condemned does not
preclude the court or jury from considering other elements that fairly enter into the question of value and
which an ordinarily prudent business man would consider before forming judgment in making a purchase.
4. Eminent Domain.
No single measure of value may be applied rigidly in the determination of market value of lands but each
case must be considered in light of its own facts.
5. Eminent Domain.
In proceeding to condemn land for additional school facilities where the land was being developed for
subdivision purposes, that sales to which owner's witnesses testified occurred one, two or three years
prior to the condemnor's entry on the lands and that at the time of such entry there
was a depressed market as contrasted with a boom market at the time of the earlier
sales was a matter for the consideration of the trial court.
one, two or three years prior to the condemnor's entry on the lands and that at the time of such entry there
was a depressed market as contrasted with a boom market at the time of the earlier sales was a matter for
the consideration of the trial court.
6. Eminent Domain.
In proceeding to condemn land developed for subdivision purposes for additional school facilities,
finding that access to one parcel was severely impaired by the taking of another parcel was not prejudicial
where the trial court did not make such finding the basis of any damage awarded to the owner.
7. Eminent Domain.
In proceeding to condemn land for additional school purposes where the land was being developed for
subdivision purposes, evidence did not support a damage award for severance damages to one parcel in the
sum of $8,645.24 and would not support the excess amount of $2,773.24.
OPINION
By the Court, Badt, J.:
In this action in eminent domain the plaintiff appeals from a judgment fixing the
compensation to be paid to the defendant for the land taken and for damages to the remainder
by reason of the severance. The purpose of the condemnation proceeding by Clark County
School District is to acquire land adjacent to school property to afford further necessary
school facilities.
The case was tried to the district court without a jury. Appellant's expert witnesses had
assigned to the land taken (herein referred to as parcel B) an average value of $2,082 an acre.
Respondent's witnesses gave an average value of $4,894 an acre. The court gave the land a
value of $4,000 an acre.
To the land not taken (herein referred to as parcel D) the court assigned a value (on the
same basis of $4,000 per acre) of $12,968 and found that it suffered, by reason of the
severance, 66 2/3 percent damage. There is some confusion whether the last item of damage
was held to have resulted from damage by reason of the severance or by reason of impairment
of access or both.
The total judgment awarded by reason of the foregoing findings was for an aggregate of
$63,549.24, with interest at 7 percent per annum from July 30, 1957, the date of the
taking, such being the date of the order for immediate occupancy, made on motion.
interest at 7 percent per annum from July 30, 1957, the date of the taking, such being the date
of the order for immediate occupancy, made on motion.
Concisely stated, this appeal presents for review the propriety of the court's action in
evaluating at $4,000 per acre the land taken, as well as the land not taken, and finding a
depreciation in value to the extent of two thirds by reason of the severance of or impairment
of access to the land not taken.
Prior to the taking, respondent had filed with the local planning board maps and plats
showing a subdivision of parcel D into 16 building lots, and a subdivision of a portion of
parcel B into 16 building lots and a subdivision of an additional portion of parcel B into 18
building lots. The proposed plats as filed contained a dedication of all streets upon which the
lots abutted, but no offsite improvements had been made.
The errors specifically assigned by appellant are as follows: (1) in finding a $4,000 per
acre valuation for parcels B and D; (2) in finding that engineering development had been
approximately completed at the time of the taking of parcel B; (3) in finding that access to
parcel D was severely impaired by the taking; and (4) in concluding that the severance of
parcel D depreciated its value by two thirds.
Throughout the opening and closing briefs of appellant it is evident that it relies largely on
the contention that the evidence does not support a finding of a $4,000 per acre valuation. On
this item the learned district judge stated: The court has considered at great length the mass
of conflicting evidence received * * *, and we should, in general, be justified in refusing to
interfere with the lower court's resolving of such conflict. Appellant contends, however, that
the trial court in resolving this conflict ignored or rejected well-recognized rules of
determining value and adopted the theory of defendant's expert witnesses based upon sales of
properties in no measure comparable with those here involved and based on conditions
entirely irrelevant to the issue of fixing the value of both the entered and the severed parcels.
Appellant first calls attention to the eminent qualifications of its four expert witnesses.
eminent qualifications of its four expert witnesses. Each of them based his appraisal upon an
acreage basis. One witness found a value of $1,750 an acre, the second, $2,322.86 an acre, the
third, $2,000 an acre, and the fourth, $2,250 an acre. This gave the average of $2,082 an acre
above mentioned, and for which appellant still contends.
It is evident from the record that the trial court did not direct either of the parties to draw
findings or proposed findings, but, in its written Decision, Findings and Conclusions,
adopted its own findings. We quote the following significant part of such decision:
Respecting Parcel B [the land taken, comprising 13.726 acres], plaintiff completely failed
to establish to the satisfaction of this court, its contention as to valuation. The defendant
proved that preliminary engineering work had been done, looking to the subdivision of both
this parcel and parcel D [the land retained by respondent, comprising 3.242 acres, for whose
severance damage was allowed] had been filed with the planning commission of North Las
Vegas in 1955. When confronted with this evidence, plaintiff's experts called in rebuttal
conceded that the value was increased thereby. The defendant stated, and the statement was
not successfully contradicted, that the engineering and development work was halted because
of the imminence of these condemnation proceedings.
The value of parcel B, then, must be determined in the light of the highest and best use as
residential development property, in process of being engineered, platted and developed, as of
July 30, 1957, the date of entry. Here again, the expert appraisers who testified as to costs and
value were in considerable disagreement. * * *
Without burdening this decision by elaboration in great detail upon the reasons and
factors which caused our conclusions, we have determined and find: The court then
proceeded to find the values above noted. Prior thereto the court had said: It is plaintiff's
contention * * * that all of the land [in parcels B and D] should be considered as raw,
unimproved desert land, and that values and damages should be determined accordingly.
and that values and damages should be determined accordingly. All of the expert witnesses
on both sides agreed on one thing (and one thing only): that the highest and best use that
could be made of the land in parcels B and D was for residential development in the lower,
middle-income bracket. At the time of taking, the parcels were almost completely surrounded
by residential developments, except for the school area, and located nearby was an extensive
shopping center. We may note in addition, as shown by the maps, aerial photographs, and
other evidence, that just a block south of the property was a fully constructed and developed
junior high school and to the east and west were further developments. All of this was
apparently well located in a city of some 11,000 people. Appellant concedes that the land
was in the heart of an area where residential growth was taking place.
The defendant's expert witnesses had given a per lot appraisal of $2,500 per lot. Appellant,
while not abandoning its attack on the propriety of the per acre appraisal contends that even
on the per lot appraisal basis respondent's evaluation may not be accepted for several reasons:
[Headnote 1]
Appellant first contends that there should be deducted additional costs amounting to
two-thirds of the engineering needed to complete the lot appraisal. It had first contended that
no engineering had been done. This was met by respondent's introduction of his master plat
filed with the planning board showing the complete subdivision into blocks and lots,
dedication of streets, showing of corners found and corners established at the center of street
intersections and other points, and in addition a plat showing water distribution plan
illustrating the placement of future water mains and fire hydrants and providing for their
connection to the existent and adjacent water system; a plan showing the proposed locations
of street lamps in the subdivision area and a system for providing for electric current to each
of them; three plats showing an over-all plan indicating typical construction of concrete
sidewalks, curbs and gutters and street intersections, together with a graphic illustration
of the proposed construction of these facilities; a grading plan showing the exact
elevation of each corner and the center point of the individual lots within the subdivision;
and a plan showing the main sewerage system as it now exists and providing for the
completion thereof in order to furnish individual sewer facilities.
curbs and gutters and street intersections, together with a graphic illustration of the proposed
construction of these facilities; a grading plan showing the exact elevation of each corner and
the center point of the individual lots within the subdivision; and a plan showing the main
sewerage system as it now exists and providing for the completion thereof in order to furnish
individual sewer facilities. When confronted with this evidence, two of appellant's witnesses
testified that they would assign a value of $1,000 for the engineering work done. As against
this, there was evidence indicating that $8,600 had been expended for engineering work
(though other evidence indicated that this sum might have been $5,500), part of which was
apparently for additional engineering on other parcels not here involved. As to this point we
cannot say that there was not substantial evidence to support the court's finding that the
engineering work had been practically and substantially completed.
Appellant contended further that, on the per lot appraisal basis, there should have been
subtracted the cost of the necessary offsite improvements. As to this, however, the respondent
definitely made allowance in a sum that exceeded the sum estimated by the appellant's expert
witnesses for this item.
Appellant further contends that, on the per lot valuation basis, there should be deducted
from respondent's valuation the sales expense of the individual lots. This may well have been
the basis of the court's action in reducing the respondent's valuation of in excess of $5,000 per
acre to $4,000 per acre. (Appellant's witnesses agreed on a division basis of approximately 4
1/2 lots per acre.) A considerable part of the briefs is devoted to questions of the basis for the
evaluations placed on the property, whether by lot or by acre. We do not consider necessary a
detailed consideration of the cases that have attacked this problem. Both parties presented as
a basis prior sales both by acreage and by lots. Both contended for the applicability of its own
basis and the inapplicability of the basis of its opponent. Each attacked the sales relied on by
the other as being not comparable.
sales relied on by the other as being not comparable. Much discussion was had not only as to
sales of comparable acreages and lots in the vicinity, or more remote from the vicinity, but
upon conditions of demand for building lots over high and low demand periods, financial
conditions, availability of subdivision development capital, slack purchase periods, high
periods of demand for rental properties, and the financial basis of loans for lot development,
ranging from bank loans to an extent of 66 2/3 percent of appraised value to FHA loans to the
extent of 95 percent.
[Headnote 2]
All of these matters were subject to the trial court's exercise of a sound discretion and we
can find no abuse of the exercise of such discretion. We accordingly find no merit in this
assignment.
[Headnotes 3, 4]
In effect appellant contends that in fixing the fair market value of the entered land all
methods of approach must under the circumstances of the case be rejected in favor of its own
method and its own evidence as to the sale of acreages or of subdivided lots in the vicinity.
While recognizing the general acceptance of the authorities submitted by appellant approving
as the most reliable, evidence of sales of similar properties in the vicinity, we cannot accept
the necessity as a matter of law of a restriction to this method. In State ex rel. Department of
Highways v. Pinson, 66 Nev. 227, 207 P.2d 1105, 1108, this court said: All proper elements
offered by any of the parties were apparently taken into consideration, and the findings as to
value and damage find ample support in the evidence. We are, in effect, asked to say that the
trial court was in error in accepting the testimony of respondent's witnesses rather than the
testimony of appellants and their witnesses. This we cannot do. Consistently with that
language this court later said in State ex rel. Department of Highways v. Shaddock, 75 Nev.
392, 344 P.2d 191, that the determining of value and just compensation under evidence of the
market value of the property taken, "does not preclude the court or jury from considering
other elements that can fairly enter into the question of value and which an ordinarily
prudent business man would consider before forming judgment in making a purchase."
does not preclude the court or jury from considering other elements that can fairly enter into
the question of value and which an ordinarily prudent business man would consider before
forming judgment in making a purchase. This court then proceeded to approve the action of
the trial court in considering the rental value of the property condemned as well as the actual
rent produced by the property as elements of value * * * material in the determination of
just compensation for the land taken.' The consideration by the trial court of the
capitalization method was then held not to be in error. One of the cases cited in State ex rel.
Department of Highways v. Shaddock, supra, was Welch v. Tennessee Valley Authority, 6
Cir., 108 F.2d 95, 101, in which the United States Circuit Court of Appeals held that no
single measure of value may be applied rigidly and uniformly in the determination of the
market value of lands but that each case must be considered in the light of its own facts.
Likewise cited in the Shaddock case was In Re Bainbridge-Unadilla, Part 1, State Highway,
168 Misc. 407, 5 N.Y.S.2d 988. There all elements that might affect the fair market value of
the property, including such elements as might influence a reasonably prudent person
interested in purchasing it, were held properly considered. To like effect is Olson v. United
States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236, 1245.
[Headnote 5]
Appellant earnestly contends that sales to which respondent's witnesses testified occurred
one, two, or three years prior to appellant's entry of these lands, and that at the time of such
entry there was a depressed market as contrasted with a boom market at the time of the earlier
sales. This, however, was a matter for the consideration of the trial court in which we cannot
say that there was an abuse of its discretion. Baetjer v. United States, 1 Cir., 143 F.2d 391.
[Headnote 6]
Appellant assigns as error the finding that access to parcel D was severely impaired by the
taking of parcel B.
B. It may be noted however that, although the trial court did in fact make such a finding, it
was not the basis of any damage awarded to respondent by the judgment.
1
Even if we
concede for the sake of argument that the taking of parcel B did not impair respondent's
access to parcel D, the finding of impairment of access is without prejudice to appellant.
[Headnote 7]
Appellant does not claim that there was no severance of parcel D, nor does it claim that
there was no damage to parcel D by reason of such severance. Its expert witness conceded
that the reduced size of parcel D resulting from the severance lessened its desirability for
subdivision development and he placed the actual damage resulting from such severance as
one third of the value of such remaining parcel. One of respondent's expert witnesses testified
definitely to a severance damage of $5,872 to parcel D. The trial court was within its province
in accepting this figure. The record nowhere discloses any evidence of a greater amount of
damage resulting from the severance. The court, however, found that the severance of parcel
D depreciated its value to the extent of two thirds and included a judgment for damages for
such severance in the sum of $8,645.24. We can find in the record no support for this excess
allowance of $2,773.24.
The judgment is modified by reducing the judgment for $63,549.24 to the sum of $60,776,
and as so modified is affirmed. Respondent shall have his costs in this court.
McNamee, C. J., and Pike, J., concur.
____________________

1
The court's precise finding was: That the reasonable value of Parcel D as of July 30, 1957 was $12,968.00,
and that the severance of this parcel caused its value to be depreciated by two-thirds; that defendant should have
damages for such severance in the sum of $8,645.24.
____________
76 Nev. 21, 21 (1960) Zahringer v. Zahringer
SUZANNE LESLIE ZAHRINGER, Appellant, v.
MICHAEL ZAHRINGER, Respondent.
No. 4212
January 12, 1960 348 P.2d 161
Appeal from judgment of the Second Judicial District Court, Washoe County; Clel
Georgetta, Judge, Department No. 3.
Divorce action. The lower court granted divorce to wife on ground of extreme cruelty.
Wife appealed from part of decree which awarded corporate stock to husband as part of
division of property. The Supreme Court, Pike, J., held that evidence sustained trial court's
finding that stock was separate property of husband.
Judgment affirmed.
Gray and Young, of Reno, for Appellant.
Grubic, Drendel and Bradley, of Reno, for Respondent.
1. Divorce.
In divorce action where there were no children of the marriage and no support was ordered paid to the
wife, the court's power to make equitable disposition of property owned by the parties was limited to
community property. NRS 123.130, subd. 2, 125.150, subds. 1, 2.
2. Husband and Wife.
Where husband borrowed money from his parents and used such money to purchase stock which was
issued only in his name, the stock was presumed to be community property.
In divorce action, evidence sustained trial court's finding that stock acquired during marriage was
separate property of husband. NRS 123.130, subd. 2.
OPINION
By the Court, Pike, J.:
Appeal from those provisions of a divorce decree awarding certain corporate stock to
respondent.
The appellant will hereinafter be referred to as the wife and the respondent as the
husband.
The parties were married in this state on June 17, 1954, and resided here during their
marriage which was terminated by a divorce granted to the wife on January 9, 1959, on the
ground of extreme cruelty. The decree divided certain property between the parties. The wife
appeals from that part of the judgment which awarded some 30 shares of Firestone corporate
stock to the husband.
[Headnote 1]
The written decision of the trial judge, as well as the findings of fact, conclusions of law,
and decree all disclose that the basis of such award of the stock was the court's finding that
the stock was the separate property of the husband.
1
This conclusion was based upon the
court's finding that, although all of the Firestone stock had been purchased by the husband
during coverture, such purchases were made either with (a) funds owned by the husband prior
to marriage, or (b) borrowed from his parents on the husband's own credit. It likewise appears
from the record that the trial court in making the award had in mind the decision in Thorne v.
Thorne, 74 Nev. 211, 326 P.2d 729, 730, where this court held, The statutory power of the
court to make equitable disposition of the property owned by the parties is, under NRS
125.150, limited to community property. The only power of the court over the husband's
separate property is to set aside such portion for the wife's support as shall be deemed just and
equitable.
2
In the instant case there was no child of the marriage and no support was
ordered paid to the wife.
____________________

1
NRS 123.130, subd. 2: All property of the husband owned by him before marriage, and that acquired by
him afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, is his separate
property.

2
NRS 125.150, subds. 1 and 2: In granting a divorce, the court may award such alimony to the wife and
shall make such disposition of the community property of the parties as shall appear just and equitable, having
regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and
to the party through whom the property was acquired, and to the burdens, if any, imposed upon it, for the benefit
of the children.
The court may also set apart such portion of the husband's property for the wife's support and the support of
their children as shall be deemed just and equitable.
paid to the wife. Accordingly, under the governing authorities just referred to, the trial court,
if properly finding that such stock was the separate property of the husband did not have
power to distribute the corporate stock to other than the husband.
The husband testified that in May 1956 he borrowed $3,900 from his parents with which
he purchased some 20 or 25 shares of stock, and that in January 1957 he borrowed another
$1,000 from them with which he purchased an additional five shares of stock. He took title to
the stock in his own name and, so far as appears from the record, retained possession and
control of it, except for an undisclosed number of shares pledged to his parents as security for
the payment of the loans which they had made to him. Such pledge was in effect at the time
of the trial. He also testified that, on the occasion of each loan he gave his parents his
promissory note evidencing the indebtedness, but that no payment had ever been made on
either note, and that he still owed his parents the money borrowed from them. No such
promissory note was ever offered in evidence or otherwise brought to the attention of the
court except by the husband's testimony just referred to. Neither of the parents gave any
testimony at the trial. No written documents or records were offered to substantiate the
husband's contention. The husband testified that he did not know the value of the stock at the
time of the trial, limiting himself to saying he imagined that it had not decreased in value
since he had purchased it. He did not state the exact number of shares purchased, but the total
number of shares appears to have been either 25 or 30. Although the wife testified that during
the marriage period she and the husband had discussed the possible purchase of Firestone
stock, there is no evidence that she had knowledge of any of the details attendant upon either
the purchases or the borrowing of the money used to make the purchases by her husband.
However, her testimony shows that she had knowledge that he had acquired the stock after he
had done so, and discussed its probable value with him.
The husband testified that at the time of his marriage, his separate property, so far as either
cash in his possession or deposit credits were concerned, consisted of the following: About
$1,200 in a Reno bank, about $12,300 in two Detroit, Michigan accounts and a few hundred
dollars additional in his possession. The $1,200 was placed in a joint account with his wife
after their marriage on June 17, 1954. About January 1955 he and his wife purchased a parcel
of unimproved real estate for the purpose of constructing a home upon it. He testified that he
made a down payment of $1,000 from the $1,200 on deposit in the Reno bank, followed by a
$5,000 payment drawn by him from his Detroit accounts. With reference to a $7,371.28
check received by him from his Detroit accounts, he testified that he deposited $4,000 of its
proceeds in the joint account of his wife and himself and carried the other some $3,000 in his
wallet, making payments from it covering labor, materials and other construction expenses
until it had all been expended within a period of about a year. The testimony of a bank
official, substantiated by bank records, corroborated the deposit of $4,000 of the proceeds
into the joint account. However, the same testimony and the same records likewise showed
that at that time he purchased another cashier's check for $3,525, causing H. J. Brandenberg
to be named as payee. He paid for both checks with the $7,371.28 check and sufficient cash
to equal the cost of the two checks. He denied having used the portion not deposited in the
joint bank account to purchase the Firestone stock, but persisted in his statement that he had
bought such stock with funds borrowed from his parents. This last mentioned testimony on
the part of the husband cannot be reconciled with the circumstances surrounding the said
cashier's check for $3,525 that was issued to H. J. Brandenberg, which discloses that it was
within a few days thereafter endorsed by such payee to the Firestone Company and negotiated
or deposited by it in a Los Angeles bank.
At the trial the parties stipulated that a total of $10,052.62 of the husband's funds
constituting separate property had been deposited in the joint bank account between
January 3, 1956 and July 20, 1956.
property had been deposited in the joint bank account between January 3, 1956 and July 20,
1956. The testimony in the case shows that $9,000 of this total came from the Detroit
accounts owned by the husband before marriage.
[Headnote 2]
The proceeds of the loans received by the husband from his parents must be presumed to
be community property. Jones v. Edwards, 49 Nev. 299, 245 P. 292. Likewise when the
husband purchased stock with the borrowed funds, the stock was presumed to be community
property. Lake v. Bender, 18 Nev. 361, 384, 4 P. 711, 7 P. 74. The fact that the stock was
issued only in the name of the husband did not affect the presumption that it was community
property. Milisich v. Hillhouse, 48 Nev. 166, 228 P. 307.
With the above outlined evidence before it, the trial court was required to determine
whether or not such evidence was sufficient to rebut the presumption that the Firestone stock
purchased by the husband during coverture was community property. There was no testimony
before the court refuting that of the husband that he had purchased the stock with funds
borrowed by him from his parents and to whom he had pledged some of the stock at least as
security for repayment of the loans. There was, however, the $3,525 cashier's check payable
to Brandenberg and endorsed by him to the Firestone Company. This check was purchased
with separate funds of the husband and, while there is no conclusive evidence that this
particular check was used to buy Firestone stock, there is certainly nothing in the record
indicating why the funds were paid to the Firestone Company unless it was in connection
with the stock purchases testified to by the husband.
[Headnote 3]
There was evidence before the trial court that at the time that the stock purchases were
made, the husband had separate property funds available to make such purchases. There was
also evidence that such funds had been so used, despite the husband's testimony to the
contrary.
contrary. Whether or not the evidence was clear and convincing and sufficient to overcome
the presumption that the stock acquired during coverture was community property, was a
question for the trial court and, under the particular evidence of this case, we consider there
was substantial evidence in support of the trial court's finding and the portion of the judgment
appealed from. In Re Pepper's Estate, 158 Cal. 619, 112 P. 62, 63, 31 L.R.A. (n.s.) 1092.
Judgment affirmed, with costs to respondent.
McNamee, C. J., and Badt, J., concur.
____________
76 Nev. 26, 26 (1960) Linnecke v. Dep't of Highways
HARRY L. LINNECKE, MRS. LAWRENCE SIRI, GUS BESSO, ELWOOD RATH and
EARL D. REED, Appellants, v. DEPARTMENT OF HIGHWAYS, STATE OF NEVADA,
Respondent.
No. 4233
January 13, 1960 348 P.2d 235
Appeal from judgment of First Judicial District Court, Ormsby County; Frank B. Gregory,
Judge, Department No. 1.
Action to restrain Department of Highways from constructing or expending state funds for
construction of freeway in city or for acquisition of property by eminent domain proceedings
for right of way for location of freeway. The lower court entered judgment denying
injunction, and the plaintiffs appealed. The Supreme Court, Badt, J., held that where notices
were published in newspapers that State Highway Department would hold public hearing
regarding proposed federal aid highway through city and there was extensive local
newspaper, radio and television coverage preceding the hearing and a week prior thereto
detailed descriptions of proposed routes were distributed to utility users in the area and
economic effects of such routes were discussed at hearing, there was sufficient compliance
with requirement of Federal Aid Highway Act that department shall hold public hearing
and consider the economic effects of location of such highway, notwithstanding that
notice did not state that economic effects would be considered at hearing.
requirement of Federal Aid Highway Act that department shall hold public hearing and
consider the economic effects of location of such highway, notwithstanding that notice did
not state that economic effects would be considered at hearing.
Affirmed.
Ernest S. Brown and Samuel B. Francovich, of Reno, for Appellants.
Roger D. Foley, Attorney General, William E. Freedman and Earl Monsey, Deputy
Attorneys General, and Bruce R. Thompson, Special Deputy Attorney General, for
Respondent.
1. Highways.
Where notices were published in newspapers that State Highway Department would hold public hearing
regarding proposed federal aid highway through city and there was extensive local newspaper, radio and
television coverage preceding the hearing and a week prior thereto detailed descriptions of proposed routes
were distributed to utility users in the area and economic effects of such routes were discussed at hearing,
there was sufficient compliance with requirement of Federal Aid Highway Act that Department shall hold
public hearing and consider the economic effects of location of such highway, notwithstanding that notice
did not state that economic effects would be considered at hearing. 23 U.S.C.A. 128 (a).
2. Highways.
The Federal Aid Highway Act provision relating to public hearings by State Highway Department
planning a federal aid highway project which bypasses or goes through city does not contemplate that
Department shall conduct quasi-judicial hearing but merely that Department will hold public hearing to
inform residents of area of locations under consideration so that such residents can express their views,
including their views as to economic effects of such locations. 23 U.S.C.A. 128(a).
OPINION
This appeal is from judgment of the lower court denying to appellants, plaintiffs below, an
injunction restraining the Department of Highways of the State of Nevada from constructing
or expending state funds for the construction of what is known as the Third Street
Freeway in Reno, or for the acquisition of property by eminent domain proceedings for a
right of way for the location of the freeway.
from constructing or expending state funds for the construction of what is known as the Third
Street Freeway in Reno, or for the acquisition of property by eminent domain proceedings for
a right of way for the location of the freeway.
The action was brought by appellants as taxpayers, on behalf of themselves and all others
similarly situated.
Appellants alleged that shortly after November 26, 1957 the State Highway Department
recommended to the Federal Bureau of Public Roads, under authority of the Federal Aid
Highway Act of 1956, that the Third Street Freeway be constructed; that in September 1958
the Federal Bureau of Public Roads approved such highway, to cost approximately 36 million
dollars, which included construction from the California state line some 21 miles easterly
through Verdi, Reno, and Sparks, Nevada; that its cost was to be paid 95 percent from federal
funds and 5 percent by state funds, with the state paying 17 percent of costs of grade-crossing
structures. The complaint then quoted sec. 116(c) of the Federal Aid Highway Act of 1956
[Now 23 U.S.C.A. sec. 128(a)] as follows:
(c) Public HearingsAny state highway department which submits plans for a federal aid
highway project involving the bypassing of, or going through, any city * * * shall certify to
the Commissioner of Public Roads that it has had public hearings, or has afforded the
opportunity for such hearings, and has considered the economic effects of such a location: * *
* The section then requires that a copy of the transcript of such hearing be submitted with
the certification.
The complaint further recites that the State Highway Department never had a public
hearing affording an opportunity for taxpayers, property owners, and citizens affected to
present evidence respecting the economic effect of such location; and that the State
Department of Highways was accordingly without jurisdiction to recommend said Third
Street Freeway to the Federal Bureau of Public Roads or to expend any public funds or
exercise the right of eminent domain in the premises; that no notice of a public hearing to
determine the economic impact upon the area of the proposed freeway was ever given as
required by law; that unless restrained the State Department of Highways will proceed
with such construction and eminent domain proceedings, resulting in the destruction of
private property and irreparable injury, loss, and damage to plaintiffs and others similarly
situated.
or exercise the right of eminent domain in the premises; that no notice of a public hearing to
determine the economic impact upon the area of the proposed freeway was ever given as
required by law; that unless restrained the State Department of Highways will proceed with
such construction and eminent domain proceedings, resulting in the destruction of private
property and irreparable injury, loss, and damage to plaintiffs and others similarly situated.
The trial court found:
That there was published in the Reno Evening Gazette and in the Nevada State Journal a
Notice of Public Hearing' in words and figures as follows:
Notice is hereby given that on the 26th day of November, 1957, in accordance with
Section 116(c) of the Federal Aid Highway Act of 1956, the Nevada State Highway
Department will hold a public hearing at the State Building Auditorium in Reno, Nevada,
regarding the proposed construction of * * * a portion of the Nevada Federal Aid Interstate
and Defense Highway System from the west city limits of Reno to the east city limits of
Reno.
The proposed construction consists of grading the roadbed, installing drainage
structures, railroad separations, interchanges and placing surface courses on a four lane
highway with complete control of access.
Plans will be on display in the State Building Auditorium in Reno, Nevada, from 12:00
P. M. to 8:00 P. M. on November 22nd, 23rd and 25th, 1957.
All persons interested are hereby notified to be and appear at this meeting on the 26th of
November at 2:00 P. M. and be heard.
Dated this 30th day of October, 1957.
H. D. Mills, State Highway Engineer.'
It further found that such notice was published in the (Reno) Nevada State Journal
November 13 and 23, 1957, and in the Reno (Nevada) Evening Gazette November 12 and 22,
1957, and that pursuant to such notice a hearing was held in Reno November 26, 1957, a
transcript thereof transmitted to the Bureau of Public Roads on January 24, 195S; that
the letter of transmission stated that "careful consideration has been given to the
economic effect of the proposed route on both of the cities of Reno and Sparks," and that
on September 3, 195S the Federal Bureau approved the Third Street route.
a transcript thereof transmitted to the Bureau of Public Roads on January 24, 1958; that the
letter of transmission stated that careful consideration has been given to the economic effect
of the proposed route on both of the cities of Reno and Sparks, and that on September 3,
1958 the Federal Bureau approved the Third Street route. It should be noted further that in
addition to the official notices of the meeting there was extensive local newspaper, radio, and
television coverage of the proposed meeting, and that a week prior thereto, 30,000 copies of a
pamphlet entitled You and Your Freeway, containing a detailed map and a description of
the several routes proposed, were distributed to utility users in the Reno-Sparks area.
Appellants attack the sufficiency of the notice for its failure to designate that the economic
effects of the location would be considered. They further attack the actual hearing as held as
not complying with the tradition of judicial proceedings in which evidence is received and
weighed by the trier of facts, to the end that a decision may be made in good conscience, in
consideration of the evidence and, guided by that alone, to reach a conclusion uninfluenced
by extraneous considerations; that without such, the determination is void.
The learned district judge filed a written opinion in denying the injunctive relief sought,
holding first, that the giving of notice, the holding and the conduct of the public hearing, are
matters of concern to the taxpayers of Nevada only insofar as they are conditions precedent to
the authorization and grant of federal aid to the ultimate construction. If the notice should be
insufficient, if the hearing is inadequate, if the required certificate is lacking, then the Bureau
of Public Roads must determine that deficiency * * *. He held, secondly, that in any event
because of the hearing had, the consideration given to economic effects, and the certification
made by letter, [these things] were sufficient to meet the broad and general requirements, and
that there had been substantial compliance with the provisions of [the federal] act.
We have concluded that the judgment of the lower court was correct for both of the
reasons given.
court was correct for both of the reasons given. The only requirement for a public hearing is
the one quoted from the applicable section of the Federal Aid Highway Act. No such hearing
is required by any such statute of this state. In a similar case the Supreme Court of Delaware
had the same two questions for consideration. It said: But all the criticism of the public
hearings is beside the point. The state law requires no public hearing. The federal statute, as
already noted, does require such a hearing. The State must comply with the federal law to
obtain federal funds. It has so complied, because the project has been approved by the Bureau
of Public Roads. The argument is beside the point. Piekarski v. Smith, Del., 153, A.2d 587,
593. To like effect is Binghamton Citizens Penn-Can R. 17 H. C. v. Federick, 7 A.D.2d 170,
180 N.Y.S.2d 913. In Hoffman v. Stevens, U.S. District Court M.D.Pa., 177 Fed.Supp. 898,
903, the court held that: At best, failure to afford a hearing might give rise to a dispute
between the Secretary of Commerce and Pennsylvania Department of Highways as to
allocation and use of federal funds. The court, referring to Piekarski v. Smith, supra,
affirmed in 153 A.2d 587, emphasized the fact that under state law, absent federal aid, such
hearings are not required or held.
[Headnote 1]
Section 116(c) of the Federal Highway Act does not specify the form of notice to be given.
We cannot agree with appellants' contention that the notice was fatally defective because it
failed to state that at the public hearing consideration would be given to the economic effects
of the location of the freeway. It is unreasonable and unrealistic to assume that persons
interested in such economic effect would remain away from the meeting because they
concluded from the form of the notice that they would not be heard upon the point. The
transcript of the public meeting is before us and it is evident therefrom that none of the
witnesses felt circumscribed in this regard. The transcript of the meeting contains some
50,000 words. Forty-five witnesses testified, and in addition, 21 statements, resolutions,
and papers were offered and made a part of the record.
addition, 21 statements, resolutions, and papers were offered and made a part of the record. It
is indicated that the meeting followed a similar meeting held in Sparks, although no transcript
of the Sparks record is before us. Anyone at the meeting desiring to be heard was given an
opportunity to speak. Some 15 or more of the statements and arguments heard were directed
to the economic effects of the selection of a route for the freeway. The economic stability and
sound growth of the city of Reno, the damage to hotels, motels, restaurants, and other
businesses established along a prior route, the wiping out of hotels, parts of schools, trucking
lines, etc. by the proposed right of way, the displacing of business, the loss of tax revenue, the
waste in excessive costs, the necessary removal of between 300 and 400 structures, the
reduction of value of fine homes, the loss of tax money needed to pave streets and improve
the existing sewer system, were all urged.
These and many other views, some favorable and some unfavorable, indicate most clearly
that much of the meeting was directed to consideration of the economic effects of the location
of the freeway.
[Headnote 2]
Appellants contend that the nature of the required hearing was that of a quasi-judicial
hearing and that the hearing as held was in this respect fatally defective. With this we cannot
agree. On the contrary, we are satisfied that the public hearings contemplated by the federal
act were for the purpose of informing the residents of the area of the locations being
considered by the state so that such residents might be given the opportunity to express their
views, including their views of the economic effects of the location. This is indicated by the
language used by the House Committee on governmental operations in the instant matter,
stating that the hearing was to give opportunity for public expression. (House Report, No.
292, 86th Congress, First Session, p. 16) See Piekarski v. Smith, supra. Alabama Power
Company v. City of Fort Payne, 237 Ala. 459, 187 So. 632, 123 A.L.R. 1337, and Morgan v.
United States, 29S U.S. 46S, 56 S.Ct.
United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288, relied upon by appellants as
holding that section 116(c) of the federal act contemplates a quasi-judicial hearing, are not in
point.
The judgment of the district court denying injunctive relief is affirmed. No costs are
awarded.
____________
76 Nev. 33, 33 (1960) Wilson v. Koontz
ORVILLE R. WILSON, WM. C. GOODMAN, TOY R. GREGORY, Jr., WALTER
POLKINGHORNE, FRED H. DRESSLER, PETER T. KELLY, BERT ACREE, T. M.
KEAN, WAYNE JEPPSON and CLYDE GUNMOW, Petitioners, v. JOHN KOONTZ, as
Secretary of State of the State of Nevada, Respondent.
No. 4268
January 14, 1960 348 P.2d 231
Original proceeding in mandamus to require respondent to file initiative petition for
amendment of constitution to provide for biennial rather than annual sessions of the
legislature. The Supreme Court, McNamee, C. J., held that section of constitution providing
for initiative and referendum is self-executing as to constitutional amendments and
amendment of such section through an initiative petition which was approved and ratified by
people at general election was valid.
Peremptory writ of mandamus ordered.
Gray and Horton, of Reno, for Petitioners.
Roger D. Foley, Attorney General, State of Nevada, for Respondent.
1. Statutes.
Purpose of 1958 amendment of article of constitution concerning initiative and referendum was to require
for initiative petition more signatures from a diversified area of the state and also to
specify a particular type of verification.
petition more signatures from a diversified area of the state and also to specify a particular type of
verification. Const. art. 19, 3.
2. Constitutional Law.
Section of constitution providing for initiative and referendum is self-executing as to constitutional
amendments and amendment of such section through an initiative petition which was approved and ratified
by people at general election was valid. Const. art. 19, 3.
3. Statutes.
Under 1958 amendment of initiative and referendum section of constitution providing that total number
of votes cast at general election last preceding filing of any petition shall be the basis on which number of
qualified electors required to sign such petition shall be counted, the quoted phrase means the total number
of ballots cast and wording of such section is not so ambiguous as to make impossible the determination of
number of signatures required. Const. art. 19, 3.
OPINION
This is an original proceeding in mandamus brought by petitioners as residents and
qualified electors of Nevada seeking an order from this court requiring respondent as
Secretary of State to file their petition hereinafter described.
Petitioners seek to amend Article 4, section 2, of the Constitution of the State of Nevada
so that it will provide for biennial rather than annual sessions of the legislature. They attempt
to do so by an initiative petition under the provisions of Article 19, section 3, of said
constitution (as amended in 1958). The respondent refused to file the petition basing his
refusal on the grounds (1) that the 1958 amendment of Article 19, section 3, is invalid and, in
any event, is self-executing with respect to proposed legislation only but not as to proposed
constitutional amendments, and (2) that even if self-executing the ambiguity of section 3
created by the 1958 amendment thereof makes it impossible to determine whether the petition
as presented for filing contains the required number of signatures.
Section 3 was added to Article 19 in 1912 by approval of the voters after having been
passed by the two preceding legislatures.
of the voters after having been passed by the two preceding legislatures. See Stats. of Nev.
1909, p. 347, and 1911, p. 446. It was then worded as follows, the brackets indicating the
portions thereafter deleted as hereinafter explained:
Section 3. The people reserve to themselves the power to propose laws and the power to
propose amendments to the constitution and to enact or reject the same at the polls,
independent of the legislature, and also reserve the power at their option to approve or reject
at the polls, in the manner herein provided, any act, item, section or part of any act or measure
passed by the legislature, and section one of article four of the constitution shall hereafter be
considered accordingly. The first power reserved by the people is the initiative, [and not more
than ten per cent (10%) of the qualified electors shall be required to propose any measure by
initiative petition, and] every such petition shall include the full text of the measure so
proposed. Initiative petitions, for all but municipal legislation, shall be filed with the secretary
of state not less than thirty (30) days before any regular session of the legislature; the
secretary of state shall transmit the same to the legislature as soon as it convenes and
organizes. Such initiative measure shall take precedence over all measures of the legislature
except appropriation bills, and shall be enacted or rejected by the legislature, without change
or amendment, within forty (40) days. If any such initiative measure so proposed by petition
as aforesaid, shall be enacted by the legislature and approved by the governor in the same
manner as other laws are enacted, same shall become a law, but shall be subject to
referendum petition as provided in sections one and two of this article. If said initiative
measure be rejected by the legislature, or if no action be taken thereon within said forty (40)
days, the secretary of state shall submit the same to the qualified electors for approval or
rejection at the next ensuing general election; and if a majority of the qualified electors voting
thereon shall approve of such measure it shall become a law and take effect from the date of
the official declaration of the vote; an initiative measure so approved by the qualified
electors shall not be annulled, set aside or repealed by the legislature within three {3)
years from the date said act takes effect.
the date of the official declaration of the vote; an initiative measure so approved by the
qualified electors shall not be annulled, set aside or repealed by the legislature within three
(3) years from the date said act takes effect. In case the legislature shall reject such initiative
measure, said body may, with the approval of the governor, propose a different measure on
the same subject, in which event both measures shall be submitted by the secretary of state to
the qualified electors for approval or rejection at the next ensuing general election. The
enacting clause of all bills proposed by the initiative shall be: The people of the State of
Nevada do enact as follows.' [The whole number of votes cast for justice of the supreme court
at the general election last preceding the filing of any initiative petition shall be the basis on
which the number of qualified electors required to sign such petition shall be counted.] The
second power reserved by the people is the referendum, which shall be exercised in the
manner provided in sections one and two of this article. The initiative and referendum powers
in this article provided for are further reserved to the qualified electors of each county and
municipality as to all local, special, and municipal legislation of every character in or for said
respective counties or municipalities. The legislature may provide by law for the manner of
exercising the initiative and referendum powers as to county and municipal legislation, but
shall not require a petition of more than 10 per cent (10%) of the qualified electors to order
the referendum, nor more than 15 per cent (15%) to propose any municipal measure by
initiative. If the conflicting measures submitted to the people at the next ensuing general
election shall both be approved by a majority of the votes severally cast for and against each
of said measures, the measure receiving the highest number of affirmative votes shall
thereupon become a law as to all conflicting provisions. The provision of this section shall be
self-executing, but legislation may be especially enacted to facilitate its operation.
This 1912 amendment to Article 19 for the first time provided for the initiative whereby
the people were empowered to propose amendments to the constitution and to enact or
reject the same at the polls independent of the legislature, and similarly were empowered
to propose laws.
empowered to propose amendments to the constitution and to enact or reject the same at the
polls independent of the legislature, and similarly were empowered to propose laws.
In 1958 said section 3 was amended through an initiative petition which was approved and
ratified by the people at the general election of 1958. In other words the 1958 amendment of
said section 3 was effected by the very provisions of said section 3.
[Headnote 1]
By said 1958 amendment those parts of section 3 shown above in brackets were deleted
and the following provisions were substituted therefor:
The initiative petition shall be proposed by not less than ten per cent (10%) of the
qualified electors of each of not less than seventy-five per cent (75%) of the counties in the
state, provided, however, that the total number of qualified electors proposing the said
petition shall be not less than ten per cent (10%) of all of the qualified electors of the State.
Each signer shall affix thereto his or her signature, place of residence and the county
within which he or she is a qualified elector. Each document comprising the initiative petition
filed with the Secretary of State shall have affixed thereto, an affidavit made by one of the
signers to each of said documents or to the petition to the effect that all of the signatures are
genuine and that each and every individual who signed his or her name thereto was at the
time that he or she signed the petition a bonafide qualified elector of the respective county
and the State of Nevada, said affidavit to be executed before a notary public or some officer
authorized to administer an oath who possesses a seal.
The total number of votes cast at the general election last preceding the filing of any
initiative petition shall be the basis on which the number of qualified electors required to sign
such petition shall be counted.
The purpose of the 1958 amendment, which affected procedure only, was to require for
initiative petitions more signatures from a diversified area of the state, and also to specify a
particular type of verification.
and also to specify a particular type of verification. Respondent concedes that on the
fundamental question of whether the constitution can be amended by initiative petition under
Article 19, section 3, the original section 3 and section 3 as amended in 1958 do not differ.
[Headnote 2]
1. We have reached the conclusion that section 3, ever since its original enactment, has
been self-executing as to constitutional amendments. Not only does the last sentence thereof
so provide (The provision of this section shall be self-executing * * *.), but the procedure
expressly relates to all initiative petitions other than those pertaining to municipal legislation.
It is specific in the requirements necessary to effectuate the change or changes desired. The
section provides the number of signatures required on any petition, who may sign the petition,
what the petition shall contain, where and when the petition must be filed, and the detailed
disposition of the same after its filing. If any election must follow because of the legislature's
rejection or nonaction thereon, or because of the referendum, the procedure therefor is fully
covered by general law. Respondent in neither his brief nor his oral argument has suggested
any additional procedure that would necessitate further legislative action. The intention of the
people and the legislature in adding section 3 to the constitution was in part to provide an
alternate and shorter method of amending the constitution, and to reserve to the people the
power to propose amendments to the constitution and to enact or reject the same at the polls,
independent of the legislature. The wisdom of making it a part of the organic law is no
concern of the courts.
Under a similar constitutional provision the Supreme Court of Oregon in Stevens v.
Benson, 50 Ore. 269, 91 P. 577, 588, had no difficulty in construing it to be self-executing.
Although the case there involved a proposed law rather than a proposed constitutional
amendment, the following language therefrom would be applicable to both: "A constitutional
provision is said to be self-executing if it enacts a sufficient rule by means of which the
right given may be enjoyed and protected.
A constitutional provision is said to be self-executing if it enacts a sufficient rule by
means of which the right given may be enjoyed and protected. The language used, as well as
the object to be accomplished, is to be looked into in ascertaining the intention of the
provision. As said in Willis v. Mabon, 48 Minn. 140, 50 N.W. 1110, 16 L.R.A. 281, 31
Am.St.Rep. 626: The question in every case is whether the language of a constitutional
provision is addressed to the courts or the Legislature. Does it indicate that it is intended as a
present enactment, complete in itself as definitive legislation, or does it contemplate
subsequent legislation to carry it into effect? This is to be determined from a consideration
both of the language used and the intrinsic nature of the provision itself. If the nature and
extent of the right conferred and of the liability imposed are fixed by the provision itself, so
that they can be determined by the examination and construction of its own terms, and there
is no language used indicating that the subject is referred to the Legislature for action, then
the provision should be construed as self-executing.' * * * As expressed by one court,
whether it is intended thereby to declare personal rights of a citizen or to define a rule for the
government of the Legislature; and if the former, it is legislative, and needs no legislation to
give it force. It is plainly expressed in the provision itself in this case that its reserved rights
are to be independent of the Legislature, and is sufficiently specific that it may be carried out
without legislative aid * * * and in the last clause it provides that the Secretary of State, in
submitting to the people the matter referred, shall be governed by the general laws until
further provision is made by the Legislature, thus not only contemplating that such legislation
is not necessary as to procuring and presenting the petition, but also forestalling any
possibility of defeat, by inaction of the Legislature in regard to the manner of its submission
to the people. As said in Willis v. Mabon, supra: The object being to put it beyond the power
of the Legislature to render them nugatory by refusing to enact legislation to carry them into
effect.' If it were not self-executing, even though it were mandatory upon the Legislature
to make provision to carry it into effect, there is no power to compel it to do so.
into effect.' If it were not self-executing, even though it were mandatory upon the Legislature
to make provision to carry it into effect, there is no power to compel it to do so. The exercise
of that power in any particular case must depend on the volition of the Legislature. Cooley's
Const. Lim. (7th Ed.) 121; In re State Census, 6 S.D. 540, 62 N.W. 129; People ex rel. v.
Rumsey, 64 Ill. 44. Thus a strong reason appears why it was intended to be self-executing,
and it should be so considered.
The case of State ex rel. Dotta v. Brodigan, 37 Nev. 37, 138 P. 914, which heretofore has
construed section 3, has no application to the present situation. There the proposed legislation
concerned a referendum to the voters of one county only, and this court held that the fact that
section 3 was not self-executing in such cases was emphasized by the provision therein that
the legislature may provide by law for the manner of exercising the initiative and referendum
powers as to county and municipal legislation.
Inasmuch as we have concluded that section 3 has been self-executing ever since 1912, its
amendment in 1958 accomplished by the method therein provided must be recognized as
valid.
[Headnote 3]
2. Respondent's second contention is that even if the provisions of section 3 are
self-executing as to constitutional amendments, the petition in containing the signatures of
only 9,445 qualified electors was insufficient, and while this would be more than 10 percent
of the 87,026 ballots cast at the preceding general election, it is far short of the total number
of votes cast at the general election last preceding.
If we were to approve this argument of respondent, the ten percent would be applied to a
figure calculated by multiplying the number of candidates and propositions voted upon by
such voters by the number of voters and the result would require a number of signers in
excess of the total population of the State of Nevada. Respondent seems to concede the
absurdity of such construction, but claims nevertheless that this wording renders the section
so ambiguous as to make impossible a determination of the number of signatures required.
a determination of the number of signatures required.
It appears to us from the wording of the section and from the authorities that the meaning
intended by the words total number of votes cast as used in the 1958 amendment, was
total number of ballots cast. Gottstein v. Lister, 88 Wash. 462, 153 P. 595; cf. State ex rel.
Hunting v. Brodigan, 44 Nev. 306, 194 P. 845.
The petition appearing to be legally sufficient, it is ordered that a peremptory writ of
mandamus issue forthwith directing respondent to file the petition and to otherwise carry out
the provisions of said section 3.
____________
76 Nev. 41, 41 (1960) Ex Parte Current
In the Matter of the Application of HAROLD GEORGE CURRENT For a
Writ of Habeas Corpus.
No. 4279
January 21, 1960 348 P.2d 470
Original proceeding. Application of Harold George Current for a writ of habeas corpus.
The Supreme Court held that where petition for writ of habeas corpus, which alleged that
petitioner pleaded guilty to charge of possession of narcotics and was sentenced to a term of
not less than five years, revealed on its face that even if petitioner had been convicted of a
first offense and had been properly sentenced, minimum term of imprisonment would not yet
have expired, his imprisonment was not presently unlawful, and he was not entitled to his
immediate release.
Application denied.
Petitioner in pro. per.
Habeas Corpus.
Where petition for writ of habeas corpus, which alleged that petitioner pleaded guilty to charge of
possession of narcotics and was sentenced to a term of not less than five years, revealed on its face that
even if petitioner had been convicted of a first offense and had been properly sentenced,
minimum term of imprisonment would not yet have expired, his imprisonment was
not presently unlawful, and he was not entitled to his immediate release, and
petition for habeas corpus would be dismissed.
of a first offense and had been properly sentenced, minimum term of imprisonment would not yet have
expired, his imprisonment was not presently unlawful, and he was not entitled to his immediate release,
and petition for habeas corpus would be dismissed. NRS 453.210, subd. 1 (a-d).
OPINION
Per Curiam:
This is an original petition for a writ of habeas corpus in which the petitioner has applied
in propria persona.
The petitioner alleges that on the 23rd day of March 1959 he pleaded guilty to the charge
of possession of narcotics and was sentenced to a term of not less than five years, and was
sent thereafter to the state prison where he is now confined under said sentence.
It is petitioner's contention that the sentence is illegal because it did not specify the
minimum term.
Subsection 1 of NRS 453.210 (relating to narcotics) provides as follows:
1. (a) Except as otherwise provided in subsections 2 and 3 of this section, any person
who violates any provision of NRS 453.010 to 453.240, inclusive, shall, upon conviction, be
fined not more than $2,000 and be imprisoned in the state prison not less than 2 years or more
than 5 years.
(b) For a second offense, or if, in case of a first conviction of violation of any provision of
NRS 453.010 to 453.240, inclusive, the offender shall previously have been convicted of any
violation of the laws of the United States or of any state, territory or district relating to
narcotic drugs or marihuana, the offender shall be fined not more than $2,000 and be
imprisoned in the state prison not less than 5 years or more than 10 years.
(c) For a third or subsequent offense, or if the offender shall previously have been
convicted two or more times in the aggregate of any violation of the law of the United States
or of any state, territory or district relating to narcotic drugs or marihuana, the offender shall
be fined $2,000 and be imprisoned in the state prison not less than 10 years or more than
20 years.
shall be fined $2,000 and be imprisoned in the state prison not less than 10 years or more than
20 years.
(d) Except in the case of conviction for a first offense, the imposition or execution of
sentence shall not be suspended and probation or parole shall not be granted until the
minimum imprisonment herein provided for the offense shall have been served.
It cannot be ascertained from the petition under which paragraph of subsection 1 petitioner
was convicted and sentenced. If under paragraph (b) or (c), the sentence although erroneous is
not void (Ex parte Melosevich, 36 Nev. 67, 133 P. 57); if under paragraph (a), the minimum
imprisonment should have been for not less than two years.
The petition on its face reveals that even under paragraph (a), if petitioner had been
properly sentenced, the minimum term of imprisonment would not yet have expired. Under
the authority of Ex parte Shepley, 66 Nev. 33, 202 P.2d 882, the imprisonment or detention of
petitioner is not presently unlawful, and he is not entitled to his immediate release.
The petition therefore must be and is hereby ordered dismissed. In re Robinson, 75 Nev.
327, 340 P.2d 591.
____________
76 Nev. 43, 43 (1960) Coolman v. Coolman
EARL A. COOLMAN, Appellant, v.
EVELYN COOLMAN, Respondent.
No. 4227
January 22, 1960 348 P.2d 471
Appeal from the Eighth Judicial District Court, Clark County; George E. Marshall, Judge,
Department No. 4.
Action by wife for divorce on ground of extreme cruelty wherein wife testified that at time
of their separation she had almost constant migraine headaches and that such condition was
result of conditions under which she was living with her husband. From a judgment and
decree of the trial court, awarding wife a divorce, the husband appealed.
divorce, the husband appealed. The Supreme Court, McNamee C. J., held that evidence was
sufficient to support finding that wife's health had been injured.
Affirmed.
Cory, Denton & Smith, of Las Vegas, for Appellant.
Albert Matteucci, of Las Vegas, for Respondent.
1. Divorce.
In action by wife for divorce on ground of extreme cruelty wherein wife testified that at time of their
separation she had almost constant migraine headaches and that such condition was result of conditions
under which she was living with her husband, evidence was sufficient to support finding that wife's health
had been injured.
2. Divorce.
There may be extreme cruelty without personal violence, but conduct complained of must result in danger
to life, limb, or health, or in the reasonable apprehension of such danger to constitute a ground for divorce.
3. Divorce.
In determining whether extreme cruelty relied on as a basis for divorce results in danger to life, limb or
health or in the apprehension of such danger, court is obliged to consider character and refinement of
parties, and conclusion reached depends upon particular facts of each case.
4. Divorce.
In action by wife for divorce on ground of extreme cruelty, wherein court was confronted by both parties
during trial and from their testimony and demeanor on witness stand was in position to evaluate their
character and refinement as well as sensibilities of wife, such evaluation rather than testimony of wife alone
was proper basis for his determination of effect of cruel treatment upon health of wife.
OPINION
This is an appeal from a judgment and decree awarding to the respondent a divorce on the
ground of extreme cruelty. Appellant's answer denied the charge. The lower court tried the
case without a jury and found that since the marriage of the parties the appellant had treated
respondent with extreme cruelty, and thereupon a judgment and decree of divorce was
entered. On this appeal we are not concerned with the particular acts relied upon by the
respondent as constituting extreme cruelty on the part of the appellant.
we are not concerned with the particular acts relied upon by the respondent as constituting
extreme cruelty on the part of the appellant. Appellant's sole contention for a reversal is that
there is insufficient evidence to justify the conclusion that the conduct of appellant, even if
cruel, injured respondent's health or put her in fear of injury to her health.
[Headnote 1]
Respondent, after testifying in detail about appellant's conduct toward her, which in part
consisted of his acts tending to humiliate and degrade her, as well as his false accusations of
her infidelity, stated that she was under terrific pressure all the time, that at the time of their
separation she had almost constant migraine headaches, and that this condition was a result of
the conditions under which she was living with her husband. In Leland v. Leland, 71 Nev.
346, 291 P.2d 905, testimony of a similar nature was held to be sufficient in itself to support
the trial court's finding that the respondent's health had been injured.
[Headnotes 2, 3]
That there may be extreme cruelty without personal violence is well settled in this state
and needs no further comment. Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355. The
conduct complained of, however, must result in danger to life, limb or health or in the
reasonable apprehension of such danger. Kelly v. Kelly, 18 Nev. 49, 1 P. 194, 51 Am.Rep.
732. In determining whether the conduct complained of had such results the court is obliged
to consider the character and refinement of the parties, and the conclusion to be reached must
depend upon the particular facts of each case. Kelly v. Kelly, supra.
[Headnote 4]
The trial judge was confronted by both parties during the trial and from their testimony
and demeanor on the witness stand he would be in a position to evaluate their character and
refinement as well as the sensibilities of the respondent. It is upon such evaluation rather than
upon the testimony of the complaining party alone that his determination of the effect of the
cruel treatment upon the health of the injured spouse should be based.
his determination of the effect of the cruel treatment upon the health of the injured spouse
should be based. Ormachea v. Ormachea, supra; Bess v. Bess, 58 Ida. 259, 72 P.2d 285;
Bradley v. Bradley, Okl., 284 P.2d 434.
It is proper to infer that the conclusion of the trial judge, in holding that the appellant had
been guilty of such extreme cruelty as to authorize a divorce, was a result of his finding that
the aforesaid requirements therefor were present. Bess v. Bess, supra.
Judgment is affirmed.
____________
76 Nev. 46, 46 (1960) Taggart v. Nevada Title Guaranty
BRUCE L. TAGGART, and HELEN L. TAGGART, Appellants, v. NEVADA TITLE
GUARANTY COMPANY, A Nevada Corporation, Respondent.
No. 4226
January 27, 1960 348 P.2d 749
Appeal from judgment of Eighth Judicial District Court, Clark County; George E.
Marshall, Judge, Department No. 4.
Action by escrow purchasers against title company for amount purchasers paid outside of
escrow agreement directly to sellers. The trial court rendered judgment for title company and
purchasers appealed. The Supreme Court, Badt, J., held that where escrow instructions
required a search of title and issuance of title insurance as a condition for closing of escrow
and instructions stated that purchase money would be paid outside of escrow, escrow
purchasers made payments at their own risk and title company which learned through
preliminary search that title insurance would not issue but did not notify purchasers of such
fact was not liable for amount of payments.
Affirmed.
Morton Galane, of Las Vegas, for Appellants.
Emerson J. Wilson, of Reno, for Respondent.
Insurance.
Where escrow instructions required a search of title and issuance of title insurance as a condition for
closing of escrow and instructions stated that purchase money would be paid outside of escrow, escrow
purchasers who made payments outside of escrow directly to sellers did so at their own risk and title
company which learned through a preliminary search that title insurance would not issue but did not
notify escrow purchasers of such fact was not liable for amount of payment.
OPINION
The question presented by this appeal is whether a title company, under escrow
instructions requiring a search of title and the issuance of title insurance as a condition for
closing of the escrow and which instructions state that the purchase money will be paid
outside of escrow, and having learned through a preliminary search that title insurance
would not issue under the existing state of title, and which has not notified the escrow
purchaser of such fact, is liable in tort to a purchaser who has made payments outside of
escrow directly to the seller, resulting in loss to the purchaser.
The district court's judgment held against such tort liability. This ruling is the fundamental
basis of appellants' assignment of error. A consideration of the salient facts is necessary.
The record on appeal is encumbered by a mass of testimony and documentary evidence
wholly immaterial to the issue. This results from the fact that appellants commenced two
actions in the court below. One was against the escrow sellers and their agent, Lucille A.
Swital, for a rescission of the contract of sale; the second was against the title company for
damages for the alleged tort in neglecting to notify plaintiffs that the title was defective.
These two actions were consolidated for trial, resulting in a judgment against the sellers for
rescission as prayed by the contracting purchasers, but denying recovery from the escrow
holder for the asserted tort.
rescission as prayed by the contracting purchasers, but denying recovery from the escrow
holder for the asserted tort. The sellers and their agent Swital are not parties to this appeal.
Swital, an unlicensed real estate dealer in Las Vegas, inserted an ad in a Los Angeles paper
for the sale of a service station on behalf of the Schofields. She was contacted by the Taggarts
and a written memorandum entered into as follows:
Searchlight, Calif., 3/3/56 Received from Bruce L. Taggart, Helen L., $500.00 to apply
on purchase price of $25,000 for [property described]. This deal owner will carry back
necessary 1st Trust Deed on Bal. Cash $8,800 * * *. $1200 on or about in 2nd Trust Deed on
Calif. property. Buyer will deposit an additional $10,300 cash and his necessary instruments
in escrow * * *. The seller is to furnish at his expense in said escrow a Deed and Policy of
Title Insurance * * *. In the event same is not furnished within a reasonable time, then buyer
shall have the right to cancel this agreement and his deposit is to be returned. * * * This
10,000 includes 3500 a/c inventory. Trust Deed payments to be $300 per month or more until
paid, to include 6 percent interest. This was signed by the Schofields under notation that they
agreed to sell on above terms, and by the Taggarts under notation that they agreed to purchase
under said terms. Times and amounts of payments were not otherwise specified. The Taggarts
paid $500 down and sundry payments aggregating some $8,500 during March and April
1956. Some of these payments were for personal property.
Mrs. Swital then had the Schofields sign escrow instructions for the sale of the real estate
and personal property for the sums indicated, under which the Schofields agreed to hand the
escrow holder deed, fire insurance policy, and other necessary instruments to be delivered and
recorded upon receipt of note secured by deed of trust. Then followed the clause: All funds
shall be paid direct to Lucille Swital outside of escrow * * * when you can issue policy of
title insurance * * *. The printed instructions contain many of the usual clauses in addition
to the foregoing.
in addition to the foregoing. Mrs. Swital also had the Taggarts sign escrow instructions under
which the Taggarts handed the title company $100 with agreement to supply note secured by
deed of trust, etc. which you are authorized to use when you can issue policy of title
insurance [on the property described].
The above escrow instructions were dated and filed with the title company March 5, 1956.
Within a few days thereafter the title company began its title search and soon (apparently
about March 10, 1956) determined that the title was not good and that it could not write a title
policy. Apparently it gave no notice of that situation to the Taggarts. During March and April
1956 the Taggarts, without making any inquiry of the title company, proceeded to make
payments to Swital, aggregating several thousand dollars. Upon discovering that title
insurance would not issue they sued Schofields for rescission, with counts against Swital.
Issues being joined in this action and in the action for damages against the title company, the
cases were consolidated and tried with results above noted.
The court made findings dealing both with the action against the Schofields for rescission
of the contract and the action against the title company. With regard to the latter, it found the
execution of the contract of sale and the title instructions as above noted, the taking of
possession by the Taggarts a short time after execution of the contract, that the Taggarts were
not advised of the condition of the title till about May 29, 1956, that the Schofields and
Swital received $10,672.51 and the note and trust deed for $18,500, that the agent of the title
company promptly began the title search and knew within a matter of a few days that title
insurance could not issue. It found further: The plaintiffs did not make a request of
defendant Nevada Title Guaranty Company other than signing the buyers' escrow instructions
that the policy be furnished prior to the time that the injury was done. The court concluded
that the Taggarts were not entitled to take anything as judgment against the title company.
It is this conclusion that is challenged by appellants.
The basis of such challenge is that the title company was under a duty to notify the Taggarts
of the state of the title, because the escrow instructions stated that funds were to be paid
outside of escrow, and because the title company then knew or should have known that the
Taggarts were in a position of peril and that they would make payments outside of escrow
directly to the Schofields unless promptly notified by the title company that the title was not
good.
Appellants confess frankly that they are unable to cite any cases in point. They urge
however that this court should impose upon the title company its duty to give prompt notice
under the circumstances and its liability in tort to appellants for its breach of that duty. They
urge that we so declare the law by analogy of the so-called insurance cases. Because we feel
that there is no analogy that may be drawn from the insurance cases as applied to the facts in
this case, we find it unnecessary to deal with those cases at length. It may be frankly conceded
that in a number of cases fire insurance companies have been held liable in tort for undue
delay in notifying an applicant of their rejection of his application for insurance. In an article
by Prof. William L. Prosser, the distinguished author of Prosser on Torts, appearing in Vol.
III, University of Chicago Law Review, 39, the author analyzes these cases as having been
determined under various theories: that since the company has solicited the offer and since
reasonable men would reject an offer promptly if there were no intent to accept it, its failure
to reject within a reasonable time may be held to be an acceptance; that it is bound by
principles of estoppel; that the duty of prompt notice results from the franchise issued to the
company by the state; that its business is affected with a public interest; that once the
defendant has entered upon the undertaking by some affirmative act, he may be liable for
negligence if he abandons it or fails to use proper care. Estoppel, quasi contract and other
principles have been used. The author feels that more recent decisions have abruptly altered
the trend of those decisions, even though the doctrine itself {imposing liability for
unreasonable delay) is in turn of comparatively recent origin.
though the doctrine itself (imposing liability for unreasonable delay) is in turn of
comparatively recent origin. The author lists the states in which liability has been supported
and the jurisdictions in which it has been rejected. Apparently all cases pro and con up to the
time of the article were examined.
Dean Prosser's article, published in 1936, refers to an article by Mr. Carl W. Funk,
published in 75 University of Pennsylvania Law Review, 207, in 1927, which digests the
principal insurance cases appearing up to that time, and reaches the conclusion (id. 226) that
if a survey be made ten years hence, it will be found that the insurer, in the majority of
instances, will have been required to answer in damages for its negligent delay. Of interest
also is the annotation appearing in 32 A.L.R.2d 487.
As applied to the present appeal however, we are of the opinion that these articles and the
cases therein discussed are of academic interest only. There is a complete failure of analogy
to the present situation. Even in Mr. Funk's article the basis for fixing liability resulting from
delay in acting upon an application for insurance (whether in tort, quasi contract or any other
of the theories advanced) is that the failure of the insurer to decide or to inform the applicant
of its decision has prevented him from securing protection from another company. If [the
company] had acted promptly, the applicant would probably have been reimbursed for his
loss: for had it accepted the application, it would have been liable to him on the policy of
insurance; while had it rejected the proposal, the applicant might well have procured
protection elsewhere. We may accept the fact that insurance has come to play an extensive
part in our civilization and that the tendency leans more and more to shifting the burden of
loss due to accident or catastrophe from the shoulders of the individual to those of the
community or of a group within the community. See remarks of McNamee, C. J., speaking
for this court in Johnson v. Brown, 75 Nev. 437, 345 P.2d 754. But the reason behind all this
is that the individual applying for insurance must rely on such insurance as the only
protection available to him against possible loss.
insurance must rely on such insurance as the only protection available to him against possible
loss. That situation is entirely absent from the present case. Here the Taggarts held in their
own hands 100 percent insurance against loss resulting from failure of the sellers' title.
Nothing in the contract of sale or in the escrow instructions required them to make any
payments to the sellers before assurance of the title. They made the payments entirely at their
own risk. It is not even necessary to emphasize their failure to make inquiry of the title
company before making payments outside of escrow.
Nor is there any analogy from the cases cited by appellants in which liability has been
imposed in cases of bailment, agency, and possibly other situations. The judgment of the trial
court in denying relief was correct.
Affirmed with costs.
____________
76 Nev. 52, 52 (1960) Krick v. Krick
IRVING P. KRICK, Appellant, v.
JANE C. KRICK, Respondent.
No. 4225
January 29, 1960 348 P.2d 752
Appeal from judgment of the Eighth Judicial District Court, Clark County; David Zenoff,
Proceeding on husband's motion to enter satisfaction of judgment entered in a divorce
decree. From an order of the lower court denying the motion, the husband appealed. The
Supreme Court, Pike, J., held that under property settlement agreement incorporated in
divorce decree providing that monthly sums payable to wife were part of property settlement
and that such payments constituted a part of consideration received by wife for her release
and conveyance to husband of all community property claims and of all other claims to
property retained by husband and that such payments should be made during wife's life,
payments to wife were in lieu of property rights arising from marital relationship rather
than alimony and such payments did not cease upon wife's remarriage.
76 Nev. 52, 53 (1960) Krick v. Krick
community property claims and of all other claims to property retained by husband and that
such payments should be made during wife's life, payments to wife were in lieu of property
rights arising from marital relationship rather than alimony and such payments did not cease
upon wife's remarriage.
Judgment affirmed.
(Rehearing denied February 26, 1960.)
Norman Cornwall and Toy R. Gregory, of Las Vegas, for Appellant.
Goldwater, Singleton, Dickerson and Miles, of Las Vegas, for Respondent.
1. Divorce.
Statute providing that in event of subsequent remarriage of wife, all alimony awarded by divorce decree
shall cease, unless it shall have been otherwise ordered by the court, applies only to alimony awarded by
the decree. NRS 125.150.
2. Judgment.
Trial court's construction of its own decree must be given great weight in determining intent of the trial
court.
3. Divorce.
Under property settlement agreement incorporated in divorce decree providing that monthly sums
payable to wife were part of property settlement and that such payments constituted a part of consideration
received by wife for her release and conveyance to husband of all community property claims and of all
other claims to property retained by husband and that such payments should be made during wife's life,
payments to wife were in lieu of property rights arising from marital relationship rather than alimony and
such payments did not cease upon wife's remarriage. NRS 125.150.
4. Divorce.
When a court acquires jurisdiction of the parties and the subject matter in a divorce action, it may award
such alimony to wife and make such disposition of community property of the parties as shall appear
equitable and just, having regard to respective merits of parties and to condition in which they would be
left by such divorce. NRS 125.150, subd. 1.
5. Divorce.
Where parties, by stipulation, waived findings of fact and conclusions of law in divorce action and
husband took no action by way of appeal or motion to remedy provisions of divorce decree incorporating
property settlement, husband's failure to take any timely, appropriate action to effect modification or
deletion of such provisions was an indication of his consent thereto. NRS 125.150, subd. 1.
76 Nev. 52, 54 (1960) Krick v. Krick
OPINION
Appeal from order denying a motion to enter satisfaction of judgment.
The parties hereto were married in California on May 23, 1930 and separated about March
17, 1945.
On November 18, 1946 respondent, hereinafter referred to as wife, was granted a decree
of absolute divorce from appellant, hereinafter referred to as husband. Such decree awarded
to the wife the custody of the minor daughter of the marriage, then nine years of age, and
ratified, approved, and incorporated into the decree a property settlement agreement between
the parties dated July 24, 1945. The parties were ordered to comply with the terms and
conditions of such agreement.
Following the decree provisions just referred to, the decree provided as follows:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the provision
contained in Paragraph I of the property settlement agreement hereinabove set forth for the
payment of $750 monthly during the life of defendant and cross-complainant is a part of the
property settlement and that said monthly payments constitute a part of the consideration
received by defendant and cross-complainant for her release and conveyance to plaintiff and
cross-defendant of all community property claims to the Krick Weather Service, except as in
said agreement provided, and for her release and conveyance to plaintiff of all other claims to
the property retained by the plaintiff and cross-defendant, or hereafter acquired by him, and
that by reason of said facts, the order made herein required the payment of said monthly
payments hereafter may not be modified or changed in any particular, and said monthly
payments shall be made by plaintiff and cross-defendant to defendant and cross-complainant
during the defendant and cross-complainant's life.
Without affecting in any way the foregoing provisions of this decree with respect to the
finality of the order requiring the monthly payments of $750 to be made by plaintiff and
cross-defendant to defendant and cross-complainant, IT IS FURTHER ORDERED that until
the further order of the Court herein making other or different provision for the support,
maintenance, and education of the minor child of the parties hereto, one-third of each
monthly payment shall be fixed as the portion thereof payable for the support,
maintenance, and education of the minor child of the parties hereto.
76 Nev. 52, 55 (1960) Krick v. Krick
made by plaintiff and cross-defendant to defendant and cross-complainant, IT IS FURTHER
ORDERED that until the further order of the Court herein making other or different provision
for the support, maintenance, and education of the minor child of the parties hereto, one-third
of each monthly payment shall be fixed as the portion thereof payable for the support,
maintenance, and education of the minor child of the parties hereto. The making of other
provision for the support, maintenance, and education of said minor child, or any change
which hereafter may be made in the apportionment of said monthly payment fixed as the
amount payable for the support, maintenance, and education of said minor child, or the
termination of the obligation to support, maintain, and educate said minor child through her
death, marriage, or attaining of majority, shall not in any way affect the requirement of this
decree for the payment to defendant and cross-complainant during her life of the full amount
of the monthly payment of $750 provided for by way of property settlement in said
agreement. (Italics supplied.)
Subsequent to the remarriage of the wife on October 24, 1956, and the attainment of her
majority by the daughter on December 9, 1957, the husband moved the trial court to enter
satisfaction of judgment based upon the wife's remarriage and the child's becoming of legal
age. Such motion was made pursuant to Rule 60 (b) (4) NRCP.
1
The husband appeals from
the order of the trial court entered on April 6, 1959 denying such relief to the husband.
[Headnote 1]
The husband contends that the payments required to be made by him to the wife under the
above quoted provisions of the decree were alimony as contrasted with payments made in
connection with a settlement of property rights between the parties, and that his obligation to
make further payments terminated upon the wife's remarriage.
____________________

1
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a
final judgment, order or proceeding for the following reasons: * * * (4) the judgment has been satisfied. * * *.
76 Nev. 52, 56 (1960) Krick v. Krick
remarriage. Appellant cites NRS 125.150 which read in part, In the event of * * * the
subsequent remarriage of the wife, all alimony awarded by the decree shall cease, unless it
shall have been otherwise ordered by the court. The quoted statutory provision, however,
applies only to alimony awarded by the decree. The decree does not order the husband to
pay alimony but, on the contrary, provides that the monthly sums to be paid by the husband
under the terms of the property settlement agreement, are * * * a part of the property
settlement and that said monthly payments constitute a part of the consideration received by
[the wife] for her release and conveyance to [the husband] of all community property claims
to the Krick Weather Service, * * * and for her release and conveyance to [the husband] of all
other claims to the property retained by [the husband] or hereafter acquired by him, and that
by reason of said facts, * * * said monthly payment shall be made by [the husband] to [the
wife] during [the wife's] life.
[Headnote 2]
The husband's motion, seeking relief from making further payments, was presented to the
trial court nearly 12 years after the entry of the decree. During the interim the husband had
complied with the decree provisions requiring monthly payments by him. Upon the hearing of
the husband's motion the trial court was required to construe the language of its own decree,
and such construction must be given great weight in determining the intent of the trial court
with which we are here concerned. Wilde v. Wilde, 74 Nev. 170, 326 P.2d 415. The trial
court, in denying the motion, construed the decree to provide that the monthly payments shall
be made by the husband during the wife's lifetime.
[Headnote 3]
We agree with this conclusion of the lower court. In view of the above quoted language
from the decree, which provides specifically that the monthly payment shall be made by the
husband during the wife's life, even though the monthly payments should be construed to be
alimony, NRS 125.150 would not be authority for the payments to cease upon the wife's
remarriage, as here the trial court "otherwise ordered" that the payments continue during
the wife's life.
76 Nev. 52, 57 (1960) Krick v. Krick
the payments to cease upon the wife's remarriage, as here the trial court otherwise ordered
that the payments continue during the wife's life.
The record shows that at the trial on the merits of the divorce case, the husband and the
wife had settled their property rights by the agreement above mentioned, and that each had
been represented by independent counsel in its execution and preparation. He also testified
that he considered that the agreement was fair, just and equitable. As indicative of the intent
of the parties with reference to the settlement of property rights and the period through which
monthly payments should continue, certain recitals and provisions of the agreement are
significant. The document entitled Property Settlement Agreement, after referring to the
marital differences of the parties causing them to separate, recites, that the wife has agreed to
accept certain real and personal property, cash and securities, and provisions made therein for
her support and the support of the minor child in lieu of all other provisions for her
maintenance and support and in full payment of all claims of any property then owned or to
be later acquired by the husband. As to the support provisions the agreement provides that the
husband pay to the wife * * * the sum of $750 per month commencing August 24, 1945 and
to continue monthly thereafter during the life of the wife. While it is true that the agreement
provides that the monthly payments shall be made for the support of the wife and for the
support of the minor child, this language must be reconciled with the provisions of the
agreement for division of property, and the agreement must be considered as a whole. Fox v.
Fox, 42 Cal.2d 49, 265 P.2d 881.
The California Supreme Court in Hilton v. McNitt, 49 Cal.2d 79, 315 P.2d 1, had before it
sec. 139 of the California Civil Code, which was amended in 1951. That section, before such
amendment, provided that upon the remarriage of the wife the husband should no longer be
obligated to provide for her support, and the 1951 amendment added the language, except as
otherwise agreed by the parties in writing.
NRS 125.150 provides that all alimony awarded by the decree shall cease upon the
subsequent remarriage of the wife, "* * * unless it shall have been otherwise ordered by
the court."
76 Nev. 52, 58 (1960) Krick v. Krick
the decree shall cease upon the subsequent remarriage of the wife, * * * unless it shall have
been otherwise ordered by the court.
Thus, the California statute as amended recognizes the right of the parties by written
agreement to modify the effect of the provisions of sec. 139, California Civil Code, as they
existed prior to said amendment, while the Nevada statute provides that its limitation of
payments by the husband until the wife's remarriage shall control, unless the court otherwise
orders.
The Hilton case, therefore, is distinguishable. The Supreme Court of California therein
determined that the monthly payments were for support and maintenance or alimony and
ceased on the remarriage of the wife or death of the husband, because there was no agreement
to the contrary in writing.
In the present case we hold the payments did not cease because, pursuant to our statute, the
trial court otherwise ordered, and furthermore they were in lieu of property rights arising
from the marital relationship rather than alimony.
It must be noted that the court in the Hilton case stated that under the California statute
provisions in a property settlement agreement or in a decree for support and maintenance
terminate on death or remarriage unless there is a provision in the agreement or decree which
negates the intention that the payments should so terminate. The converse of this rule is
clearly to the effect that such payments do not cease if the parties in California otherwise
agree in writing or in Nevada if it is otherwise ordered by the court. To this extent the Hilton
case is authority for our conclusions herein.
Appellant contends that the portion of the decree requiring the monthly payments
above-quoted in this opinion are void as exceeding the jurisdiction of the court, because they
were not responsive to any issue raised by the pleadings or the evidence and are not in accord
with the minute order of the court in the divorce proceedings at the trial on the merits. We
must reject this contention. Ex Parte Weiler, 106 Cal.App. 485, 289 P. 645.
76 Nev. 52, 59 (1960) Krick v. Krick
[Headnote 4]
When a court acquires jurisdiction of the parties and the subject matter in a divorce action,
NRS 125.150, subd. (1), authorizes it to award such alimony to the wife and to make such
disposition of community property of the parties as shall appear equitable and just, having
regard to the respective merits of the parties and to the condition in which they will be left by
such divorce.
In Dutertre v. Shallenberger, 21 Nev. 507, 34 P. 449, 450 (approved in Dillon v. Dillon, 68
Nev. 151, 227 P.2d 783), this court held that, upon all facts properly pleaded, in the absence
of any express findings, this court will imply a finding in favor of the judgment of the trial
court.
[Headnote 5]
The record discloses that counsel for the parties, by stipulation, waived findings of fact
and conclusions of law. Appellant took no action by way of appeal or motion to remedy the
decree provisions now complained of. The record shows that the identical language likewise
appeared in an interlocutory decree of divorce granted to the wife in California prior to the
entry of the decree now under consideration. In that case the husband had been served with
process and had appeared and stipulated that the case might be tried as a default, which was
done. This last-mentioned circumstance merely accentuates plaintiff's knowledge of the
decree provisions just referred to. His failure to take any timely, appropriate action by appeal
or otherwise to effect their modification or deletion, is an indication of his consent thereto
and evidences the fact that, in entering into the agreement, he intended the payments to
continue during the lifetime of the wife, regardless of her remarriage or the maturity of the
child.
The order of the trial court denying appellant's motion for entry of satisfaction of judgment
is affirmed, with costs to respondent.
____________
76 Nev. 60, 60 (1960) Couturier v. Couturier
CLARE L. COUTURIER, Appellant, v. MARIELLEN
COUTURIER, Respondent.
No. 4228
January 29, 1960 348 P.2d 756
Appeal from the Eighth Judicial District Court, Clark County; David Zenoff, Judge,
Department No. 1.
Proceeding for modification of child custody provision of divorce decree. The trial court
rendered judgment for mother, and father appealed. The Supreme Court, Badt, J., held that
finding of change of circumstances warranting modification was supported by evidence and
introduction of mother's doctor's written report as to mother's mental and physical condition
was not objectionable where doctor was at all times available and subject to call for
cross-examination.
Affirmed.
Tad Porter, of Las Vegas, for Appellant.
Cornwall & Sullivan, of Las Vegas, for Respondent.
1. Divorce.
Trial court, which had parties before it on witness stand in proceeding for modification of child custody
provision of divorce decree, observed their demeanor, passed on their credibility, and was sole arbiter to
weigh and judge their testimony.
2. Divorce.
In proceeding for modification of prior decree of divorce by changing custody of four minor children of
parties from father to mother, evidence sustained finding of a change of circumstances warranting
modification.
3. Evidence.
In proceeding for modification of divorce decree by changing custody of four minor children of parties
from father to mother, introduction of report of doctor as to mother's mental and physical condition was not
objectionable on ground that it prevented cross-examination where doctor was at all times available and
subject to call.
4. Divorce.
Overruling of objection to supplemental affidavit in support of wife's motion for modification of custody
provisions of divorce decree on ground that it was redundant, immaterial, and untimely filed was not an
abuse of discretion.
5. Divorce.
Where 75 pages of testimony had been given in proceeding for modification of child custody provisions
of divorce, all material evidence in case had been adequately presented, five of
husband's witnesses had been examined, and counsel made an offer of proof so that
court knew nature of testimony to be presented by four additional witnesses of
husband, court did not abuse its discretion in informing parties that no further
evidence would be taken but that court was ready to make a decision.
material evidence in case had been adequately presented, five of husband's witnesses had been examined,
and counsel made an offer of proof so that court knew nature of testimony to be presented by four
additional witnesses of husband, court did not abuse its discretion in informing parties that no further
evidence would be taken but that court was ready to make a decision.
OPINION
This is an appeal from the lower court's order modifying a prior decree of divorce by
changing the custody of four minor children of the parties from the father to the mother, with
rights of visitation in the father. The former decree, pursuant to an agreement between the
parties, had awarded custody to the father, with rights of visitation in the mother.
The order modifying the decree with reference to custody was made upon the grounds that
since the divorce the circumstances of the mother had materially changed in that she had
remarried and could then provide the children with a good and comfortable home; that she
had recovered her health sufficiently to enable her to care properly for the children; that the
circumstances of the father had also materially changed in that he had remarried and his
present wife has four additional minor children under her care and control.
The specific errors assigned are: (1) in admitting in evidence a doctor's written report; (2)
in refusing to strike respondent's supplementary affidavit; (3) in limiting appellant's rebuttal;
(4) abuse of the court's discretion in modifying the decree because of insufficient evidence of
change of circumstances.
The task of this court in considering whether error was committed by the trial court in
these matters and whether, if so, they entitle appellant to a reversal, is a far less difficult one
than that of the trial court in passing on the motion to modify the custody provisions of the
decree.
We address our attention first to the contention that there was insufficient evidence of
change of circumstances. It is quite clear that the evidence discloses important and
significant changes.
important and significant changes. Following the entry of the decree of divorce, both parties
remarried. The husband, as noted, had been given the custody of the four minor children,
aged respectively, at the time of the motion, seven, six, four, and two. Approximately one
year has since elapsed, so that the children are now eight, seven, five, and three. The youngest
child, sadly, was born with one arm. The husband's present wife had three children by a
former marriage. In addition, the husband and his present wife have the care of a minor niece
of the husband's, so that the husband's household at the time of the filing of the motion
included eight minor children. At the time of the divorce respondent was working. At the
time of the present hearing she had remarried, her husband was working, and she was able to
devote her entire time to her household. The wife and her present husband now live in a three
bedroom house, with the grounds landscaped. At the time of the divorce the wife had been
mentally ill. On the occasion of the present hearing of the motion to modify the decree the
court ordered an examination of the wife by a psychiatrist and a physician. The psychiatrist
had left Las Vegas and made no examination or report. The physician made a report to the
effect that she had recovered her health sufficiently to enable her to care properly for the
children.
[Headnote 1]
At the hearing it developed that the parties were quite bitter toward each other, and the
testimony was in irreconcilable conflict on all points, except as to the affection of both parties
for their children and the desire of both parties to see that the children were properly cared
for, and except that each admitted that the other was a proper person to have the custody of
the children. Apparent in the case is the importance of the timeworn expression that the court
had the parties before it on the witness stand, observed their demeanor, passed on their
credibility, and was the sole arbiter to weigh and judge their testimony. The court's keen
desire to make such arrangement as seemed for the best interests of the children is manifest
throughout the hearing.
In modifying the decree and awarding custody to the mother, the court meticulously took
into consideration the matter of the school terms, school hours, the alternation of custody
accordingly, the particular times of custody of the youngest child Jani, the periods of
sleeping, eating, schooling, and medical care of said child, and her particular custody on
Sundays of each week if the parties did not otherwise agree. Similar provisions were made
with reference to the other three minor children. Specific provision was made for payments
by the husband to the wife during the periods when she had custody. Hospitalization was
taken into consideration and prior consultation before hospitalization provided for. Hours of
custody during Christmas were likewise considered. Special provisions forbade the parties
from influencing the minds of the children against the other parenteach parent bearing the
responsibility of such actions by the present respective spouses of the parties. Orders that the
parties refrain from personal contact indicate the bitterness that attended the attitude of each.
The same situation is manifest in forbidding each party to visit the children at the household
of the other without first obtaining consent from the other. The order requiring delivery of the
children in accordance with the decree in a clean condition, all clothing to be clean and well
maintained, reflects the testimony on these points. These and other provisions indicate the
difficult task presented to the trial court.
[Headnote 2]
The assignment of error that the finding of a change of circumstances warranting
modification is not supported by the evidence is without merit.
[Headnote 3]
A careful consideration of the other three assignments of error above mentioned leads to
the conclusion that they likewise are without merit. The main objection to the doctor's written
report was that it prevented cross-examination. The doctor was at all times available and
subject to call. At the time the written report was offered no reporter was present, and the
precise ground of the objection above stated appears for the first time in this appeal.
offered no reporter was present, and the precise ground of the objection above stated appears
for the first time in this appeal. The report had been in appellant's hands several weeks prior
to the hearing and he had ample opportunity to provide for the doctor's appearance for
cross-examination. Nothing in the record indicates that appellant contends that the doctor's
report of the wife's present mental and physical condition is inaccurate. Appellant's only
explanation of his failure to call the doctor for cross-examination is that he feared he might be
bound by the doctor's testimony and could not safely subject his rights to this possibility. This
explanation lacks persuasion.
[Headnote 4]
On the second day of the hearing the wife filed a supplemental affidavit in support of her
motion for modification. Objection to this was on the ground that it was redundant,
immaterial, and untimely filed. We are unable to find any abuse of discretion in the court's
overruling of this objection.
[Headnote 5]
After the wife rested, the husband examined five witnesses. He had four more ready to
testify, at which point the court informed the parties that no further evidence would be taken
but that the court was ready to make a decision. The record contains some 75 pages of
testimony. Both parties have discussed at length the application of the various rules as to the
court's discretion in limiting the number of witnesses on some particular main or collateral
issue and the time and conditions under which such limitations may be ordered. Appellant
refers us to general text discussions appearing at 17A Am.Jur. 40, Divorce and Separation,
sec. 850; 27B C.J.S. 572, Divorce, sec. 317 (8); 88 C.J.S. 202, Trial, sec. 92 (b), and id. sec.
92 (d). A discussion of the subject, with its various rules, limitations, and exceptions, is not
warranted. It is clear that the court felt that all material evidence in the case had been
adequately presented, and that the testimony of the additional witnesses would not
materially add to the court's understanding of the facts.
witnesses would not materially add to the court's understanding of the facts. This is
particularly so because counsel made an offer of proof so that the court knew the nature of the
testimony to be presented by these witnesses. We cannot say that the court abused its
discretion in limiting the number of appellant's witnesses under the conditions described.
The order modifying the divorce decree with reference to the custody of the children is
affirmed with costs.
____________
76 Nev. 65, 65 (1960) Kelley v. State
DON KELLEY and ROBERT EDMOND BLACK, Appellants, v. THE STATE OF
NEVADA, Respondent.
No. 4205
February 5, 1960 348 P.2d 966
Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,
Department No. 2.
Defendants were convicted of an attempt to obtain money by false pretenses and from the
judgment of the trial court the defendants appealed. The Supreme Court, McNamee, C. J.,
held, inter alia, that in prosecution for presenting a fraudulent keno ticket with intent to cheat
wherein it was shown that defendants in conspiracy marked a winning ticket after the winning
numbers were known in order to defraud operator of $25,000 which would have been the
reward if ticket had been properly marked and paid for prior to the drawing, defendants at
time of attempted fraud were not engaged in playing a lottery, which is defined as a game
of chance, since they gave no money or other consideration for the ticket, and hence
defendants were not precluded from being convicted on theory that act complained of was
done during progress of a game which was illegal because it constituted a lottery.
was done during progress of a game which was illegal because it constituted a lottery.
Affirmed.
Harry E. Claiborne, of Las Vegas, and John Squire Drendel, of Reno, for Appellants.
Roger D. Foley, Attorney General, William J. Raggio, District Attorney, Drake DeLanoy,
Deputy District Attorney, and Eric L. Richards, Deputy District Attorney, of Reno, for
Respondent.
1. Criminal Law.
Statutes providing for order of trial in criminal cases are for purpose of informing jury of charge against a
defendant and issues which it is to decide. NRS 175.165.
2. Criminal Law.
Reading of amended information and pleas thereto to jury after trial was in progress and testimony had
been received in evidence constituted technical error, but was not prejudicial under the facts. NRS
175.165.
3. Criminal Law.
In prosecution for presenting a false and fraudulent keno ticket with intent to defraud, refusal to give
defendants' proposed instructions pertaining to whether game of keno was illegal as being a lottery was not
error where there had been no instruction given by court pertaining to lotteries. NRS 175.260, 205.380,
208.070.
4. Criminal Law.
In prosecution for presenting a fraudulent keno ticket to a corporation with intent to defraud such
corporation, defendants were not prejudiced by admission of copy of license issued to corporation by State
Tax Commission to operate a keno game because exhibit was not certified precisely in manner provided by
statute where documents attached to exhibit were other records of Gaming Control Board, one of which
showed a computation of gaming taxes paid by the corporation, and exhibit and documents were irrelevant
to sole issue whether defendants attempted to obtain money by false pretenses. NRS 49.050.
5. Criminal Law.
An objection to admission of evidence made for the first time on appeal will not be considered.
6. Criminal Law.
In prosecution for presenting a fraudulent keno ticket with intent to defraud a corporation, admission of
two keno tickets, one of which was the false token which the statute required as evidence before conviction
could be had and the other being its companion ticket was not error where evidence was ample to show the
relationship to the fraud and constituted evidence material to other evidence in explanation of
how the fraud was committed.
material to other evidence in explanation of how the fraud was committed. NRS 175.260, 205.380,
208.070.
7. False Pretenses.
In prosecution for presenting a fraudulent keno ticket with intent to cheat wherein it was shown that
defendants in conspiracy marked a winning ticket after the winning numbers were known in order to
defraud operator of $25,000 which would have been reward if ticket had been properly marked and paid
for prior to the drawing, defendants at time of attempted fraud were not engaged in playing a lottery,
which is defined as a game of chance, since they gave no money or other consideration for the ticket, and
hence defendants were not precluded from being convicted on theory that act complained of was done
during progress of a game which was illegal because it constituted a lottery. NRS 175.260, 205.380,
208.070, 462.010.
OPINION
Appellants, hereinafter called defendants, were convicted by a jury of an attempt to obtain
$25,000 by false pretenses, the amended information charging that they presented a false and
fraudulent keno ticket to Beck Corporation in Reno with the intent to cheat and defraud said
corporation.
1. Defendants claim that the court should have declared a mistrial because the amended
information and pleas thereto were read to the jury after the trial was in progress and
testimony had been received in evidence.
NRS 175.165 requires that after a jury has been impaneled and sworn, the trial shall
proceed in the following order: The clerk must read the [amended] information and state the
pleas of the defendants to the jury. Thereafter the counsel for the state must offer the evidence
in support of the charge.
It was technical error for the court to disregard these mandatory statutory provisions.
It thus becomes necessary to determine whether defendants were prejudiced thereby.
In People v. Sprague, 53 Cal. 491, the clerk did not read the information nor state the
defendant's plea to the jury at any time after it was impaneled as was required by a statute
identical with NRS 175.165.
required by a statute identical with NRS 175.165. The California Supreme Court there held:
There can be no doubt that the jury were fully informed from the commencement of the
trial of the precise charges against the defendant, and of the issue raised by his plea of not
guilty.'
The departure from the form or mode of presenting the issue prescribed by statute did not
prejudice or tend to prejudice the defendant in respect to a substantial right, and it is therefore
the duty of this Court to give judgment without reference to an irregularitythe result of such
departure.
[Headnotes 1, 2]
Statutes providing for the order of trial in criminal cases are for the purpose of informing
the jury of the charge against a defendant and the issues which it is to decide. State v.
Spencer, 101 Utah 274, 117 P.2d 455. The record before us discloses that the state's attorney
read the amended information to the prospective jurors before they were impaneled and that
he stated that it was a mere accusation on the part of the state, and that the defendants would
have an opportunity to answer the charge. During the progress of the trial the defendants
moved for a mistrial on the ground that NRS 175.165 had not been complied with in that the
amended information had not been read nor the pleas thereto stated to the jury after its
empanelment. Upon the denial of the motion for mistrial, the amended information, over the
objections of the defendants, was then read and the pleas of the defendants were stated to the
jury. Thereafter the amended information and the pleas thereto were embodied in one of the
court's instructions, and by another instruction the court informed the jury of the nature of an
information and of a plea.
Under the circumstances of this case defendants were not in any manner prejudiced by said
technical error. State v. Ayres, 70 Ida. 18, 211 P.2d 142.
[Headnote 3]
2. Defendants contend that the trial court erred in refusing to give certain instructions
pertaining to the proposition of whether or not the game of keno was illegal as being a
lottery.
proposition of whether or not the game of keno was illegal as being a lottery. As hereinafter
stated, we are not concerned under the facts of this case with the legality of the game of keno.
People v. Carpenter, 141 Cal.App.2d 884, 297 P.2d 498. There had been no instruction given
by the court pertaining to lotteries. It was not error therefore to refuse to give defendants'
proposed instructions bearing on that subject. State v. Moore, 48 Nev. 405, 233 P. 523.
[Headnotes 4, 5]
3. Error is claimed because the court received in evidence state's Exhibit M, together with
the material attached thereto, over the objection of the defendants that no proper foundation
therefor had been laid. Exhibit M was a copy of the license issued to Beck Corporation by the
State Tax Commission to operate a keno game. Because this exhibit was not certified
precisely in the manner provided by NRS 49.050, defendants objected to its admission in
evidence on the ground that a proper foundation therefor had not been laid. It does not appear
that defendants were in any way prejudiced by the faulty certificate.
The documents attached to said exhibit were other records of the Gaming Control Board,
one of which showed a computation of the gaming taxes paid by Beck Corporation. The
exhibit and documents were irrelevant to the sole issue in the case, to wit, whether or not
defendants attempted to obtain money by false pretenses. In reading the record on appeal
herein it cannot fairly be maintained that the trial court had an opportunity to rule on any
objection to Exhibit M other than the objection that the proper foundation therefor had not
been laid. In defendants' reply brief filed in this court they even assert that defense counsel
could have made no other objection than that no foundation had been laid for the introduction
of this [exhibit]. The claim now being made in this court that Exhibit M was prejudicial as
being immaterial was not asserted in the court below. Such objection made for the first time
on appeal will not be considered. State v. Moore, supra; Gooch v. Sullivan, 13 Nev. 7S; In Re
Bennett's Estate, Okl., 324 P.2d S62; Bower v. Tebbs, 132 Mont. 146, 314 P.2d 731; 3
Am.Jur., Appeal and Error, sec.
Gooch v. Sullivan, 13 Nev. 78; In Re Bennett's Estate, Okl., 324 P.2d 862; Bower v. Tebbs,
132 Mont. 146, 314 P.2d 731; 3 Am.Jur., Appeal and Error, sec. 353, n. 12.
[Headnote 6]
4. Defendants' next assignment of error is that the trial court erred in receiving in evidence
state's Exhibits F and G. These were the two keno tickets, one of which was the false token
which NRS 175.260 required as evidence before a conviction could be had for the offense
charged, and the other was its companion ticket. The evidence was ample to show their
relationship to the fraud, and they constituted evidence material to other evidence in
explanation of how the fraud was committed. Objections thereto were properly overruled and
the motion to strike the same was properly denied.
[Headnote 7]
5. The main assignment of error is based on defendants' contention that they cannot be
convicted of an attempt to obtain money by false pretenses when the act complained of is
done during the progress of a game which is illegal because it constitutes a lottery.
The evidence in the record is sufficient to prove all the elements of the crime of attempt to
obtain money by false pretenses required for conviction under NRS 175.260 and NRS
205.380 which relate to obtaining money by false pretenses, and by NRS 208.070 relating to
attempts. Under such circumstances there remains to consider only the contention that the
defendants are absolved from guilt because the game as played was illegal.
In Horton v. State, 85 Ohio St. 13, 96 N.E. 797, 39 L.R.A., N.S., 423, it was held that it is
no defense to a charge of obtaining money by false pretenses that the transaction in which the
money was so obtained was unlawful. The court in this case considered the fact that this rule
is sustained by the authorities in Massachusetts, California, Michigan, Texas, Colorado, and
Pennsylvania. It recognized that a different rule prevails in New York and Wisconsin but
pointed out that the New York Court of Appeals in People v. Tompkins, 1S6 N.Y. 413, 79
N.E. 326, 12 L.R.A. {N.S.) 10S1, questions the soundness of its rule and that it "is at
variance with a more reasonable view and the decisions in at least 12 states."
York Court of Appeals in People v. Tompkins, 186 N.Y. 413, 79 N.E. 326, 12 L.R.A. (N.S.)
1081, questions the soundness of its rule and that it is at variance with a more reasonable
view and the decisions in at least 12 states. [85 Ohio St. 13, 96 N.E. 799.] The court in the
Tompkins case then went on to quote from another decision:
We know that a feeling prevails to some extent in the community that it is unjust that one
offender should be punished and his co-offender obtain immunity. This feeling is absolutely
unreasonable. Where one offender is punished and another escapes, there may properly be a
feeling of dissatisfaction, but the dissatisfaction should not be because one man is in prison,
but because the other man is out. [186 N.Y. 413, 79 N.E. 327.]
The question of allowing a personal remedy to the victim in these cases is an entirely
different matter and one with which we are not concerned herein.
That the New York and Wisconsin rule in applying the doctrine of particeps criminis in the
administration of criminal law is not the weight of authority and is not in harmony with
modern thinking is demonstrated by an exhaustive opinion in the case of State v.
Mellenberger, 163 Ore. 233, 95 P.2d 709, 128 A.L.R. 1506.
For the reasons aforesaid we would be constrained to follow the majority view, were it
necessary to determine whether the game of keno is a lottery.
Here it was shown that the defendants in conspiracy marked a winning ticket after the
winning numbers were known in order to defraud the operator of the game of $25,000 which
would have been the reward if the ticket had been properly marked and paid for prior to the
drawing.
NRS 462.010 defines a lottery as any scheme for the disposal or distribution of property,
by chance, among persons who have paid or promised to pay any valuable consideration for
the chance of obtaining such property, or a portion of it, or for any share or any interest in
such property upon any agreement, understanding or expectation that it is to be distributed or
disposed of by lot or chance, whether called a lottery, raffle or gift enterprise, or by
whatever name the same may be known."
by lot or chance, whether called a lottery, raffle or gift enterprise, or by whatever name the
same may be known.
The defendants at the time of the attempted fraud were not engaged in playing a lottery
which is defined as a game of chance. People v. Carpenter, supra. They gave no money or
other consideration for the ticket.
As in the Carpenter case, the defendants by their own acts eliminated the element of
chance and they cannot therefore successfully maintain that the game was a lottery. There was
an attempt to take feloniously the property of another by false and fraudulent representations,
which is criminal under our statutes.
Affirmed.
____________
76 Nev. 72, 72 (1960) Titanium Metals Corp. v. District Court
TITANIUM METALS CORPORATION OF AMERICA, A Delaware Corporation,
Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA,
Respondent.
No. 4265
February 17, 1960 349 P.2d 444
Original proceeding by plant owner for writ of prohibition to prevent court from
proceeding with civil actions on ground that it had no jurisdiction. The Supreme Court,
McNamee, C. J., held that where plant owner in connection with expansion of same entered
into contract whereby general contractor agreed to supply labor and materials in connection
with plant expansion but only 46 percent of all work and materials furnished for project was
provided by general contractor and the balance was supplied by owner who used employees
directly on its payroll and other separate subcontractors, owner was a general contractor or
principal employer which precluded general contractor's employee, who suffered injuries in
the course of his employment and accepted benefits under Industrial Insurance Act, from
recovering at common law from owner for injuries sustained.
employee, who suffered injuries in the course of his employment and accepted benefits under
Industrial Insurance Act, from recovering at common law from owner for injuries sustained.
Writ issued.
Vargas, Dillon & Bartlett and Alexander Garroway, of Reno, for Petitioner.
Foley Brothers, of Las Vegas, for Respondent.
Workmen's Compensation.
Where plant owner wishing to expand same entered into contract with general contractor for the
furnishing of labor and materials in connection therewith but only 46 percent of the work done and
materials furnished for expansion project was provided by such general contractor and the balance was
provided by plant owner using employees directly on its payroll and other subcontractors, plant owner was
a general contractor or principal employer precluding general contractor's employee, who suffered injuries
in course of employment and accepted benefits under the Industrial Insurance Act, from recovering at
common law from plant owner for injuries sustained. NRS 616.010 to 616.680, 616.085.
OPINION
Petitioner seeks a writ of prohibition to prevent the respondent court from proceeding with
two civil actions on the ground that it has no jurisdiction.
It appears from the verified petition that Titanium Metals Corporation of America, the
petitioner herein, entered into a written contract with Guy F. Atkinson Company whereby
Atkinson agreed to supply labor and materials in connection with petitioner's plant expansion
in Clark County, Nevada. It further appears that Lancaster and Bywater who had been hired
by Atkinson and who were the plaintiffs in said actions, after being injured filed claims under
the Nevada Industrial Insurance Act (NRS 616.010-616.680), and that payments have been
made by the Nevada Industrial Commission to each plaintiff. A copy of the said contract is
attached to the petition along with an affidavit of one McLaughlin, the chief engineer of
petitioner, and they constitute the sole evidence before us in this proceeding.
to the petition along with an affidavit of one McLaughlin, the chief engineer of petitioner, and
they constitute the sole evidence before us in this proceeding.
The allegations of the petition are denied by respondent's unverified answer, and no
evidence in the form of affidavit or otherwise has been presented in opposition to the petition.
The sole question arising from the petition is whether petitioner is protected by the Nevada
Industrial Insurance Act from common law liability for negligence resulting in injury to said
Lancaster and Bywater.
NRS 616.085 provides: Subcontractors and their employees shall be deemed to be
employees of the principal contractor.
It thus becomes necessary for this court to determine whether under the uncontradicted
facts before us the relationship between Titanium and Atkinson was that of principal
contractor and subcontractor.
The nature of the relationship fully appears from the contract between the two companies
and the McLaughlin affidavit.
The said contract was entitled Construction Management Agreement. Its provisions in
part required Atkinson to furnish labor, materials, designing, and engineering and generally
to do all things that are necessary for the proper construction and completion of the work as
required by the owner (Titanium). The owner was empowered to determine the scope of the
work, to make changes therein, to require additional work, and to direct the omission of work
previously ordered. For its services Atkinson was to receive specified fees, and was to be
reimbursed for specified items including labor costs paid by it, social security, old age benefit
taxes, pension funds, health, welfare and other taxes related to labor. Such payments by
Titanium to Atkinson were to be made monthly. Either party could terminate the contract on
30 days' notice.
The McLaughlin affidavit states that petitioner is a contractor licensed by the State of
Nevada, and that under said Construction Management Agreement it was a principal
contractor for the work being done for it by Atkinson, and that Atkinson was a subcontractor;
that it was not intended that Atkinson provide all the work done and materials furnished
for the expansion project, nor did it do so; that only 46 percent of the project was
provided by Atkinson; that the other 54 percent was provided by Titanium who used
employees directly on its payroll, and in addition thereto brick work and other separate
parts of the expansion project were done under subcontracts; that Titanium was an
employer of workmen directly employed by it in said plant and that it was subject to the
Nevada Industrial Insurance Act at the time of the accident.
was not intended that Atkinson provide all the work done and materials furnished for the
expansion project, nor did it do so; that only 46 percent of the project was provided by
Atkinson; that the other 54 percent was provided by Titanium who used employees directly
on its payroll, and in addition thereto brick work and other separate parts of the expansion
project were done under subcontracts; that Titanium was an employer of workmen directly
employed by it in said plant and that it was subject to the Nevada Industrial Insurance Act at
the time of the accident.
We conclude that the said contract and affidavit bring this case squarely under the ruling in
Simon Service v. Mitchell, 73 Nev. 9, 307 P.2d 110. There this court held that where a
defendant owner, in constructing a building, entered into separate contracts, the fact that
defendant was a general contractor or principal employer would preclude an employee of
another contractor who suffered injuries in the course of his employment and accepted
benefits under the Industrial Insurance Act from recovering at common law from defendant
for the injuries sustained.
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 * * * and also to be engaged for the time being in the business of
constructing the building. Bello v. Notkins, 101 Conn. 34, 124 A. 831, 832.
In the Simon Service case the defendant was the owner, as is petitioner here, and we said
in that case when that owner assumed an additional status * * * of being principal employer
or principal contractor, he was not eliminated [from the Industrial Insurance Act] just because
he was also the owner. [73 Nev. 9, 307 P.2d 113.] The fact that the contract in its first
paragraph designated the petitioner as owner and Atkinson as principal contractor would not
affect their actual relationship as shown by the evidence.
The lower court is without jurisdiction to proceed in the common law actions because
the plaintiffs therein are limited to the compensation provided by the Industrial Insurance
Act.
the common law actions because the plaintiffs therein are limited to the compensation
provided by the Industrial Insurance Act.
Let the writ of prohibition issue.
____________
76 Nev. 76, 76 (1960) Ex Parte Reid
In the Matter of the Petition of DALLAS WENDELL REID For Review of Bar Examination,
1958.
No. 4174
February 23, 1960 349 P.2d 446
Proceeding in the matter of the application of Dallas Wendell Reid for a license to practice
law.
Petitioner filed a petition in the Supreme Court for review of recommendation of the
Board of Bar Examiners that petitioner be denied admission to the State Bar of Nevada
because he failed to obtain passing grade in bar examinations. The Supreme Court, Badt, J.,
held that petitioner failed to establish that he was prevented from passing the examinations
through fraud, imposition, and coercion, and was deprived of a fair opportunity to take the
examinations.
Petition dismissed.
(See also 75 Nev. 84, 335 P.2d 76.)
Petitioner in Pro. Per.
Richard W. Blakey, Chairman, Board of Bar Examiners, of Reno, for State Bar of Nevada.
1. Attorney and Client.
Petitioner, who had practiced law in several jurisdictions for 21 years, and who was denied admission to
State Bar of Nevada because he did not pass written bar examinations, was not unfairly examined because
he was required to answer questions in academic examinations identical with questions propounded to a
law student recently graduated from academic study of law without any weight being given to his learning,
training, and ability as reflected by his background in the active general practice of law.
Where petitioner was denied admission to the State Bar of Nevada because he did not obtain passing
grade in written bar examinations, it was immaterial that Board of Bar Examiners refused to consider
additional data, which petitioner and other attorneys from other jurisdictions seeking admission in Nevada
were required to submit.
On petition in Supreme Court by petitioner to review recommendation of Board of Bar Examiners that
petitioner be denied admission to the State Bar of Nevada because he failed to obtain passing grade in bar
examinations, Supreme Court would not undertake to examine all of petitioner's answers to all of the
questions in the six examinations.
Denial of admission of petitioner to the State Bar of Nevada because he did not have a passing grade in
bar examinations was not improper because each examination paper was graded as a whole without each
question in the examinations being graded.
Denial of admission of petitioner to the State Bar of Nevada because he failed to obtain passing grade in
written bar examinations was not improper because an attorney had sent a letter to Board of Bar Examiners
accusing petitioner of practicing law in Nevada without a license, where it was not shown that any member
of the Board of Bar Examiners had any knowledge of such letter at time he graded petitioner's papers, and
it was shown that at time of grading the petitioner and other applicants were unknown to examiners other
than by number.
Denial of admission of petitioner to the State Bar of Nevada because he failed to obtain passing grade in
written bar examinations was not improper merely because Board of Bar Examiners gave no oral
examination.
OPINION
The above-captioned matter is before us on a petition for review of the recommendation of
the Board of Bar Examiners that Dallas Wendell Reid be denied admission to the State Bar of
Nevada.
Mr. Reid was 27th in rank in a class of 29 that took the 1958 Nevada State Bar
examinations. Twenty-two of the 29 passed the examination. The passing grade was
established many years ago as 75 percent and was in effect at the time. Mr. Reid's
average grade on all of the examinations taken was 70.4 percent.
established many years ago as 75 percent and was in effect at the time. Mr. Reid's average
grade on all of the examinations taken was 70.4 percent. This resulted from the following
respective grades on all examinations: examination No. 1, 70 percent, examination No. 2, 73
percent, examination No. 3, 74.2 percent, examination No. 4, 64.8 percent, examination No.
5, 72.6 percent, and examination No. 6, 68 percent. It thus appears that petitioner did not
receive a passing grade in any of the subjects covered by the six separate written
examinations.
In his amended petition for review and in his oral presentation thereof in his own behalf
petitioner alleged that he was prevented from passing the examination through fraud,
imposition, and coercion, and was deprived of a fair opportunity to take the examination.
Specifically, reliance was placed upon the following contentions:
[Headnote 1]
(1) Petitioner was required to answer questions in an academic examination identical with
the questions propounded to law students recently graduated from the academic study of the
law, which examination was not a fair test, standing alone, of petitioner's learning, training,
and ability as reflected by his background of more than twenty years in the active general
practice of the law.
Many years ago our rules did indeed provide for a different and limited examination of
attorneys from other jurisdictions who sought admission to practice in this state. California
and possibly other jurisdictions still so provide. However, it now is and has been for a great
many years the rule and practice in this state that attorneys from other jurisdictions seeking
admission here must take the same academic examinations as all other applicants.
[Headnote 2]
(2) Attorneys from other jurisdictions seeking admission here are required to submit
additional data: a certificate of the clerk of the court in the state in which the applicant last
practiced certifying to his good standing in that state, the non-pendency of any
disbarment proceedings, a letter from the secretary of the local bar association of the
applicant's last place of residence certifying to his good moral character, a letter of
recommendation from the judge of the court of record before which he last practiced, and
other evidence of good moral character and fitness.
the applicant last practiced certifying to his good standing in that state, the non-pendency of
any disbarment proceedings, a letter from the secretary of the local bar association of the
applicant's last place of residence certifying to his good moral character, a letter of
recommendation from the judge of the court of record before which he last practiced, and
other evidence of good moral character and fitness. Petitioner asserts that he not only
submitted this required information but that the same showed definitely his successful
practice in several jurisdictions for over 21 years. He asserts that he was fraudulently
deprived of the benefit of this evidence by the refusal of the Board of Bar Examiners to give
it any consideration. In reviewing the application of William L. Hughey for a license to
practice law, 62 Nev. 498, 156 P.2d 733, this court noted that the petitioner questioned the
rules of procedure which will not allow the board to weigh, with the academic examination,
the personalities and backgrounds of the applicants. This it rejected as any ground for
reversing the recommendation of the board, saying: With respect to applicant's contention
that the personality and background of an applicant should be weighed along with the written
examination, it is sufficient to say that the general qualifications of an applicant will not be
substituted for the requisite knowledge of law which one must possess in order to be admitted
into the legal profession. Accord: In Re Loer, 68 Nev. 1, 226 P.2d 272. There, as here, the
board's recommendation that the applicant be denied a license was based entirely upon his
failure to pass the written examination. Recourse to the information supplied by the National
Conference of Bar Examiners as to the applicant's ability and integrity would therefore, under
the rules, have added nothing to the situation.
[Headnote 3]
(3) During the oral presentation petitioner submitted to the court a transcript of all of his
answers to all of the questions in the six separate written examinations and asserted that even
a casual examination of his answers to questions selected at random would convince the
court that he was entitled to passing grades.
answers to questions selected at random would convince the court that he was entitled to
passing grades. Petitioner's request would require the court to examine all of his answers to
all of the questions in the six examinations. This, under the circumstances presented, we will
not undertake. In Re Hughey, supra.
[Headnote 4]
(4) Petitioner contends that because, in each examination, his paper was given a
percentage grade as a whole without giving a percentage grade to each of his questions, he
was in effect deprived of an opportunity to review the gradings, and therefore coerced into
accepting the abstract statement made by the Board of Bar Examiners that he failed to pass
the written examination. He argues in effect that the method used is contrary to all accepted
methods of grading and was grossly improper and prejudicial. It was the method adopted by
the Board of Bar Examiners for all 29 examinees at the 1958 examination and included the
seven who failed. It is the method followed in prior examinations for many years. The point
raised however is not entirely without merit. But while it does present to the unsuccessful
applicant a measure of difficulty in determining just which of his answers in a given
examination brought his average grade on that examination to a low level, the mere fact that
the examiner used separate notes for the grading of the individual questions, from which he
gave a grade to the paper as a whole, does not in itself cast any reflection on the fairness or
the accuracy of the grade allotted. This precise objection was heretofore rejected by this court.
In Re Myles, 64 Nev. 217, 180 P.2d 99.
(5) Petitioner asserts that the Board of Bar Examiners was biased and prejudiced against
him because the law partner of a member of the Board of Bar Examiners had accused
petitioner of practicing law in the State of Nevada without a license so to practice. No proof
was offered in support of this assertion.
[Headnote 5]
(6) Petitioner asserts further however that an attorney practicing in Clark County had
written a letter likewise accusing petitioner of practicing law in Nevada without a license;
that such letter had come to the attention of the Board of Bar Examiners and had
influenced one or more of them in the recommendation of the board to this court that
petitioner be denied a license to practice in this state.
without a license; that such letter had come to the attention of the Board of Bar Examiners
and had influenced one or more of them in the recommendation of the board to this court that
petitioner be denied a license to practice in this state. Such original letter was introduced in
evidence and did indeed make the accusation asserted. However, it was not shown that any
member of the Board of Bar Examiners had knowledge of such letter at the time he graded
applicant's papers. On the contrary, it was shown that at the time of such grading the
applicants were unknown to the examiners other than by number. When taking the
examination each applicant drew a number. These numbers, with the applicants' names, were
handed the secretary of the board and placed by him in a sealed envelope in his safe. The
secretary is not a member of the examining board. The names of the applicants, identified by
number, were not made known to the members of the board until after the completion of the
grading. It therefore appeared affirmatively that even if they had known of the letter in
question (of which fact the record is devoid of any proof), it could not have affected the
grades assigned.
[Headnote 6]
(7) Petitioner next refers to what formerly was designated as paragraph 5 of Rule I (now
Rule 50 S.C.R.) of the Rules of the Supreme Court, requiring the state Board of Bar
Examiners to conduct written and oral examinations of the applicant, the questions and
answers to be reduced to writing. He contends that because the Board of Bar Examiners gave
no oral examination, its recommendation that petitioner be not admitted leaves the grading of
his written examinations without force or effect in view of this direct violation of the rule.
His position apparently is that had he been permitted to take an oral examination, the same
would have at once demonstrated to the examiners his complete ability to pass an
examination in any subject concerning which he might be questioned. The assignment is
without merit. As he had failed to achieve a passing grade in any one of the six written
examinations, an oral examination could not have profited him.
In dismissing the application for review and for admission to practice notwithstanding the
adverse recommendation of the Board of Bar Examiners in In Re Myles, supra, this court
noted: The recommendation of the board that applicant be denied a license to practice law
was based entirely upon his failure to pass the written examination. [64 Nev. 217, 180 P.2d
101.] Likewise in In Re Hughey, supra, this court used precisely the same language.
1
It
would thus appear that the written examinations determining the academic qualifications of
the applicants as the basis for the Board's recommendation to the court have had the sanction
of this court for many years.
____________________

1
Our original statute governing admission of attorneys had no educational qualifications (Stats. 1861, p. 6),
but required applicants to produce satisfactory testimonials of good moral character and to undergo a strict
examination in open court as to his qualifications by one of the judges of the Supreme Court of this territory.
Section 5 of the original act also permitted admission by the district court of this territory under a like
showing. Several sections of this statute were amended in 1871, requiring an applicant to undergo only such
examination as the Supreme Court may direct, and providing that in its discretion such examination and
testimonials might be dispensed with. Cutting's Compiled Laws of Nevada, 1900, sec. 2614. In 1875 (Stats.
1875, p. 142) the Supreme Court on application of a district judge was required to appoint a committee to
examine applicants under rules and regulations to be prescribed by the Supreme Court and to report their
recommendations to the Supreme Court. Under Compiled Laws, sec. 2618, an attorney admitted in a sister state
could be admitted in Nevada upon his affidavit of such admission or upon submission of his license showing
such admission. This was carried forward into the Revised Laws of 1912 as sec. 504, with a slight amendment as
to admission of foreign attorneys. Since the enactment of the State Bar Act in 1928, now NRS 7.270 et seq.,
authorizing the Board of Governors, with the approval of the Supreme Court, to appoint a committee of bar
examiners, NRS 7.490, and the promulgation of former Rule I of the Rules of the Supreme Court (particularly
Rule 50 S.C.R.), it is doubtful that any oral examinations have been given save by Albert D. Ayres, Esq., when
acting as chairman of the Board of Bar Examiners (1934-1941), but those oral examinations were restricted for
the most part to the history of the United States and the history of the State of Nevada. There are not in the files
of the present Board of Bar Examiners or of the present Board of Governors or of the clerk of this court (since
the files of examinations have been kept by him since March 1951) any record of the transcript of questions and
answers of any oral examination. It may be accepted as a fact that for a great many years any resort to an oral
examination has been abandoned.
(8) Petitioner took the deposition of one of the members of the Board of Bar Examiners
and that deposition was introduced in evidence. The applicant examined such member at
considerable length as to how he formulated his questions in the examination subject
assigned to him. Petitioner severely criticized the method thus developed, but, without
discussing the question, we may simply express our conviction that the method was in all
respects proper.
Petitioner's oral argument developed sundry other complaints attacking the integrity,
motives, and good faith of the members of the Board of Bar Examiners and the members of
the State Bar of the State of Nevada in general, without any supporting evidence. With this
we do not find it necessary to deal.
The petition is dismissed.
____________
76 Nev. 83, 83 (1960) Western American Corp. v. American Universal
WESTERN AMERICAN CORPORATION, a Corporation, Appellant v. AMERICAN
UNIVERSAL INSURANCE COMPANY, Respondent.
No. 4237
February 23, 1960 349 P.2d 615
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge,
Department No. 1.
Action by insurer's subagent against insurer's general agent based on assignments of
insured's claim against general agent for return of premiums on insurance policies which were
cancelled. The trial court entered judgment for general agent, and subagent appealed. The
Supreme Court, McNamee, C. J., held that since insureds had received settlement in full of
their claims for refund of unearned premiums they had nothing to assign to subagent and
hence insureds could not confer on their assignee any greater right than possessed by
them.
nothing to assign to subagent and hence insureds could not confer on their assignee any
greater right than possessed by them.
Affirmed.
(Petition for rehearing denied March 4, 1960.)
Stewart, Horton and Free, of Reno, for Appellant.
Vargas, Dillon & Bartlett, and Alex. A. Garroway, of Reno, for Respondent.
Assignments.
Where insured had received settlement in full of their claims for refund of unearned premiums on
insurance policies which had been cancelled, insureds had nothing to assign to insurer's subagents, since
insureds could not confer upon subagents any greater right than that possessed by insureds, and therefore
subagents acquired no cause of action against general agent by reason of such assignments.
OPINION
Respondent is an insurance company authorized to write insurance in Nevada. Its general
agent for the Western States is Benson Company of Utah. Appellant as subagent for Benson
Company sold policies of respondent through appellant's own subagents. We are concerned
here with two such policies of respondent which were written by subagents of appellant. The
premiums thereon had been paid by each insured. Thereafter respondent cancelled said
policies and the return premium in each case was paid to the insured by appellant's subagents.
The practice had been for the subagents of appellant, when a policy was sold, to give credit
on their books for the premium to appellant's account. Appellant in turn credited Benson's
account, and Benson thereafter credited respondent's account. In each case the commission
was deducted. On a refund of premium the reverse took place. Monthly statements passed
between these parties in which all items were adjusted, and sometimes checks accompanied
the statements to satisfy the accounts.
checks accompanied the statements to satisfy the accounts.
After the cancellation of the said two policies, the credit balance in favor of appellant on
the books of Benson was some several thousand dollars which included the said two premium
refunds.
Approximately six months after appellant had received credit on Benson's books for said
refunds and each insured had received in full the refund from appellant's subagents, appellant
obtained from each insured a written assignment of any claim the insured had against
respondent for the return premium, and two separate suits were commenced in the court
below by appellant based on the two assignments. The trial court entered judgment for
respondent in each case on the ground that no claim existed which could be assigned.
1

The two appeals from said judgments have been consolidated for argument and decision.
It would appear that appellant, although paying to its subagents the unearned premiums
amounting to $6,539.44 (or giving them credit therefor) which amount was in turn paid to the
insureds received no reimbursement for this amount other than the credit on the books of
Benson. Appellant now contends that since Benson has not settled its account with appellant,
appellant should be able to recover this sum from Benson's principal, to wit, from respondent.
However, as stated above, suit was not based on that theory. The actions below were based
solely on the two assignments alleged in the complaints and the trial was limited to the issues
raised by such allegations. Respondent maintains that since the insureds had received
settlement in full of their claims for refund of the unearned premiums, they had nothing to
assign to appellant. This is of course correct. The insureds could not have sued respondent,
because their claims had been satisfied in full. They could not then confer on appellant, their
assignee, any greater right than that possessed by them.
____________________

1
The trial court gave two other reasons for its conclusion which are unnecessary to be considered on appeal.
Gate-Way, Inc. v. Hillgren D.C., 82 F. Supp. 546; Tillett v. Rodgers, D.C., 85 F.Supp. 356.
Appellant therefore acquired no cause of action against respondent by reason of the said
assignments.
Both actions affirmed with costs to respondent.
Badt, and Pike, JJ., concur.
____________
76 Nev. 86, 86 (1960) Hacienda Gift Shop v. Las Vegas Hacienda
HACIENDA GIFT SHOP, Inc., Appellant, v. LAS
VEGAS HACIENDA, Inc. Respondent.
No. 4220
February 26, 1960 349 P.2d 613
Appeal from judgment of the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge, Department No. 2.
Action against hotel corporation for specific performance of agreement to execute lease to
gift shop corporation. The trial court entered judgment for hotel corporation, and gift shop
corporation appealed. The Supreme Court, Pike J., held that entry into possession of portion
of hotel lobby, payment of rents, and purchase of merchandise by gift shop corporation, with
knowledge of hotel corporation, after receipt from third party, who allegedly was agent of
hotel corporation, of agreement to execute five-year lease with renewal option were just as
consistent with month-to-month tenancy as with a leasehold, and could not serve as basis for
ratification of third party's acts by hotel corporation.
Judgment affirmed.
Foley Bros., of Las Vegas, for Appellant.
Calvin C. Magleby, of Las Vegas, for Respondent.
1. Corporations.
In action against hotel corporation for specific performance of agreement to execute lease to gift shop
corporation, evidence supported finding that third party who wrote letter constituting
agreement to execute lease to gift shop corporation had no authority as agent to bind
hotel corporation.
evidence supported finding that third party who wrote letter constituting agreement to execute lease to gift
shop corporation had no authority as agent to bind hotel corporation. NRS 111.210.
2. Corporations.
Entry into possession of portion of hotel lobby by gift shop corporation, payment of rents, and purchase
of merchandise with knowledge of hotel corporation after receipt from third party, who allegedly was agent
of hotel corporation, of agreement to execute five-year lease with renewal options, were just as consistent
with month-to-month tenancy as with a leasehold, and could not serve as basis for ratification of third-party
acts by hotel corporation.
3. Evidence.
corporation which had entered into possession of portion of hotel lobby, paid rents, and purchased
merchandise with knowledge of hotel corporation after receipt from third party, who allegedly was agent of
hotel corporation, of the agreement, it was within power of trial court not to give credit to evidence offered
to show ratification by hotel corporation after claims to leasehold were asserted.
4. Corporations.
corporation, evidence did not compel finding precluding, under principles of estoppel, denial by hotel
corporation of authority of third party as agent to bind hotel corporation to the agreement.
OPINION
Appeal from judgment of the trial court, refusing to appellant specific performance of an
agreement to execute a lease.
Appellant corporation brought suit seeking a judgment requiring respondent hotel
corporation to execute a lease to appellant. Appellant takes this appeal from the judgment of
the trial court refusing such relief.
The trial court based its decision and judgment in favor of respondent on two grounds, one
of which was lack of authority on the part of one Jacob Kozloff to act as agent for respondent
in entering into the writing relied upon by appellant as constituting an agreement to enter into
a lease. The writing relied upon by appellant as a written memorandum of such nature as to
comply with the requirements of the statute of frauds1 was a letter dated July 6, 1956,
written to one George Altman.
as a written memorandum of such nature as to comply with the requirements of the statute of
frauds
1
was a letter dated July 6, 1956, written to one George Altman. Such letter written
and delivered to Altman by Kozloff at Altman's request stated that it confirmed their
conversations regarding a lease to Altman from the Hacienda Hotel for the operation of a gift
shop at such hotel. It stated that it was agreed that Altman was to have an adequate location
for the sale of items customarily sold in gift shops for a period of five years, with options to
renew, and that such agreement was to be reduced to writing in more final form on behalf of
the Hacienda Hotel. It also stated that the lessor would furnish all fixtures except the cash
register, and that rental would be based upon specified percentages of gross sales. The letter
stated that it would serve as the basis for the lease agreement so that Altman might rely on it
to purchase merchandise for sale.
So far as appears in the record, Altman, who was experienced in merchandising of the
indicated type, sought the lease for himself. Kozloff, during the period of his negotiations
with Altman, prior to July 6, 1956, had an agreement with respondent corporation and related
corporate and partnership entities interested in the hotel and its operation, that he would be
the lessee and operator of the casino at the new resort-type hotel. This agreement was,
however, conditioned upon Kozloff being licensed by the state gaming control authorities to
conduct the contemplated gaming operations.
Appellant contends in effect that Kozloff's relationship to the hotel during the period just
referred to, was likewise that of agent for the purpose of obtaining lessees of portions of the
lobby premises, to be used for various types of shops, including the gift shop now under
discussion.
____________________

1
NCL 1929, secs. 1529 and 1530, reading as follows: Every contract for the leasing for a longer period than
one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or
memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the
lease or sale is to be made.
Every instrument required to be subscribed by any person under the last preceding section may be
subscribed by the agent of such party lawfully authorized.
(These statutory provisions, in substance, are now found in NRS 111.210.)
lessees of portions of the lobby premises, to be used for various types of shops, including the
gift shop now under discussion.
After obtaining the July 6, 1956 letter, signed by Kozloff, Altman caused appellant
corporation to be formed, which qualified on July 28, 1956 to do business in Clark County,
Nevada, in which the said hotel is situated. Such corporation had as its three stockholders,
Altman, his wife, and a third person. Nowhere in the record does there appear an assignment
by Altman of any rights that he had to a lease as evidenced by the Kozloff letter. Altman, as
an individual, was not a party to the suit brought by appellant corporation to compel the
execution and delivery of the lease by respondent and, of course, is not a party to this appeal.
The record is obscure upon what appellant corporation based its right to specific performance,
but such contention appears to find its greatest support in the connected facts of Altman's
having received the letter from Kozloff and having thereafter formed appellant corporation
for the operation of the gift shop business. However, we may leave this question of a valid
assignment of Altman's rights undetermined and decide the question of whether or not the
record justifies the conclusion that Kozloff had real or apparent authority to act as the agent
for respondent hotel corporation.
The record shows that on or about July 24, 1956 the state gaming control authorities
refused to issue the license required by Kozloff for his operation of the hotel's casino, and
Kozloff's connection with the enterprise appears to have terminated at that time. Kozloff
testified that the respondent corporation was to operate the hotel and that another corporation
was to operate the casino on the hotel premises.
He identified Warren Bayley, chairman of the board of directors of respondent, as one of
the men participating in conversations in which Kozloff * * * was instructed to seek out
proper people to lease out the different concessions * * * including the gift shop. Kozloff's
testimony was far from specific in indicating just what had been said and by whom in the
conversations referred to.
just what had been said and by whom in the conversations referred to. He did, however,
testify that he talked to Altman and, as a result of the discussions, recommended that Altman
be given a lease, and that he had notified Altman to that effect, and that the terms appearing
in the July 6, 1956 letter were agreed upon between him and Altman. He did not testify that
Warren Bayley, whom he characterized as the person who * * * exercised full authority in
all the corporations, ever gave his approval to the proposed lease to Altman. Similarly, he
failed to testify that any other person with either actual or apparent authority to act upon
behalf of respondent corporation ever authorized or approved the lease arrangement referred
to in Kozloff's letter to Altman.
Concerning his conversations had with Kozloff and also with Altman, Bayley testified
with reference to discussions concerning prospective tenants that he had told Kozloff that he
would like to have Kozloff refer any interested tenants for the concessions to Bayley for
further discussions, and that Kozloff had no further authority in that regard. He testified that
only the board of directors of the corporation had the authority to grant leases on the hotel
premises.
[Headnote 1]
The trial court apparently was satisfied from this uncontradicted evidence and made its
findings upon which judgment was entered that Kozloff had no authority as agent to bind the
respondent corporation in any agreement to execute a lease covering the gift shop area in the
hotel lobby. Such findings and judgment find substantial support in the evidence.
[Headnotes 2-4]
Appellant contends that there was a ratification by respondent of Kozloff's acts based
primarily upon appellant's entry into possession, payment of rents, and purchase of
merchandise, all with the knowledge of respondent. However, these facts alone were just as
consistent with a month-to-month tenancy as with a leasehold. Ballard v. Nye, 138 Cal. 588,
597, 72 P. 156; Schomaker v. Petersen, 103 Cal.App.
Schomaker v. Petersen, 103 Cal.App. 558, 285 P. 342, 347. The court did not give credit to
the evidence offered to show ratification by respondent after the tenant's claims to a leasehold
were asserted. This was within the power of the trial court. Neither do we find support in the
record for appellant's contention that Kozloff had apparent authority and that respondent was
estopped from denying such authority, as it does not appear that respondent through its
officers or authorized agents so conducted itself as to cause appellant to believe that Kozloff
was respondent's agent. So far as appears, it was Kozloff himself who made representations
as to his authority, and no sufficient circumstances were present to compel a finding
precluding a denial of Kozloff's authority by respondent under principles of estoppel or
ratification of Kozloff's acts.
Judgment affirmed.
____________
76 Nev. 91, 91 (1960) Moe v. Silvagni
In the Matter of the Estate of
PIETRO OTTAVIO SILVAGNI
OLGA SILVAGNI MOE, Appellant, v.
MICHELE SILVAGNI, Respondent.
No. 4229
March 4, 1960 349 P.2d 1067
Appeal from Eighth Judicial District Court, Clark County; David Zenoff, Judge,
Department No. 1.
Civil action. From a judgment of the trial court appointing the respondent as administrator
with the will annexed and granting to him letters of administration, the petitioner appealed.
The Supreme Court, Badt, J., held that an appeal from a judgment must be dismissed as moot.
Appeal dismissed.
76 Nev. 91, 92 (1960) Moe v. Silvagni
Morse, Graves and Compton, and Raymond E. Sutton, of Las Vegas, for Appellant.
Jones, Wiener and Jones, of Las Vegas, for Respondent.
Executors and Administrators.
An appeal from a judgment appointing another as administrator with the will annexed and granting to
him letters of administration must be dismissed as moot in view of opinion of the Supreme Court
directing further proceedings in the district court for the appointment of another as executor of the same
will of the same testator involved in the instant appeal.
OPINION
Olga Silvagni Moe has appealed from the judgment appointing Michele Silvagni
administrator with the will annexed and granting to him letters of administration with the will
annexed.
The issue as to who should or should not be appointed administrator with the will annexed
has been rendered moot by our opinion and decision of this date in case No. 4238, In the
Matter of the Estate of Pietro Ottavio Silvagni, Deceased, Thomas A. Foley, Appellant, v.
Michele Silvagni, Respondent, 76 Nev. 93, 349 P.2d 1062, in which we directed further
proceedings in the district court for the appointment of Thomas Foley as executor of the same
will of the same testator involved in this appeal. This appeal is accordingly dismissed.
____________
76 Nev. 93, 93 (1960) Foley v. Silvagni
In the Matter of the Estate of
PIETRO OTTAVIO SILVAGNI, Deceased.
THOMAS A. FOLEY, Appellant, v.
MICHELE SILVAGNI, Respondent.
No. 4238
March 4, 1960 349 P.2d 1062
Department No. 1.
Proceeding on a petition for letters testamentary. From an adverse judgment of the lower
court the petitioner appealed. The Supreme Court, Badt, J., held that a document designated
the court's decision was a final appealable order and that petitioner who was appointed by
the testator as executor of the will was entitled to letters of administration and to revoke his
renunciation of appointment and to have letters issued to him.
Motion to dismiss appeal denied. Order denying letters testamentary to appellant
reversed.
(Petition for rehearing denied April 6, 1960.)
A. W. Ham and A. W. Ham, Jr., of Las Vegas, for Appellant.
1. Appeal and Error.
The fact that a later order was later in time than a prior order would not in itself detract from the finality
of the prior order, if it were otherwise a final and appealable order.
A court's decision which after reciting preliminary matters ordered that the petition of the petitioner for
letters testamentary be denied and that another be appointed administrator and that letters of administration
be issued to him was appealable as a final appealable order. NRS 155.190; NRCP 75 (a, h).
3. Executors and Administrators.
Absent any right of discretion created by a statute, no discretion rests in the probate court in respect to the
issuance of letters testamentary to a person nominated in the will. NRS 138.010, 138.020.
4. Executors And Administrators.
The testator has the absolute right to select the executor to carry out his will to like extent that
he has absolute right to make disposition of his property as he chooses.
to carry out his will to like extent that he has absolute right to make disposition of his property as he
chooses. NRS 138.010, 138.020.
Where one appointed by a testator as executor of his will renounced his trust, but only four days after the
court's order appointing another as administrator with the will annexed while the estate was being
administered by a special administrator and while litigation was pending to determine who should be
appointed as administrator with the will annexed and before the issuance of any letters of administration he
revoked his renunciation and filed his petition for letters testamentary, the executor had the right to revoke
his renunciation and to have letters issued to him. NRS 138.010, 138.020.
The probate court had the duty in admitting the will to probate to follow the testator's direction and to
order the issuance of letters testamentary to the person appointed by the testator in his will as his executor
upon the appointee's compliance with the statutory requirements. NRS 138.010, 138.020.
OPINION
On Motion to Dismiss Appeal
Respondent has moved to dismiss appellant's appeal on the ground that it is not taken from
any final, appealable judgment or order. The notice of appeal is from what is designated as
Court's Decision filed June 2, 1959, which, after reciting certain preliminary matters, orders
that the petition of Foley for letters testamentary be denied and that Michele Silvagni be
appointed administrator with the will annexed and that letters of administration with the will
annexed be issued to him upon his taking the oath of office and giving bond as required by
law in the sum of $75,000. These particular orders are quoted in haec verba in the notice of
appeal. NRS 155.190 provides that an appeal may be taken to the supreme court from an
order or decree: 1. Granting or revoking letters testamentary or letters of administration. * * *
13. Refusing to make any order heretofore mentioned in this section * * *.
[Headnotes 1, 2]
Respondent contends that an order filed June 3, 1959, designated "Order Denying Letters
Testamentary to Thomas A.
designated Order Denying Letters Testamentary to Thomas A. Foley, is the only final order
from which Foley could have appealed, and purports to show the existence of such order by
attaching a certified copy thereof to his motion. The asserted order of June 3, 1959 is not
included in the record on appeal nor was it designated either in appellant's designation of
record or respondent's counter designation (Rule 75(a) NRCP). No diminution of record has
been suggested (id. 75(h)), nor does it appear that appellant was ever served with a copy of
said order of June 3, 1959 or with a notice thereof (Rule 5(a) NRCP). Even if we may
consider the asserted order of June 3, the mere fact that it is later in time than the order of
June 2 would not in itself detract from the finality of the order of June 2 if the latter is
otherwise a final, appealable order. Such we hold it to be. It is a written order, signed and
filed by the district judge, denying Foley's petition for letters testamentary. The mere fact that
the document is entitled Court's Decision does not alter its obvious and patent character.
The motion to dismiss the appeal and the motion to strike the record on appeal, coupled
therewith, must be denied.
On the Merits
Foley's appeal from the order denying his petition for letters testamentary is closely
associated with the appeal now pending and submitted to this court in case No. 4229, 76 Nev.
91, 349 P.2d 1067, in which Olga Silvagni Moe has appealed from the court's order denying
her petition for letters of administration CTA and granting the petition of her brother Michele
Silvagni for letters of administration CTA of the estate of Pietro Ottavio Silvagni, deceased.
The transcript of record in that appeal is before us to serve the purposes of both appeals. We
are thus in the main furnished with information (with the exception of several missing filings)
as to the nature and chronological order of the filings and proceedings leading up to the order
from which the present appeal is taken. From this the following appears: On December 2S,
195S the testator died, leaving two instruments of a testamentary nature, each of which
appeared valid on its face.
On December 28, 1958 the testator died, leaving two instruments of a testamentary nature,
each of which appeared valid on its face. One was a will, dated October 21, 1955, which
appointed Thomas A. Foley, the appellant herein, as executor, and one, a will, dated October
24, 1955, which appointed Michele Silvagni executor. This later will of October 24, 1955
apparently disappears from consideration in the proceedings below and in any points raised in
this appeal. We gather from the record that although this later will bore the signature of the
testator and of the two subscribing witnesses, under proper testimonial clauses and proper
certificates of the witnesses, the will was not executed by the testator in the presence of the
witnesses, nor did the witnesses sign in the presence of the testator, nor did the testator ever
declare to the witnesses that the document was his will, or that he requested them to attest the
same as witnesses. Be this as it may, the will of October 24, 1955 plays no part in this appeal
other than the fact that prior to the time Mr. Foley renounced his right to letters under the will
of October 21, 1955, he had been shown a photostat or Verifax copy of the purported will of
October 24, 1955 naming Michele Silvagni as executor and was advised by the attorney for
Michele Silvagni that such will was a later valid will naming another person as executor.
In January 1959 Michele Silvagni offered both wills for probate, in the alternative, seeking
either letters testamentary of the later will or letters of administration with the will annexed of
the earlier will. Olga Silvagni Moe, his sister, contested both wills.
On January 22, 1959 Foley renounced his right to letters testamentary under the earlier
will.
On May 5 and 6, 1959 Olga's contest of the probate of the will of October 21, 1955 was
heard by the court with a jury. At a later hearing on May 29, 1955 (after dismissal of the jury
on May 6, 1955) Mr. Foley, called as a witness by Michele Silvagni as the proponent of the
will of October 21, 1955 and in support of Michele's petition for letters testamentary CTA,
testified that he had renounced his right to act as executor because of an adverse interest,"
and also that the photo copy or Verifax copy of the purported will dated October 24, 1955
had been submitted to him "prior to my relinquishing any right under the will [of October
21, 1955]."
an adverse interest, and also that the photo copy or Verifax copy of the purported will dated
October 24, 1955 had been submitted to him prior to my relinquishing any right under the
will [of October 21, 1955].
On May 11, 1959 the court filed its judgment reciting the abandonment of all protests to
the admission to probate of the will of October 21, 1955, admitted said will to probate, and
ordered that Michele Silvagni will be appointed administrator with the will annexed after
the expiration of ten days, and that letters of administration CTA be issued to him upon his
taking oath and giving bond.
On May 15, 1959 Foley filed his petition for letters testamentary and revoked his
renunciation of January 22, 1959, alleging that same was made under a mistake of fact,
namely, that he had an adverse interest.
On May 21, 1959 Olga Silvagni Moe filed her objection to the appointment of Michele
Silvagni as administrator CTA, asserting the latter's adverse interests growing out of litigation
prosecuted by him against the estate, that he had theretofore been convicted of a felony, that
he had thereafter uttered forged checks, and that he was not a suitable person to act as
administrator CTA. Appeal from the order granting letters of administration CTA to Michele
has heretofore been argued to this court in appeal No. 4229 and is now under submission.
The court minutes of June 2, 1959 show the court's order denying Foley's request to
withdraw his renunciation, overruling Olga's objection to the appointment of Michele,
denying Foley's petition for letters testamentary, and ordering that Michele be appointed
administrator with the will annexed and that letters of administration CTA issue to him upon
his taking oath of office and giving bond in the sum of $75,000, to be approved by the court.
The written order of June 2 to like effect, hereinabove referred to, was likewise filed on said
day.
On May 29, 1959 the court heard sundry matters in addition to Foley's petition for letters
testamentary and in addition to Michele Silvagni's objections thereto and in addition to Olga
Silvagni Moe's petition for the appointment of some qualified person as administrator
with the will annexed.
in addition to Olga Silvagni Moe's petition for the appointment of some qualified person as
administrator with the will annexed. At the beginning of the hearing the court was asked by
Foley's attorney to take judicial notice that at that point letters had not been issuedeither
testamentary or of administration. The court announced That is the state of the record * * *.
The court is aware of it.
It was not until June 3, 1959 that Michele's bond was approved and letters of
administration CTA were issued to him.
The learned district judge, in the document filed June 2, 1959 denominated Court's
Decision, recited the following as his reasons and grounds for denying Foley's right to
withdraw his renunciation and denying his petition for letters testamentary:
As to the claim of Thomas Foley to now withdraw his renunciation, the Court exercises
its discretion in denying such request. Thomas Foley renounced originally, and the Court
appointed Michele Silvagni as special administrator. Originally Thomas Foley testified that
the reason he renounced was because his interests were adverse. Subsequently, he testified
that they were no longer adverse, but there is nothing in the record to show of what the
adversity consisted nor in what way it is now cleared.
Certain acts necessary to be done in the handling of the estate in the early stage following
the death of the testator were done by Michele Silvagni as special administrator. Too,
Michele Silvagni has been closely associated along with his brother, Vittorio, in the handling
of their father's affairs during his lifetime. Either of them has far more immediate, particular
and peculiar knowledge of the affairs of their father and the estate than Attorney Thomas
Foley. There is no reason now to upset the inner workings of the estate and substitute a
stranger in the place of one not only named as a principal legatee in the Will admitted to
probate, one in whom it appears obvious that the intention of the testator is to repose trust and
confidence, but also one thoroughly familiar with the aforesaid affairs of the estate.
In connection with such order and with the other proceedings above recited, it should be
remembered that Michele Silvagni had been appointed as special administrator and special
letters were issued to him and that he is at the present time still acting as such. It would not
appear that the affairs of the estate, said to be of a value of some two million dollars, are
being prejudiced by the absence of either an executor or of an administrator with the will
annexed.
[Headnotes 3, 4]
It must be conceded that if the situation was one in which the court had a right to exercise
its discretion, if, for example, the court had been acting upon competing and adverse petitions
of Thomas Foley and Michele Silvagni under no controlling statutory provision, the points
mentioned by it would justify an exercise of that discretion in granting letters of
administration to Michele and denying them to Mr. Foley. Such, however, is not the case. The
testator appointed Foley as executor of the will. Under NRS 138.010, if the will is admitted to
probate, the district court shall direct letters thereon to issue to the person or persons named
in the will to execute the same, who may be competent to discharge the trust, and who shall
appear and qualify. Under sec. 138.020 a person is not competent to serve as executor who
at the time of the admission of the will to probate is under the age of majority or who shall
have been convicted of a felony or who, upon proof, shall have been adjudged by the court
incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or
want of integrity or understanding. Foley derived his right to letters not from any familiarity
with the business or affairs of the testator during the latter's lifetime, or because of any
immediate particular and peculiar knowledge of such affairs or because there was no danger
that he might upset the inner workings of the estate or because he was a principal legatee
under the will or because of any of the other reasons or implications considered by the learned
district judge. He derived his right to letters from the testator. The testator's will in so
appointing him ranks equally (subject of course to possible statutory disqualification) with the
testator's will in the disposition made of his estate.
testator's will in the disposition made of his estate. Absent any right of discretion created by
statute, no discretion rests in the probate court in respect to the issuance of letters
testamentary to the person nominated in the will. The testator has the absolute right to select
the executor to carry out the provisions of his will to like extent that he has the absolute right
to make disposition of his property as he choosesboth being subject only to statutory
limitations. Anno., 95 A.L.R. 828, Power of court to refuse letters testamentary to one
named in will as executor, absent specific statutory disqualification; Holbrook v. Head, 9
Ky. L.Rep. 755, 6 S.W. 592; In re Flood's Will, 236 N.Y. 408, 140 N.E. 936. See In re
Minnie P. Holland's Estate, 139 N.Y.S.2d 63.
Despite the foregoing, respondent supports the court's order denying letters testamentary to
Foley by Foley's prior renunciation, which he revoked before the issuance of letters
testamentary to Michele. He relies upon NRS 138.020 which provides in part: If any such
person * * * named as the sole executor * * * shall renounce the trust * * * letters of
administration with the will annexed shall issue.
[Headnote 5]
As noted, Foley renounced his trust on January 22, 1959, but on May 15, 1959, only four
days after the court's order of May 11, while the estate was being administered by a special
administrator and while litigation was pending to determine who should be appointed as
administrator with the will annexed, and before issuance of any letters of administration, he
revoked his renunciation and filed his petition for letters testamentary. The rule in such case
is likewise well established to the effect that he had a right to revoke his renunciation and to
have letters issued to him. Nunn et al. v. Hamilton, 233 Ky. 663, 26 S.W.2d 526; In re
McNichol's Estate, 282 Pa. 187, 127 A. 461; In re Dunham's Will, 150 N.Y.S. 692; In re
True's Estate, 120 Cal. 352, 52 P. 815; Anno., 153 A.L.R. 227; 33 C.J.S. 919, Executors and
Administrators, sec. 29; 21 Am.Jur. 431 cited In re Grattan's Estate, 155 Kan.
Grattan's Estate, 155 Kan. 839, 130 P.2d 580, 590; Davis v. Inscoe, 84 N.C. 396, Ann.Cas.
1916 D 1304.
It should be remembered that Michele's petition for letters filed January 7, 1959 had
attached to it the document of October 24, 1955, which on its face was a later will than the
will of October 21, 1955 appointing Foley as executor, and that on January 22, 1959 Michele
filed an amended petition asking for letters testamentary under the apparently valid later will
or, in the alternative, for letters of administration with the will annexed under the earlier will.
Again he prayed for admission to probate of the later will naming him as executor. He alleged
that the later will was a valid will. The trial court's judgment of May 11, 1959 established for
the first time that the later will was not valid. Four days later, on May 15, 1959, Foley
revoked his renunciation and petitioned for letters testamentary.
[Headnote 6]
Respondent has submitted authorities which he asserts sustain his view that the court had
the right to exercise its discretion in refusing to accept the revocation of the renunciation and
that the mandatory provision of NRS 138.020 requires letters of administration with the will
annexed to issue to respondent. An examination of those authorities satisfies us that the same
are not in point. It was incumbent upon the probate court in admitting the will to probate to
follow the testator's direction and to order the issuance of letters testamentary to appellant
upon appellant's compliance with statutory requirements. It is suggested in respondent's brief
that Foley failed to give the notice required by statute of the hearing of his petition for probate
and for letters testamentary. This, as well as other procedural matters, may require the
attention of the probate court.
Reversed and remanded for further proceedings in accordance herewith.
____________
76 Nev. 102, 102 (1960) Foley v. Carson
THOMAS A. FOLEY, Appellant, v.
LOUISE K. CARSON, Respondent.
No. 4230
March 10, 1960 349 P.2d 1056
Appeal from judgment of the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge, Department No. 2.
Action for recovery of certain funds placed with an escrow holder for investment in a
hotel. The lower court entered judgment against escrow holder, and he appealed. The
Supreme Court, Pike, J., held that where plaintiff placed certain of her funds with an escrow
holder for future investment in a hotel, and under the escrow instructions the money was to be
retained until plaintiff was approved for state and city gaming licenses, even though escrow
holder released such funds prior to approval of plaintiff, in view of fact that such release of
funds had no relationship to plaintiff's loss which was due to fact that hotel became
financially involved shortly after release of the funds, followed by bankruptcy proceedings,
escrow holder could not be held liable for the loss.
Judgment reversed.
(Petition for rehearing denied April 8, 1960.)
Morse, Graves & Compton; Ham and Ham, of Las Vegas, for Appellant.
1. Escrows.
Even though there might not be a strict compliance by an escrow holder with conditions and instructions
under which he was authorized to deliver funds, in order for liability to result there must have been a causal
relationship between such noncompliance and loss of the funds.
2. Escrows.
Where plaintiff placed certain of her funds with an escrow holder for future investment in a hotel, and
under the escrow instructions the money was to be retained until plaintiff was approved for state and city
gaming licenses, even though escrow holder released such funds prior to approval of plaintiff, in view of
fact that such release of funds had no relationship to plaintiff's loss, which was due to
fact that hotel became financially involved shortly after release of the funds, followed
by bankruptcy proceedings, escrow holder could not be held liable for the loss.
view of fact that such release of funds had no relationship to plaintiff's loss, which was due to fact that hotel
became financially involved shortly after release of the funds, followed by bankruptcy proceedings, escrow
holder could not be held liable for the loss.
OPINION
Appeal from a judgment of the trial court. The trial court found that appellant, as an
escrow holder of $12,000 of respondent's funds placed with him by her, had released such
funds without first requiring compliance with certain conditions entitling him to do so. From
this finding the court concluded that the respondent was entitled to recover the amount of
such funds from appellant, and entered judgment accordingly.
Respondent's funds in the indicated amount had come into the possession of appellant as
an escrow holder under the following conditions. One Louis Rubin was one of a group of
persons interested in the planned opening and operation of a hotel and casino at Las Vegas, to
be known as the Moulin Rouge. On March 23, 1955 Rubin wrote Mrs. Louise K. Carson,
respondent herein, concerning procedures required to be followed by her to join Rubin and
others as a partner in the contemplated hotel and casino operation. His letter informed her that
certain partners in the enterprise then had applications pending for gaming licenses before the
Nevada State Tax Commission. His letter went on to inform her that no sale to her of an
interest in the partnership could be made until after such partners had been so licensed by the
commission, but that after such licensing she should deposit her purchase money with the
attorney for the Moulin Rouge operation, Thomas A. Foley of Las Vegas, Nevada, appellant
herein. The letter then stated, Said deposit shall remain in trust with the aforesaid attorney
and shall not be utilized by Moulin Rouge until such time as you have received the approval
of the Nevada State Tax Commission and the City of Las Vegas. Upon said approval, you
will receive evidence of ownership to the extent of 1J2 of 1%, and the sum of $12,000.00
shall be delivered to Moulin Rouge."
evidence of ownership to the extent of 1/2 of 1%, and the sum of $12,000.00 shall be
delivered to Moulin Rouge.
Rubin signed this letter as an individual, and on March 26, 1955 Mrs. Carson endorsed on
the letter her acceptance and approval of its terms. Thereafter, on April 11, 1955 respondent
wrote to appellant, enclosing her check of that date for $12,000 payable to Moulin Rouge,
and inquired in what manner she would be notified when and where to appear in connection
with her applications for gaming license.
By letter dated April 19, 1955 appellant acknowledged receipt of this letter and the check,
stated that he would not present the check for cashing until the license was granted to Moulin
Rouge and that, with respondent's permission, he would thereafter deposit her check for
collection in his escrow account, . . . and thereafter hold the same until such time as you,
personally, are licensed by the Nevada Tax Commission.
Respondent and her husband went to the office of Don Ashworth, a Las Vegas accountant,
on May 11, 1955 and there respondent executed the necessary papers relating to her
applications for state and city gaming licenses.
On July 25, 1955 Foley received information by telephone from a state gaming control
official that Mrs. Carson had been approved for a state gaming license, and on July 28, 1955
she was so licensed. After receiving the information that Mrs. Carson's application had been
approved on July 25, 1955 appellant on that same date delivered the funds to Rubin.
The trial court found that appellant, as escrow holder, was required . . . to retain said
money until the Nevada Tax Commission and the City of Las Vegas had approved the
application of plaintiff herein as a licensee for the gaming operation of said Moulin Rouge
Hotel . . . The trial court also found that appellant delivered the funds to the Moulin Rouge
hotel on July 25, 1955 although respondent was not approved for a state gaming license
until July 28, 1955 and was never approved for a city gaming license.
Additional findings of the trial court were that the funds were not delivered by the escrow
holder to Rubin in accordance with the agreement (the letter of March 23, 1955) between
respondent and Rubin, or in accordance with respondent's instructions to the escrow holder.
The trial court concluded as a matter of law that respondent was entitled to recover from
the escrow holder the entire amount of the funds which she had deposited with him, and
entered judgment accordingly, from which judgment this appeal has been taken.
[Headnote 1]
Even though there may not have been a strict compliance by the escrow holder with the
conditions and instructions under which he was authorized to deliver respondent's funds to
Rubin, in order for liability to result there must be a causal relationship between such
noncompliance and the loss of the funds. Sideris v. Northwest Bonded Escrows, Inc., 51
Wash.2d 851, 322 P.2d 349; Phoenix Title & Trust Co. v. Horwath et ux, 41 Ariz. 417, 19
P.2d 82, 87; Collier v. Smith, Mo.App., 308 S.W.2d 779, 784.
It is not claimed, nor is there any evidence to indicate there were any improper motives on
the part of the escrow holder, and from the record it does not appear that appellant's deviation
from a strict compliance with what may be viewed as his escrow instructions, was responsible
for the loss of respondent's funds. True, appellant released the funds to Moulin Rouge on July
25, 1955, three days before respondent was licensed by the state in the gaming operation in
which she sought to use her funds to purchase a partnership interest. In the absence of damage
resulting therefrom, the breach of instructions was immaterial. Also, although the court found
that respondent was never approved as a gaming licensee for the Moulin Rouge gaming
operations by the city of Las Vegas authorities, the record does disclose circumstances of an
implied approval.
In this regard the record shows that sometime between May 11, 1955, when Mrs. Carson
applied for her city gaming license, and May 24, 1955, the opening date of the Moulin Rouge
hotel and casino, the board of city commissioners of Las Vegas had taken action with
reference to a group of some 27 applicants, including respondent, for city gaming licenses
in the Moulin Rouge operation.
the Moulin Rouge hotel and casino, the board of city commissioners of Las Vegas had taken
action with reference to a group of some 27 applicants, including respondent, for city gaming
licenses in the Moulin Rouge operation. The commissioners, at a meeting held within the
period indicated, approved eight of the applicants with reference to whom investigations had
been completed, and undertook to make those so licensed responsible for the entire group of
27 applicants. This city board also authorized the use by Moulin Rouge of the funds of all
applicants in the group. This action by the city authorities was taken more than two months
prior to the time that the funds were delivered to Rubin, representing the Moulin Rouge
operation. Here again there appears to have been a substantial compliance with the escrow
instructions.
[Headnote 2]
The record shows that the Moulin Rouge hotel and casino operation had become
financially involved by August 1955, followed by bankruptcy proceedings. Respondent's
funds, together with other funds which had been placed into the venture, were gone beyond
hope of recoupment. The release of the funds to Rubin on July 25, under the particular
circumstances referred to, had no relationship to respondent's loss. Respondent's loss was
solely the result of her unfortunate investment.
Judgment reversed, with costs.
____________
76 Nev. 107, 107 (1960) Nevada Industrial Commission v. O'Hare
NEVADA INDUSTRIAL COMMISSION, Appellant, v.
PHIL W. O'HARE, Respondent.
No. 4239
March 10, 1960 349 P.2d 1058
Appeal from the Second Judicial District Court, Washoe County; John F. Sexton, Judge
Presiding, Department No. 2.
Workmen's compensation case. The trial court awarded compensation, and the Nevada
Industrial Commission appealed. The Supreme Court, Badt, J., held that evidence warranted
court's finding of causal connection between claimant's employment and Buerger's disease or
aggravation or acceleration of Buerger's disease resulting from claimant's employment, and
also held that in affirming the judgment it was not intended that the District Court's
determination of the claimant's right to payments under the Workmen's Compensation Act
should be res judicata as to any subsequent action that might be taken by the medical board or
by the commission in accordance with the act.
Affirmed as modified.
Paul D. Laxalt and William J. Crowell, of Carson City, for Appellant.
Lohse & Fry and Margaret Faires Baily, of Reno, for Respondent.
1. Workmen's Compensation.
Evidence warranted finding of District Court trying workmen's compensation case without a jury, of
causal connection between claimant's employment and Buerger's disease or aggravation or acceleration of
Buerger's disease resulting from claimant's employment. NRS 616.010 et seq.
In workmen's compensation case, medical referee board's finding and decision were not binding where
board had made no physical examination of claimant as required by statute. NRS 616.190, subd. 2,
616.540, subd. 2.
In affirming District Court's judgment awarding workmen's compensation, it was not intended that the
District Court's determination of the claimant's right to payments under the act be res judicata, either
with respect to continued payments in the future or with respect to its determination
that claimant's disability and incapacity was permanent and total, as to any
subsequent action that might be taken by the medical board or by the commission in
accordance with the statutes.
act be res judicata, either with respect to continued payments in the future or with respect to its
determination that claimant's disability and incapacity was permanent and total, as to any subsequent action
that might be taken by the medical board or by the commission in accordance with the statutes. NRS
616.190, subd. 2, 616.535, subd. 1, 616.540, subd. 1.
OPINION
This is an appeal by Nevada Industrial Commission from a judgment of the court below
awarding to Phil W. O'Hare a judgment for accrued compensation and for continuing
compensation and for unpaid medical and hospital expenses, after the commission, pursuant
to recommendations of the medical board, had terminated O'Hare's compensation.
On December 4, 1955 plaintiff was employed as a tractor operator by Utah Construction
Company and while engaged in said employment at the Hawthorne Naval Ammunition Depot
at Hawthorne, Nevada, was injured after climbing off a caterpillar tractor and sustained a
sprained left leg. As a result of said accident he was hospitalized and for a period of time,
from December 12, 1955 to May 24, 1956, received weekly compensation from the
commission. Further benefits were refused and the commission disclaimed further liability.
Both the employer and the employee were subject to the provisions of the Nevada Industrial
Insurance Act. NRS Chap. 616. These facts are admitted by the pleadings. It is not contended
that the accident, for whose results he was compensated up to May 24, 1956, did not arise out
of and in the course of his employment.
As an affirmative defense, the commission asserted that prior to July 27, 1956 O'Hare's
claim before the commission had been referred to the medical board for determination, and
that such board had determined that any disability suffered by O'Hare after May 24, 1956 was
not the result of injury sustained on December 4, 1955, but was caused by a disease not
connected in any way with O'Hare's employment; that such findings and determination of
the medical board were final and binding upon the commission.
determination of the medical board were final and binding upon the commission. A copy of
the findings and determination signed by two members of the three-man medical board was
attached to the answer as an exhibit. It is recited in full in the margin.
1

The case was tried to the district court without a jury. O'Hare and one of the doctors who
had attended him over a long period and who had prescribed a course of treatment, both in
and out of the hospital, testified in support of the plaintiff. One physician testified on behalf
of the commission. Neither of the two physicians who signed the findings and decision of the
medical board testified. No explanation appears why the third member of the medical board
did not sign that board's decision, or what his position was with reference thereto.
[Headnote 1]
It appeared from the evidence that O'Hare was suffering from thrombophlebitis caused by
the injury described. Thrombophlebitis was defined as the development of a blood clot within
a vein, which therefore obstructs the flow of blood through the vein. Though the commission
accepts the conclusion that O'Hare still suffers from a medical condition, it contends that the
testimony of the two expert witnesses who testified supported the conclusions of the medical
board that O'Hare had a background for the thrombosis on the basis of pre-existing
arterial and venous disease, such as Buerger's disease, known as thromboangiitis
obliterans, which was not aggravated or accelerated by the accident.
____________________

1
July 27, 1956.
At a recent meeting of the Board, Mr. O'Hare appeared to present evidence in his rejection of claim for
continuation of care.
The entire history, physical, treatment, hospitalization and total care of Mr. O'Hare was reviewed. Then Mr.
O'Hare was called in for discussion as to his complaints and his side of the story.
In summarizing, we could state that Mr. O'Hare did have a primary phlebothrombosis which was accepted
by the commission in good faith and treated until we felt that this traumatic thrombosis was well taken care of.
Unfortunately, in the investigation of his thrombosis and with the Doctors involved, Dr. Peterson, Dr.
Duxbury, it was felt that he had a background for these thromboses on the basis of early arterial and venous
disease, such as B[u]erger's disease, this could not be caused by his employment and it was felt, since the
Commission had taken care of him completely during the incident relative to his work; that they could not take
care of him for the B[u]erger's disease and for this to be accepted as an Industrial case in the future. If this
accident had been the cause for the B[u]erger's, then it would be their responsibility for continuing treatment.
O'Hare had a background for the thrombosis on the basis of pre-existing arterial and venous
disease, such as Buerger's disease, known as thromboangiitis obliterans, which was not
aggravated or accelerated by the accident. It therefore asserts error in the lack of evidence
supporting a finding of any causal connection between O'Hare's employment and Buerger's
disease or the aggravation or acceleration of Buerger's disease resulting from his employment.
(1) We have read with care the testimony of the two expert witnesses and find the same
inconclusive, without convincing effect, attended by considerable confusion, and in some
respects contradictory. For an enlightening discussion of Buerger's disease, the aggravation
and acceleration thereof, the obscure nature of its cause, and its compensability under
Workmen's Compensation statutes, see Quaker Oates Co. v. Industrial Commission, 414 Ill.
326, 111 N.E.2d 351, and Paull v. Preston Theatres Corporation, 63 Idaho 594, 124 P.2d 562.
We are unable to say that the court's finding was not supported by substantial evidence, or
that the evidence compelled a finding that O'Hare's condition was the result of a preexisting
Buerger's disease. See Nevada Industrial Commission v. Frosig, 74 Nev. 209, 326 P.2d 736.
We conclude that the assignment of the insufficiency of the evidence is without merit.
[Headnote 2]
(2) What we conceive to be the commission's chief assignment of error is the failure of the
court to find, as a matter of law, that the finding and decision of the medical referee board
was final and obligatory upon the commission, in the absence of showing that the board's
finding was arbitrary, capricious, or in abuse of its discretion.
This court has heretofore defined the nature of its review of the findings and decisions of
administrative boards. Nevada Tax Commission v. Hicks, 73 Nev. 115, 310 P.2d 852. See
also State ex rel. Grimes v. Board of Com. of Las Vegas, 53 Nev. 364, 1 P.2d 570; Dunn v.
Nevada Tax Commission, 67 Nev. 173, 216 P.2d 985. We have recognized the finality of
administrative determinations of administrative commissions in the exercise of the
commission's judgment based upon its specialized experience and knowledge.
have recognized the finality of administrative determinations of administrative commissions
in the exercise of the commission's judgment based upon its specialized experience and
knowledge. This evolved from the growing appreciation of the undesirability of trying de
novo in the courts appeals from the rulings and decisions of the commission. We recognized
the desirability of having the commission or administrative tribunal assume a real
responsibility for weighing and considering the facts in the fields where it had peculiar
competence. We repeatedly referred to such experience and skill acquired by the
administrative tribunals in their respective spheres. This we may again confirm with reference
to administrative determinations, at the same time recognizing that the final action and
judgment of the administrative tribunal made in the exercise of a quasi-judicial function is
subject to judicial review. Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158. Where the factual
determinations are made after such hearing and notice necessarily provided to satisfy the
requirements of due process, the absence of compliance with such provisions may
undoubtedly be the subject of judicial inquiry. Nevada Tax Commission v. Hicks, supra.
In the instant case the statutory pronouncement that the finding by the medical board or a
majority of the members thereof shall be final and binding on the commission (NRS
616.190(2)) is linked with a further statutory requirement. This is that the medical board's
findings, conclusions, and recommendations to the commission shall follow the board's full,
complete and thorough examination [conceded by appellant to require a physical
examination] of the injured employee after notice to the employee of the time and place set
for examination and investigation into the medical questions involved, as well as the
determination of the extent of disability. (NRS 616.540 (2)) The medical board made no
physical examination of O'Hare. It is impossible logically to divorce the binding effect of the
medical board's finding and decision from the statutory requirement for notice and for a full,
complete and thorough physical examination. The binding effect of the board's finding and
decision disappears from the picture in the absence of compliance with those mandatory
requirements which the legislature in its wisdom thought proper to impose.
finding and decision disappears from the picture in the absence of compliance with those
mandatory requirements which the legislature in its wisdom thought proper to impose.
The assignment of error in the court's failure to find that the medical board's findings and
recommendations were binding upon the commission, and thus binding upon the court, must,
under the circumstances, be held to be without merit.
(3) In further response to the contention of appellant that the decision of the medical board
was obligatory upon the commission, respondent urges that the report signed by the two
doctors is not a report by the medical board as such; that the provisions of NRS 616.540(3)
2
have not been complied with; that it cannot be determined from the report whether all of the
members of the board were in agreement; that if the three members were, as a matter of fact,
not in agreement, the requirement of the section that the members of the medical board shall
submit separate and individual reports to the commission was not complied with. By reason
of our holding above, it is not necessary to pass upon this contention, but we cannot say that it
is without merit. Members of the medical board are physicians, not lawyers, and may not in
fairness be forced to assume the task of legal analysis of applicable statutes and the possible
results of failure of strict compliance. However, the legislature has furnished the commission
with counsel, the utilization of whose advice on analysis of statutory requirements might save
expensive litigation to all parties concerned.
[Headnote 3]
(4) In affirming the judgment herein, it is not intended that the district court's
determination of the respondent's present right to payments under the act be res judicata
(either with respect to continued payments in the future, or with respect to its determination
that plaintiff's disability and incapacity is permanent and total) as to any subsequent
action that may be taken by the medical board or by the commission in accordance with
the provisions of NRS 616.535{1)3 or NRS 616.540{1)4 or NRS 616.190{2),5 or other
applicable provisions of the Nevada Industrial Insurance Act.
____________________

2
NRS 616.540 3. Should the medical board not be in agreement as to the findings, conclusions and
recommendations, the members of the medical board shall submit separate and individual reports to the
commission.
that plaintiff's disability and incapacity is permanent and total) as to any subsequent action
that may be taken by the medical board or by the commission in accordance with the
provisions of NRS 616.535(1)
3
or NRS 616.540(1)
4
or NRS 616.190(2),
5
or other
applicable provisions of the Nevada Industrial Insurance Act. The judgment is modified
accordingly.
Subject to the last preceding paragraph, the judgment is affirmed with costs.
____________________

3
616.535 1. Any employee entitled to receive compensation under this chapter is required, if requested by
the commission, to submit himself for medical examination at a time and from time to time at a place reasonably
convenient for the employee, and as may be provided by the rules of the commission.

4
616.540 1. If on a claim for compensation by an injured employee any medical question or the extent of
disability of an injured employee shall be in controversy, the commission shall refer the case to the medical
board.

5
616.190 2. The jurisdiction of the medical board shall be limited solely to the consideration
and determination of medical questions and the extent of disability of injured employees referred by the
commission. * * *
____________
76 Nev. 113, 113 (1960) Cranford v. State
MELVIN L. CRANFORD, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 4218
March 15, 1960 349 P.2d 1051
Appeal from the Sixth Judicial District Court, Humboldt County; Merwyn H. Brown,
Judge.
Defendant was convicted of second degree murder and from the judgment of the lower
court the defendant appealed. The Supreme Court, McNamee, C. J., held, inter alia, that no
prejudicial error appeared in any of the errors assigned.
Affirmed.
Llewellyn A. Young, of Lovelock, and Clifton Young, of Reno, for Appellant.
Roger D. Foley, Attorney General, State of Nevada; James A. Callahan, District Attorney,
Humboldt County; and Richard G. Campbell, Associate District Attorney, Humboldt County,
for Respondent.
1. Criminal Law.
In murder prosecution, wherein after jury was selected and counsel for accused given opportunity to
make an opening statement he attempted to augment his statement with a placard on blackboard which
purported to define the elements of certain types of homicide, trial court properly refused to permit such a
demonstration on ground that counsel was limited in such statement to a relation of facts he intended to
show by his evidence, and that use of placard was an attempt to present to jury the law involved in the case.
2. Criminal Law.
In murder prosecution, wherein during direct examination of accused, objection was made by the state to
an interrogatory which resulted in the court's saying There is no evidence in here up to this point of the
deceased being the aggressor. The objection is sustained, the court's comment was not prejudicial in view
of state of record at that time when only evidence of incident resulting in victim's death was testimony of
accused that he had fired two shots as a warning to victim and that in approaching victim accused grabbed
him and turned him around showing that accused, and not the deceased, was the aggressor.
3. Homicide.
In murder prosecution, accused was precluded from claiming error in refusing him permission to testify
as to his knowledge of reputation of deceased for violence, where question asked of accused by his counsel
was Do you know anything of his reputation for peace and violence?, and court indicated that if counsel
had asked accused if he knew what deceased's reputation in community for peace and quiet was and, if so,
whether it was good or bad court would allow such inquiry, and counsel failed to proceed further along
such line of questioning.
4. Homicide.
In prosecution for murder which occurred on September 23, 1957, wherein after accused had testified
that he had had a meeting and conversation with the victim on July 15, 1957, his counsel offered evidence
to show that in such conversation accused had warned victim to stay away from accused's wife, such offer
of proof was properly rejected on ground that what happened in July was no defense to homicide on
September 23, and such ruling was not prejudicial to accused notwithstanding that evidence of prior
difficulties between accused and deceased under some circumstances might be admissible
to show accused's malice.
deceased under some circumstances might be admissible to show accused's malice.
5. Homicide.
In prosecution for murder, testimony tending to show that deceased during a certain period had been
carrying on an affair with accused's wife at a time which was more than five and a half months before the
homicide and subsequent to time that wife had commenced an action for divorce against accused was
properly rejected since even if accused had acquired knowledge of such affair such acquisition would have
taken place long before date of homicide and remoteness in time would preclude reduction of crime from
murder to manslaughter. NRS 200.060.
6. Criminal Law.
In murder prosecution wherein accused requested permission to re-enact in court what happened on porch
at time of assault which resulted in victim's death, wherein in denying request court said He can describe it
as he wants to and accused then described in detail his version of what happened, there was no abuse of
discretion.
7. Witnesses.
In prosecution for murder which occurred on September 23, 1957, wherein accused's testimony on direct
examination was intended to show conduct which might warrant jury in finding him guilty only of
manslaughter because accused had been a hard-working, industrious family man dedicated to welfare of his
wife and children for period from June 1956 to date of homicide, the state on cross-examination was
properly permitted to question accused regarding his whereabouts during periods between December 27,
1956 and February 11, 1957, and from March 27, 1957 until 50 days thereafter wherein accused disclosed
that he had been in jail during both of such periods thus curtailing his ability to support his family during
such periods, since such questions were material both to the issues and to impeachment.
8. Criminal Law.
In murder prosecution, wherein during cross-examination accused was asked if he knew whether his wife
had knowledge of certain events that had transpired and he answered I don't know, you will have to ask
her about that, whereupon counsel for the state informed accused that his wife could not testify unless he
consented and accused's counsel advised accused not to consent, in absence of any objection to procedure
in trial court accused could not claim error for the first time on appeal since in absence of any objection,
court need not make any ruling which could be deemed excepted to. NRS 175.525.
9. Criminal Law; Witnesses.
In murder prosecution wherein on direct examination a witness had testified that during night of shooting
he had seen accused's wife and deceased sitting at a bar when accused walked in, and when asked if either
had placed his arms around the other he replied Mrs. Cranford did, yes, put her arm around deceased and
on cross-examination he denied he had made a statement that they both had their arms around each other
* * * they were sitting there with their arms around each other when he came in", it
was for trial court to determine whether a proper foundation had been laid for
introduction of evidence of inconsistent statement, and determination of such matter
would not be disturbed on appeal, since if it was relevant to issues whether one or
both had arms around each other then in order to prove an inconsistent statement
with respect thereto, the laying of a proper foundation would be required before
inconsistent statement could be shown through testimony of a third party.
other * * * they were sitting there with their arms around each other when he came in, it was for trial court
to determine whether a proper foundation had been laid for introduction of evidence of inconsistent
statement, and determination of such matter would not be disturbed on appeal, since if it was relevant to
issues whether one or both had arms around each other then in order to prove an inconsistent statement
with respect thereto, the laying of a proper foundation would be required before inconsistent statement
could be shown through testimony of a third party.
10. Criminal Law.
Refusal to give offered instruction was not error where instructions given properly covered subject matter
of offered instruction.
11. Criminal Law; Homicide.
In murder prosecution, offered instructions pertaining to self-defense and defense of habitation were
properly refused where subject of self-defense was fully covered by instructions as given, and there was
nothing in evidence from which a jury could infer that accused in his assault upon deceased was defending
accused's or any one else's habitation.
OPINION
Appellant was found guilty by jury verdict of second degree murder. Appeal is taken from
the judgment based on such verdict.
Appellant and his wife became estranged, and in February 1957 she commenced action
against him for divorce. At that time there were two children, the issue of the marriage, and in
addition a 13-year-old daughter of the wife by a former marriage. A fourth child was born in
July 1957.
The evidence justifies the conclusion that the appellant and his wife were living separate
and apart from February 1957 to the 23rd day of September 1957, when the assault took place
resulting in the death of one Schutt. There was some evidence that a reconciliation had been
attempted and that appellant had been in the home which his wife had rented and where she
was living with the children.
On September 22, 1957, appellant who had been working in Beowawe came to
Winnemucca with the stated purpose of seeing his wife and children.
purpose of seeing his wife and children. He went to said house and found that the children
were alone and the oldest child, pursuant to directions from her mother, would not permit him
to enter. Thereafter, he planned to rent a hotel room for the night and in preparing to do so, he
came across his wife and Schutt sitting in a bar together. He approached them and threatened
to harm Schutt if the association between Schutt and appellant's wife did not stop. Soon
thereafter and about 3:00 A. M., September 23, Schutt and Mrs. Cranford left the bar, entered
a taxi and went to her home. Appellant followed in his own automobile. Upon arriving at the
home, Mrs. Cranford went to the door and ascertaining that the children were all right, she
returned to the taxi to get Schutt, and then the two of them proceeded to the front door of the
house. About this time appellant, who had driven up behind the taxi, got out and fired two
shots, which he said were intended as a warning to deceased, and then went up to the front
porch of the house where his wife was in the process of entering the front door. He grabbed
Schutt from behind, turned him around, and placed himself between the door and Schutt.
There is evidence to the effect that a third shot was fired during the interval between the
firing of the first two shots and the time he grabbed Schutt. He then pistol-whipped Schutt
three times on the head and when Schutt sank down on the porch he entered the living room
and commenced hitting his wife with the pistol. She ran out the door, her face bloody,
followed by the oldest child, and stated she was getting the police. Appellant then left and
surrendered himself at the police station. The victim managed to walk a few hundred feet to
the Sonoma Inn and was, from there, taken to the hospital. His death resulted a few hours
later that same day while he was undergoing skull surgery.
Appellant cites eleven errors:
[Headnote 1]
1. After the jury was selected and counsel for appellant given the opportunity to make an
opening statement to the jury, he attempted to augment his statement with a placard on the
blackboard which purported to define the elements of certain types of homicide.
with a placard on the blackboard which purported to define the elements of certain types of
homicide. The trial court refused to permit such a demonstration, holding that counsel was
limited in such statement to a relation of the facts he intended to show by his evidence; and
that the use of said placard was an attempt to present to the jury the law involved in the case.
The court was correct in such ruling. State v. Kendall, 200 Iowa 483, 203 N.W. 806. See 23
C.J.S., Criminal Law sec. 1086, p. 531, n. 61.
[Headnote 2]
2. During the direct examination of appellant, objection was made by respondent to an
interrogatory which resulted in the court saying There is no evidence in here up to this point
of the deceased being the aggressor. The objection is sustained. Appellant insists that such
statement constitutes error because it amounts to a comment by the court upon a question of
fact. At the time the court made such statement, the only evidence of the incident resulting in
Schutt's death was the testimony of the appellant that he had fired two shots as a warning to
Schutt and that in approaching Schutt, he grabbed him and turned him around. This testimony
given by the appellant himself shows that appellant, and not the deceased, was the aggressor.
The court's comment, in view of the state of the record at that time, was not prejudicial.
[Headnote 3]
3. Appellant contends that the court erred in refusing him permission to testify as to his
knowledge of the reputation of the deceased for violence. The exact question asked of
appellant by his counsel was Do you know anything of his reputation for peace and
violence? If appellant's counsel had asked appellant if he knew what deceased's reputation in
the community for peace and quiet was and, if so, whether it was good or bad, the trial court
indicated it would allow such inquiry. Appellant's counsel failed to proceed further along this
line of questioning and he is therefore precluded under these circumstances from claiming
error because of the court's ruling.
because of the court's ruling. See State v. Helm, 66 Nev. 286, 209 P.2d 187.
[Headnote 4]
4. After appellant had testified that he had had a meeting and conversation with Schutt on
July 15, 1957, his counsel offered evidence (in the absence of the jury) to show that in said
conversation appellant had warned Schutt to stay away from his wife. He contends that such
evidence would tend to show the state of appellant's mind on September 23, 1957, the date of
the shooting. In rejecting such offer of proof, the trial court said: What happened in July, any
conversations, certainly isn't a defense to a murder or homicide on September 23rd, and
certainly it wouldn't be a provocation for a killing on September the 23rd. This ruling was
correct. Evidence of prior difficulties between accused and the deceased under some
circumstances might be admissible to show accused's malice. People v. Fleming, 218 Cal.
300, 23 P.2d 28. Its exclusion obviously is not prejudicial to the accused.
[Headnote 5]
5. The trial court rejected offered testimony which tended to show that the deceased
during a certain period had been carrying on an affair with appellant's wife. The said period of
time was more than 5 1/2 months before the homicide and subsequent to the time she had
commenced an action for divorce against appellant. If such an affair had in fact been going
on, it does not appear that appellant was cognizant of it. Appellant contends that the court
erred in rejecting this testimony not that it would be a defense to the charge, but that it might
tend to reduce the degree of the offense. Even if appellant had acquired knowledge of any
such affair, such acquisition would have taken place long before September 23, 1957, and
remoteness in time would preclude reduction of the crime from murder to manslaughter. NRS
200.060; People v. Gingell, 211 Cal. 532, 296 P. 70.
[Headnote 6]
6. Error is claimed in the court's denial of appellant's request to permit appellant to
re-enact in court what happened on the porch at the time of the assault which resulted in
Schutt's death.
what happened on the porch at the time of the assault which resulted in Schutt's death.
It is conceded that a trial court has great discretion in matters of this kind. In denying
appellant's request the court said: He can describe it as he wants to. Appellant then
described in detail his version of what happened. We see no abuse of discretion. This claim of
error is without merit.
[Headnote 7]
7. After appellant had given testimony that he had been a hard working, industrious
family man dedicated to the welfare of his wife and children for the period from June 1956 to
the date of the homicide, the State on cross-examination was permitted to question him
regarding his whereabouts during the periods between December 27, 1956 and February 11,
1957, and from March 27, 1957 until fifty days thereafter. On such cross-examination
appellant disclosed he had been in jail during both of said periods, thus curtailing or
precluding his ability to support his family during these periods. The two periods were within
the entire period covered by direct examination. Appellant's testimony on direct examination
was intended to show conduct which might warrant the jury in finding him guilty only of
manslaughter. Therefore, questions on cross-examination were material both to the issues and
to impeachment. State v. Emmanuel, 42 Wash.2d 1, 253 P.2d 386. The case cited by
appellant, State v. Huff, 11 Nev. 17, is not in conflict with the ruling of the trial court on this
point. There was no error in permitting such cross-examination.
[Headnote 8]
8. During the cross-examination of appellant, he was asked if he knew whether his wife
had knowledge of certain events that had transpired. He answered: I don't know, you will
have to ask her about that. Whereupon counsel for respondent informed appellant that his
wife could not testify unless he consented. Appellant was then asked if he would give such
consent. Appellant asked his counsel for advice and his counsel stated that he had advised
appellant not to consent.
that he had advised appellant not to consent. It is unnecessary to determine whether this
procedure would have been prejudicial error if proper objection had been made at the trial,
because in the absence of any objection thereto in the trial court, appellant cannot claim error
for the first time on appeal. State v. Ceja, 53 Nev. 272, 298 P. 658, 2 P.2d 124. In the absence
of any objection, the court is not called upon to make any ruling which could be deemed
excepted to under NRS 175.525.
[Headnote 9]
9. Error is claimed in the court's refusal to permit impeachment of one Erquiaga, a
prosecution witness, by showing through a third party a prior inconsistent statement made by
said witness.
On direct examination, Erquiaga had testified that during the night of the shooting he had
seen appellant's wife and the deceased sitting at a bar when appellant walked in. When asked
if either one of them had placed his arms around the other, he replied: Mrs. Cranford did,
yes, put her arm around Andy Schutt. On cross-examination he denied he had made a
statement to one Joe Williams that they both had their arms around each other * * * they
were sitting there with their arms around each other when he came in.
If it was relevant to the issues whether one or both had arms around each other, then in
order to prove an inconsistent statement with respect thereto, the laying of a proper
foundation would be required (in order to inform the witness concerning that which he is
being asked about) before the inconsistent statement could be shown through the testimony of
a third party.
Here the foundation consisted of asking Erquiaga preliminary questions whether he ever
made the particular statement to Joe Williams on or about January 9 or 10, and in describing
who Williams was. The questions were not specific as to place nor with respect to any other
details as to the occasion. Although the witness remembered having a conversation with
Williams, he did not remember the particular conversation embodied in the question. It was
for the trial court to determine whether Erquiaga's attention was adequately called to the
alleged utterance, or in other words, whether a proper foundation had been laid for the
introduction of evidence of an inconsistent statement.
determine whether Erquiaga's attention was adequately called to the alleged utterance, or in
other words, whether a proper foundation had been laid for the introduction of evidence of an
inconsistent statement. McCall v. Washington Co-operative Farmers Ass'n., 35 Wash.2d 337,
212 P.2d 813; Wigmore on Evidence, sec. 1029 (3d ed. 1940). Its determination of such
matter will not be disturbed on appeal.
[Headnote 10]
10. Appellant contends that the trial court erred in its refusal to give his offered
instruction concerning the degree of proof necessary to establish a complete defense. This
assignment is without merit. An examination of all of the instructions given reveals that the
subject matter of this offered instruction was fully and properly covered by the instructions of
the court as given.
[Headnote 11]
11. The court refused to give instructions offered by appellant pertaining to self defense
and defense of habitation. Its action in this regard was proper. The subject of self defense was
fully covered by the court's instructions as given. There was nothing in the evidence from
which a jury could infer that appellant in his assault upon the deceased was defending his or
anyone else's habitation.
No prejudicial error appearing, the judgment is affirmed.
____________
76 Nev. 123, 123 (1960) Schmutzer v. Schmutzer
CARYL A. SCHMUTZER, Appellant, v.
ROBERT C. SCHMUTZER, Respondent.
No. 4243
March 17, 1960 350 P.2d 142
Department No. 4.
Proceeding on motion to modify a judgment and decree of divorce. The trial court entered
an order of modification unsatisfactory to former wife and she appealed. The Supreme Court,
McNamee, C. J., held, inter alia, that where divorce judgment awarded to wife as her sole and
separate property dwelling house of the parties, with the express proviso that husband pay off
the balance owing on the dwelling house, and award of the house was not subject to any
conditions as to habitation or retention, judgment in regard to the house became final six
months after date of entry thereof, and the court was without jurisdiction to modify such
judgment so as to relieve husband from obligation of paying the balance owing on the
dwelling, even though wife and children of the parties had moved out of the house and wife
had sold it.
Affirmed with directions.
Jack J. Pursel, of Las Vegas, for Appellant.
Harry E. Claiborne, of Las Vegas, for Respondent.
1. Divorce.
Where a divorce judgment awarded to wife as her sole and separate property dwelling house of the
parties, with the express proviso that husband pay off the balance owing on the dwelling house, and award
of the house was not subject to any conditions as to habitation or retention, judgment in regard to the house
became final six months after date of entry thereof, and the court was without jurisdiction to modify such
judgment so as to relieve husband from obligation of paying the balance owing on the dwelling, even
though wife and children of the parties had moved out of the house and wife had sold it. NRCP 60(b).
2. Divorce.
In modifying decrees of divorce with respect to child support, the court exercised its discretionary powers
conferred upon it by statute. NRS 125.140.
3. Divorce.
In proceeding on application by former husband for modification of, among other things, support
provisions of divorce decree, evidence, including testimony that husband's income had diminished from
$16,000 per annum net when the decree was entered to about $11,000 net at time of hearing on the motion,
was sufficient to show that entry of a modification order reducing support was not an abuse of discretion.
OPINION
This is an appeal from an order modifying a judgment and decree of divorce.
Appellant was the plaintiff and respondent was the defendant in the lower court. They
were divorced on August 1, 1955. In addition to dissolving the marriage, the decree awarded
custody of the two minor children to the plaintiff wife, required defendant to pay plaintiff
$300 per month for the support of the children, and made a division of the property of the
parties.
The dwelling house of the parties was awarded to the wife as her sole and separate
property with the express proviso that defendant shall pay off the balance owing on the
aforesaid dwelling house by making timely payment of all amounts owing thereon as the
same become due, including interest and insurance.
The court retained jurisdiction of the action only with respect to the custody and support of
the minor children.
We are now concerned with those provisions of the decree which pertain to child support
and to the said dwelling house.
On June 19, 1958 respondent served and filed his motion to modify the decree
commensurate with the change of circumstances of the defendant.
On July 27, 1959 the lower court made its order modifying the decree of divorce by
reducing child support payments to $85 per month per child, and by relieving respondent
from the obligation of paying any of the $4,800 balance which remained owing on the
dwelling. It appears from the record that the order regarding the $4,800 while favorable to
respondent was made over the objection of respondent's counsel.
objection of respondent's counsel. This becomes significant in the determination of costs.
It is to be noted that respondent's motion was based upon the change of circumstances of
the defendant. The lower court, apparently without objection of either party, received
evidence of the changed circumstances of both parties. Evidence was presented to the court
which showed that since the decree (1) appellant had remarried and had sold the dwelling
house; (2) respondent's earnings had decreased; (3) respondent was required to contribute to
the support of his aged mother; and (4) respondent was delinquent in the payments on the
balance due on the dwelling house.
[Headnote 1]
The judgment in all respects except as to custody and support of the minor children
became final upon the expiration of six months after August 1, 1955, the date the judgment
was entered. NRCP 60(b); Schneider v. District Court, 64 Nev. 26, 176 P.2d 797. See
Helvering v. Fuller, 310 U.S. 69, 60 Sup.Ct. 784, 84 L.Ed. 1082. The court therefore was
without jurisdiction to modify the judgment so as to relieve respondent from that obligation
imposed by the judgment of paying the $4,800 balance remaining owing on the dwelling.
This was conceded by both parties during the oral argument.
It is true that the learned judge below in his decision on modification stated that he was of
the opinion that the Hon. Ryland G. Taylor [the judge who presided over the divorce trial and
who signed the judgment which presently is the subject of modification] had no other
thought than that the plaintiff and the minor children would live in this home, and that was
the purpose of the order, namely to continue a place of abode for the wife and children.
Whether such was in fact Judge Taylor's motive in awarding the dwelling to the wife is mere
conjecture, and could not convert the nature of this award to child support, which would be
subject to modification, in view of Judge Taylor's express findings that the wife was to have
said property as her sole and separate property without any conditions requiring habitation
therein or restricting the sale thereof.
Under NRS 125.140, trial courts are empowered to modify decrees of divorce relative to
support of minor children as may seem necessary and proper at any time during their
minority, whether or not jurisdiction for such purpose was expressly retained in the decree.
[Headnote 2]
In modifying decrees of divorce with respect to child support, a court exercises the
discretionary powers conferred upon it by said statute. Goodman v. Goodman, 68 Nev. 484,
236 P.2d 305. Our concern on appeal with this part of the modification order is only whether
the action of the court below constituted an abuse of discretion.
[Headnote 3]
We do not have before us a complete record of the proceedings resulting in the
modification of the decree, and it appears that no stenographic report was made of the
testimony or other evidence considered by the lower court upon the hearing of the motion to
modify. The written decision of the court contains the following:
As to the minor children, the Court must make the observation that the children have
been cared for in at least semi-luxury, that not only have all of their needs been supplied, but
in addition thereto the wife has been able to deposit monies in the savings accounts for the
children's benefit, to one, the sum of $1100.00 and to the other, the sum of $900.00. This is
indeed commendable. But in this action the husband has shown substantial evidence that his
income has diminished from $16,000.00 per annum net when the decree was entered to about
$11,000.00 net at the time of the hearing. He has satisfactorily shown to the court the burden
that are imposed upon his earnings and that his payments to the plaintiff in this matter amount
to $200.00 a month [as part of the property awarded to the wife] which are not subject to
change. The burdens are more than the Court feels the defendant should justifiably bear.
From the state of the record it does not appear that the court below abused its discretion in
modifying the provisions for child support.
The lower court is ordered to strike that part of the order modifying the decree of divorce
which relieves respondent of paying any sum in reference to the dwelling located at 1334
Maryland Parkway, Las Vegas, Nevada, and including the sum of $4,S00 which was due
on said property at the time the same was sold by appellant.
order modifying the decree of divorce which relieves respondent of paying any sum in
reference to the dwelling located at 1334 Maryland Parkway, Las Vegas, Nevada, and
including the sum of $4,800 which was due on said property at the time the same was sold by
appellant. The said order appealed from in all other respects is affirmed. No costs are
allowed.
____________
76 Nev. 127, 127 (1960) Baker v. Baker
VITA MARIE BAKER, Appellant, v.
CHARLES BAKER, Respondent.
No. 4242
March 21, 1960 350 P.2d 140
Appeal from judgment of the Eighth Judicial District Court, Clark County; George E.
Husband's action for divorce on ground that parties had lived separate and apart without
cohabitation for more than three consecutive years. The trial court entered judgment granting
husband absolute divorce, awarding wife custody of three minor children and support
payments and wife appealed. The Supreme Court, Pike, J., held that although there was
substantial conflict in evidence, findings of trial court as to good faith of husband's residence
in Nevada for the requisite period of time were not clearly wrong, and court did not abuse
discretion in granting divorce to husband despite wife's testimony that during period of
separation she was agreeable to a reconciliation.
Judgment affirmed.
Foley Bros., of Las Vegas, for Appellant.
G. William Coulthard and John Peter Lee, of Las Vegas, for Respondent.
76 Nev. 127, 128 (1960) Baker v. Baker
1. Divorce.
In husband's action for divorce on ground that parties had lived separate and apart without cohabitation
for more than three consecutive years, despite conflicting evidence, findings of court as to the good faith of
husband's residence in State for required period of time before filing complaint for divorce, were not
clearly wrong.
2. Divorce.
In husband's action for divorce on ground that the parties had lived separate and apart, without
cohabitation, for more than three consecutive years, despite wife's testimony that during period parties had
lived separate and apart she was agreeable to a reconciliation, court did not abuse its discretion in granting
divorce to husband who claimed that no reconciliation had been possible so far as he was concerned.
3. Divorce.
In husband's action for divorce on ground that parties had lived separate and apart for more than three
consecutive years, where husband testified that there was no possibility of reconciliation during period
parties had lived apart, a finding of no possibility of reconciliation in support of judgment of divorce to
husband would be presumed.
4. Divorce.
In husband's action for divorce on ground that the parties had lived separate and apart for more than three
consecutive years, where evidence disclosed that husband had during period parties lived apart contributed
to support of wife and three minor children and owned an interest in a partnership as well as an interest in
the home of the parties which they owned as joint tenants, and by decree husband was required to pay for
support of children and to convey to wife his interest in dwelling house together with furnishings, failure to
award alimony to wife as well as to setting aside a portion of husband's interest in partnership, constituting
his separate property, was not an abuse of discretion.
OPINION
The wife appeals from a judgment of divorce in favor of the husband. The husband,
respondent herein, filed his complaint for divorce alleging as a cause for divorce that the
parties had lived separate and apart, without cohabitation, for more than three consecutive
years. The wife filed her answer and also, by counterclaim, sought a judgment of separate
maintenance.
In its decree (filed May 28, 1959) the trial court, besides granting to the husband an
absolute divorce on the ground indicated, awarded to the wife custody of the three minor
children of the marriage, ordered the husband to pay to the wife $350 per month for the
support of the children, and ordered that the husband convey to the wife all of his interest
in the jointly owned dwelling house formerly occupied by the parties.
76 Nev. 127, 129 (1960) Baker v. Baker
besides granting to the husband an absolute divorce on the ground indicated, awarded to the
wife custody of the three minor children of the marriage, ordered the husband to pay to the
wife $350 per month for the support of the children, and ordered that the husband convey to
the wife all of his interest in the jointly owned dwelling house formerly occupied by the
parties.
Appellant asserts error on the part of the trial court in its application of the law of domicil
to the evidence in the case. In part, appellant relies upon remarks of the court, expressing
doubt concerning the husband's residence, made at the time of denying certain motions made
on behalf of the wife at the conclusion of the husband's opening case. However, such
observations made by the trial court, when read in connection with the other remarks of the
court made at the same stage of the trial and more particularly with respect to the court's
express findings relative to respondent's residence, do not indicate any deviation by the court
from the well established principles of the law pertaining to domicil as applied to jurisdiction
for the purposes of divorce. Specifically, the court referred to the decision of this court in
Lamb v. Lamb, 57 Nev. 421, 65 P.2d 872, 875, as presenting a somewhat parallel situation to
the instant case with respect to the residence of the husband, and denied plaintiff's motion to
dismiss which was based upon the husband's contended lack of residence in Nevada. On
residence, the decision in the Lamb case, supra, reads in part as follows: (1) The law of
Nevada relating to residence necessary to confer jurisdiction in divorce cases is well
established. In this case it was necessary for plaintiff to satisfy the jury that his physical
presence in this state for the whole statutory period (NCL 9460) preceding and including
the date of the commencement of his action was accompanied by the intent to make Nevada
his home, and to remain there permanently, or at least for an indefinite time. . . . After a
review of the evidence in said case this court recognized that, although there was a substantial
conflict in the evidence so as to create a doubt in the mind of the reviewing court as to the
good faith of his Nevada residence, it could not be said that the verdict and findings of the
jury were clearly wrong, and the judgment appealed from was affirmed.
76 Nev. 127, 130 (1960) Baker v. Baker
residence, it could not be said that the verdict and findings of the jury were clearly wrong, and
the judgment appealed from was affirmed.
[Headnote 1]
In the instant appeal the evidence is uncontradicted concerning the physical presence of
Baker in this state for the required period of time before filing his complaint for divorce, but
the bona fides of his residence is challenged. There is conflicting evidence on the issue of
Baker's intention to establish his domicil in Nevada and a continuation of that intention
throughout the period of time preceding the filing of his complaint for divorce. We are unable
to conclude that the finding of the trial court sustaining such contended residence was clearly
wrong. There was substantial evidence to support it, and it must stand.
[Headnote 2]
Appellant next assigns as error the granting of a divorce to the husband and contends that
the court abused its discretion in so doing. The evidence with reference to the parties' having
lived separate and apart for more than three consecutive years, and since April 15, 1955, was
uncontradicted. The wife testified that she was agreeable to a reconciliation, but the husband
testified that no reconciliation was possible and that none had been possible during the period
of living apart, so far as he was concerned. Appellant contends that the granting of a divorce,
with the wife being willing to have a reconciliation, and with a lack of evidence of fault on
her part, was an abuse of discretion by the trial court. However, prior decisions of this court
relating to the exercise of the court's discretion in cases involving this cause for divorce,
when applied to the evidence in this case, fail to support this position. George v. George, 56
Nev. 12, 41 P.2d 1059, 1060, 97 A.L.R. 983 (decided by this court when the required period
of living apart was five years rather than three) stated, * * * [I]t is clear that the discretion
which the trial court is called upon to exercise depends not so much upon the comparative
rectitude of conduct of the spouses as upon the probability of their being able to live
together in such a manner as to be for their best interest and the best interest of society."
76 Nev. 127, 131 (1960) Baker v. Baker
probability of their being able to live together in such a manner as to be for their best interest
and the best interest of society. Sutherland v. Sutherland, 75 Nev. 304, 340 P.2d 581;
Fausone v. Fausone, 75 Nev. 222, 338 P.2d 68; Kohlsaat v. Kohlsaat, 62 Nev. 485, 155 P.2d
474; Lagemann v. Lagemann, 65 Nev. 373, 196 P.2d 1018; Jeffers v. Jeffers, 55 Nev. 201, 29
P.2d 351.
[Headnote 3]
Certainly, with the husband's testimony that there was no possibility of a reconciliation,
the court cannot be viewed as having abused its discretion in meeting the above-quoted
requirements for its exercise. Appellant urges that the court made no finding in this regard.
However, with the evidence as stated, such a finding, supporting the judgment, will be
presumed. Dillon v. Dillon, 68 Nev. 151, 227 P.2d 783; Dutertre v. Shallenberger, 21 Nev.
507, 34 P. 449.
The appellant wife also assigns error on the part of the trial court by reason of its refusal
(1) to order the husband to pay her alimony, and (2) to set aside a portion of the husband's
separate property for her support and that of the children. These two assignments may be
considered together.
[Headnote 4]
The parties were married in 1946 and the three minor children of the marriage, as well as
the wife, had been supported by the husband prior to the separation. He continued to
contribute to the support of the wife and the three minor children who lived with her during
the period that the parties were separated preceding the divorce. During such four-year period
of living apart the husband paid to the wife monthly sums aggregating slightly more than the
$350 monthly which the trial judge ordered him to pay for the support of the children. In
addition, the husband paid the taxes on the dwelling house occupied by the wife and the
children, and also paid for certain utilities and miscellaneous expenses. At the trial he
testified in effect that he would be agreeable to continue with such payments in like amount
should the marriage be terminated by divorce. He also testified concerning his earnings from
employment in Las Vegas and his property interests consisting of an interest in the
dwelling house above referred to and of a partnership interest having a value of about
$30,000.
76 Nev. 127, 132 (1960) Baker v. Baker
concerning his earnings from employment in Las Vegas and his property interests consisting
of an interest in the dwelling house above referred to and of a partnership interest having a
value of about $30,000. With this evidence before it, the trial court made the stated provision
for the support of the children by the husband, but made no provision as such for the support
of the wife. The court did enter its judgment that the husband convey to the wife all of his
interest in the dwelling house owned jointly by the parties, together with its furnishings. The
estimated value of the husband's interest in this property does not appear. Both parties had
participated in its acquisition during coverture, with the wife having used the proceeds of a
veteran's loan for which she was eligible by reason of her military service. The evidence
indicates that it was subject to an encumbrance of about $8,000 at the time the divorce was
granted. An award of alimony to the wife, as well as the setting aside of any portion of the
husband's interest in the partnership, constituting his separate property, were both matters
within the discretion of the trial court, and under the evidence we are unable to say that its
action with reference to either was so clearly erroneous as to constitute an abuse of discretion.
Judgment affirmed. No costs are allowed.
____________
76 Nev. 133, 133 (1960) Gunderson v. Barringer
E. M. GUNDERSON, Substituted for RUSSELL TAYLOR, as Guardian of the Person and
Estate of CARLITA RAY, an Infant, Appellant, v. ROBERT E. BARRINGER, L. O.
HAWKINS and HOWARD W. CANNON; IDA ANGELOT RAY, CARL REED, and
RALPH STEINER, as Trustees of the Estate of CARL RAY, Deceased, Respondents.
No. 4200
March 23, 1960 350 P.2d 397
Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
Department No. 2.
Guardian of infant daughter of deceased testator brought action for declaratory judgment
against testamentary trustees and testator's pretermitted heir and his successors in interest.
The lower court rendered an order dismissing the action as to the pretermitted heir and his
successors in interest, and the guardian appealed. The Supreme Court, McNamee, C. J., held
that order should be reversed and District Court should permit guardian to amend complaint
so that it clearly alleged that declaration of rights sought pertained to testator's realty in its
entirety and not just to that part of the property held by testamentary trustees after one-third
interest in realty had been conveyed to pretermitted heir.
Reversed with directions.
(See also 75 Nev. 409, 344 P.2d 676.)
E. M. Gunderson, as guardian of the person and estate of Carlita Ray, an infant, in propria
persona.
Hawkins and Cannon, of Las Vegas, for Respondents.
1. Trust.
If court, in determining that individual, as a pretermitted heir, was entitled to one third of estate of
deceased testator, acted under mistake of fact, then, in absence of laches, waiver, or other legal defense,
any part of the estate improperly received by him, could be impressed with a trust for the benefit of the
trustees under the will.
2. Declaratory Judgment.
Order of District Court dismissing action for declaratory judgment by guardian of infant daughter of
deceased testator as to testator's pretermitted heir, who had been adjudged entitled to one third of estate of
testator, and successors in interest of pretermitted heir would be reversed, and District Court would be
directed to permit guardian to amend complaint so that it clearly alleged that declaration of rights sought
pertained to testator's realty in its entirety and not to just that part held by testamentary trustees after one
third had been conveyed to pretermitted heir, though prayer and certain allegations of complaint could be
construed to mean that guardian sought determination only with respect to trust estate and not with respect
to entire estate left by testator, where evident intention of guardian was for determination of rights of
parties in and to entire property which originally comprised testator's estate and not just to two-thirds
interest which became vested in trustees on final distribution.
OPINION
Appellant filed in the court below a complaint for declaratory judgment. Appeal is from
the order dismissing the action as to defendants Barringer, Hawkins, and Cannon.
Matters pertaining to the estate of Carl Ray, deceased, have had the consideration of this
court over the past nine years. The parties to the present action all are interested in said estate
or in property that was a part of said estate at the time of decedent's death. As a result of our
several decisions certain rights of the parties in and to certain of the assets have been
adjudicated. Appellant has undertaken to allege in said complaint our several decisions, and
seeks a declaration of the present rights of the various parties to this action as a result of these
decisions.
It becomes necessary to give a historical outline of the prior proceedings pertaining to this
estate.
The will of Carl Ray, deceased, was admitted to probate in Department 1 of the Eighth
Judicial District Court in and for the County of Clark. Thereafter respondent Barringer filed a
petition in that court seeking a share of the estate as a pretermitted heir. The petition was
granted and the court decreed that Barringer was entitled to one third of the estate, after
certain deductions.
petition was granted and the court decreed that Barringer was entitled to one third of the
estate, after certain deductions. This decision was sustained on appeal. In re Carl Ray, 69
Nev. 204, 245 P.2d 990.
Thereafter Ida Angelot Ray, the widow of Carl Ray, commenced an independent action in
Department 2 of said court for the specific performance of an antenuptial agreement under
which the decedent, Carl Ray, agreed to devise certain property to her in trust. This contract
provided that the decedent would make a will wherein all of his property would be
bequeathed to a trustee with a provision that his said widow would receive one half the net
proceeds of the trust estate. The agreement further provided that the provisions of the
agreement would be in lieu of any other claim against decedent's estate which she might have
by virtue of their marriage. The decedent executed his will substantially in compliance with
said antenuptial agreement, and in addition provided that the remaining one half of the net
proceeds of the trust was to go to Carlita Nancy Ray, the minor child of decedent and his
wife, Ida Angelot Ray. The trial court upheld the validity of this contract and ordered its
enforcement. Its judgment was affirmed on appeal. Barringer v. Ray, 72 Nev. 172, 298 P.2d
933.
In the due course of the administration of the estate, and pursuant to the decision in the
case of In re Carl Ray, supra, a one-third interest in certain land in Las Vegas, Nevada
(comprising the chief asset of said estate in Nevada) was conveyed by the estate to Barringer.
Thereafter upon final distribution of the estate, the remaining two-thirds interest in said land
passed in trust to the trustees named in the will.
As must be apparent from the foregoing, it was the intention of the testator that all of his
estate (except for certain minor bequests) was to be distributed to the trustee or trustees
named in his will in trust for his widow and minor child who were to receive the net proceeds
therefrom in equal portions, all consistent with the covenants contained in the antenuptial
agreement. The existence of Barringer and the fact that he would be awarded one third of the
estate before the commencement of the trust was not contemplated by the testator at the time
he executed his will, or brought to the attention of the court when it ordered distribution
to Barringer as a pretermitted heir to one third of the estate.
at the time he executed his will, or brought to the attention of the court when it ordered
distribution to Barringer as a pretermitted heir to one third of the estate. In other words, after
the determination of the validity of the antenuptial agreement and the legal effect thereof, was
Barringer then entitled to retain one third of the entire estate, or was he entitled as a
pretermitted heir to share only in that portion of the estate which the decedent could without
restriction dispose of by will?
[Headnote 1]
If the court in determining that Barringer as a pretermitted heir was entitled to one third of
the estate acted under mistake of fact, then in the absence of laches, waiver, or other legal
defense any part of the estate improperly received by him, could be impressed with a trust for
the benefit of the trustees under the will. Villalon v. Bowen, 70 Nev. 456, 273 P.2d 409. If
such could be accomplished, the relative interests of the minor child and the widow, or at
least of the minor child, would be materially affected.
This court in referring to the interests of said minor child stated in the case of Ray v.
Barringer, 73 Nev. 212, 314 P.2d 378: Because of unusual developments in the probate
proceedings, the interests of the minor child quite clearly demand attention and a
determination of her rights under present circumstances should be had.
Apparently from this suggestion, the trustees under the will commenced an action for a
declaratory judgment to determine the rights and interests of the various defendants in the
trust estate. One of the defendants therein was Barringer, and upon his disclaimer of any
interest in the trust estate, the trial court dismissed the action against him. This judgment was
affirmed on appeal. Ray v. Barringer, 75 Nev. 168, 336 P.2d 772.
Neither Barringer nor his successors in interest, Hawkins and Cannon, have ever claimed
any interest in the trust estate, and they of course should not be named parties in an action to
declare the extent of the interest of those parties claiming any part of the trust estate.
interest of those parties claiming any part of the trust estate.
They do, however, claim a one-third interest in the Professional Building, the name by
which said real property is known and which became the major part of the estate of Carl Ray
upon his death. If their interest in said building or any part thereof was improperly acquired
through a mistake of fact, an action to determine such matter would be proper. Villalon v.
Bowen, supra.
It is contended by respondents Barringer, Hawkins, and Cannon that the present complaint
seeks to determine the rights of said respondents only with respect to the trust estate and not
with respect to the entire estate left by decedent Carl Ray. While the prayer of the present
complaint and certain of the allegations therein could be so construed, the evident intention of
the appellant is for a determination of the rights of the parties in and to the entire property
which originally comprised the estate and not just to the two-thirds interest which became
vested in the trustees upon final distribution.
[Headnote 2]
The order dismissing the action as to defendants Barringer, Hawkins, and Cannon is
reversed, and the trial court is directed to permit the appellant to amend the complaint so that
it is clearly alleged that the declaration of rights sought pertains to the real property in its
entirety and not to just that part thereof now held by the said testamentary trustees.
____________
76 Nev. 138, 138 (1960) Ex Parte Boley
In the Matter of the Application of VERN BOLEY and
O. D. CHARLESWORTH For a Writ of Habeas Corpus.
No. 4297
March 24, 1960 350 P.2d 638
Original proceedings in habeas corpus. The Supreme Court, Pike, J., held, inter alia, that
an information charging that defendants used a cheating or thieving device to facilitate
removing contents of slot machine which was the property of another sufficiently charged
violation of criminal statute prohibiting use of cheating device to facilitate removing contents
from slot machine, which offense is a gross misdemeanor and within jurisdiction of district
court and, since defendants were not prejudiced by the form of such information, application
for writ of habeas corpus would be denied.
Writ denied.
Harry E. Claiborne, of Las Vegas, for Petitioners.
Roger Foley, Attorney General, and Roland W. Belanger, District Attorney, Pershing
County, for State of Nevada.
1. Habeas Corpus.
The attack in habeas corpus proceeding on sufficiency of information constituted a collateral attack upon
judgment upon which commitments were issued, and to be successfully maintained it must be shown that
such judgment was void for reason that court which entered it was without jurisdiction to do so. NRS
173.090, 173.100, subd. 1, 173.210, 173.300, 173.310, subd. 6, 173.320.
2. Habeas Corpus.
The writ of habeas corpus is not supervisory in character and does not perform function of an appeal and
cannot be used as a substitute for a demurrer or motion to quash the information.
3. Habeas Corpus.
The test of sufficiency of information, challenged on petition for habeas corpus which constituted a
collateral attack upon judgment upon which commitments were issued, differs from that which would apply
on demurrer, motion to quash, motion in arrest of judgment or on appeal. NRS 173.090, 173.100,
subd. 1, 173.210, 173.300, 173.310, subd. 6, 173.320.
4. Habeas Corpus.
In habeas corpus proceeding, the form of information was not open to review unless petitioner
suffered prejudice from it.
not open to review unless petitioner suffered prejudice from it. NRS 173.090, 173.100, subd. 1,
173.210, 173.300, 173.310, subd. 6, 173.320.
5. Habeas Corpus.
An information charging that defendants used a cheating or thieving device to facilitate removing
contents of slot machine which was the property of another sufficiently charged violation of criminal
statute prohibiting use of cheating device to facilitate removing contents from slot machine, which offense
is a gross misdemeanor and within jurisdiction of district court and, since defendants were not prejudiced
by the form of such information, application for writ of habeas corpus would be denied. NRS 3.190,
subd. 1(g), 4.370, subd. 3, 173.090, 173.100, subd. 1, 173.210, 173.300, 173.310, subd. 6, 173.320,
465.080.
OPINION
This is an original petition for a writ of habeas corpus. Petitioners, each serving a sentence
in the Pershing County jail, after trial by the court, conviction and sentence, for a gross
misdemeanor, and after dismissal of their appeal to this court, seek release from custody, each
contending that the court issuing the commitment was without jurisdiction, as the information
upon which each was adjudged guilty did not charge a public offense.
The information charged the petitioners herein, Boley and Charlesworth, with a violation
of NRS 465.080, * * * in that they did then and there use a cheating or thieving device to
facilitate removing the contents of a 25() cent slot machine, which said slot machine was the
property of * * *. Pertinent provisions of the criminal statute alleged to have been violated
read as follows: 1. It shall be unlawful for any person * * * to use * * * any cheating or
thieving device to facilitate removing from any slot machine, * * * any part of the contents
thereof.
Each of the petitioners entered a plea of not guilty, but the contention that the information
did not allege facts sufficient to charge a violation of the statute is raised for the first time by
this petition.
Under statutes applicable to informations, the offense charged may be stated in plain,
concise language and in such manner as to enable a person of common understanding to
know what is intended {NRS 173.090, 173.210, and 173.310, subd.
in such manner as to enable a person of common understanding to know what is intended
(NRS 173.090, 173.210, and 173.310, subd. 6); and no information shall be deemed
insufficient by reason of any defect in matters of form which shall not tend to the prejudice of
the defendant (NRS 173.100, subd. 1). By statute it is also provided that the information need
not strictly pursue the words used in a statute to define a public offense, but other words
conveying the same meaning may be used. (NRS 173.300) Any defect or imperfection in the
information as to form shall not affect the judgment thereon, unless it tends to prejudice a
substantial right of the defendant. (NRS 173.320)
[Headnotes 1-4]
The attack by petitioners in this habeas corpus proceeding upon the sufficiency of the
information constitutes a collateral attack upon the judgment upon which the commitments
were issued. To be successfully maintained it must be shown that such judgment was void for
the reason that the court which entered it was without jurisdiction to do so. The writ is not
supervisory in character and does not perform the function of an appeal and cannot be used as
a substitute for a demurrer or motion to quash the information. Ex Parte Breckenridge, 34
Nev. 275, 277, 118 P. 687; Roehm v. Woodruff, 64 N.M. 278, 327 P.2d 339, 340. Without in
any way implying that the information here under consideration was insufficient in its
allegations, we must recognize that, considering the nature of the collateral attack here being
made, the test of its sufficiency differs from that which would apply on demurrer, motion to
quash, motion in arrest of judgment or on appeal. (See Ex Parte Breckenridge, supra, and
Roehm v. Woodruff, supra, citing California cases at p. 341, column 1.) Also, in this
proceeding, the form of an information is not open to review unless the petitioner has
suffered prejudice from it. NRS 173.320. Roehm v. Woodruff, supra, p. 341.
[Headnote 5]
This court, in Ex Parte Moriarity, 44 Nev. 164, 172, 191 P. 360, a habeas corpus
proceeding where it was contended that the indictment did not charge a crime because it
consisted of generalities and conclusions, approved the rule as stated by the Supreme
Court of California in Ex Parte Ruef, 150 Cal.
contended that the indictment did not charge a crime because it consisted of generalities and
conclusions, approved the rule as stated by the Supreme Court of California in Ex Parte Ruef,
150 Cal. 665, 89 P. 605. There it was claimed that the indictments failed to state a public
offense. It was pointed out in the Ruef case that, on habeas corpus, the inquiry into the
sufficiency of an indictment is limited, and that where the indictment purports or attempts to
state an offense of a kind of which the court assuming to proceed has jurisdiction, the
question whether the facts charged are sufficient to constitute an offense of that kind, will not
be examined into on habeas corpus. In the present case the indictment unquestionably sought
to charge a violation of a criminal statute, namely use of a cheating device, to facilitate
removing part of the contents from a slot machine, which offense was a gross misdemeanor
and within the jurisdiction of the district court. Ex Parte Breckenridge, supra; NRS 3.190,
subd. 1(g), and NRS 4.370, subd. 3.
Here we do not find any showing of prejudice of a substantial right of either petitioner
occasioned by reason of the form of the information, and under the authorities cited a further
consideration of the asserted insufficiency of the information is not justified.
It is ordered that the writ be denied and these proceedings dismissed.
____________
76 Nev. 142, 142 (1960) State v. Feinzilber
THE STATE OF NEVADA, Appellant, v.
HENRI FEINZILBER, Respondent.
No. 4186
March 29, 1960 350 P.2d 399
Appeal from judgment of the Eighth Judicial District Court, Clark County; John F. Sexton,
Prosecution for assault with intent to kill. The trial court rendered an order granting
defendant's motion to dismiss the information on the ground that defendant had been once in
jeopardy. The State appealed. The Supreme Court, Pike, J., held that trial and acquittal of
defendant on charge of robbery by force and violence did not place defendant in jeopardy
with respect to subsequent charge of assault with intent to kill, though evidence introduced in
robbery prosecution would be required in assault prosecution, where portion of evidence prior
to assault with empty pistol might have sufficed to prove charge of robbery and subsequent
assault with empty pistol might be sufficient to sustain charge of assault with intent to kill.
Judgment reversed.
Roger Foley, Attorney General; George M. Dickerson, for office of District Attorney,
Clark County, Las Vegas, for Appellant.
John F. Mendoza, of Las Vegas, for Respondent.
1. Criminal Law.
Trial and acquittal of defendant on charge of robbery by force and violence did not place defendant in
jeopardy with respect to subsequent charge of assault with intent to kill, though evidence introduced in
robbery prosecution would be required in assault prosecution, where portion of evidence prior to assault
with empty pistol might have sufficed to prove charge of robbery and subsequent assault with empty pistol
might be sufficient to sustain charge of assault with intent to kill. Const. art. 1, 8; NRS 169.170,
173.260, 174.390, 175.455, 200.380, 200.400.
2. Judgment.
A verdict of not guilty to charge of robbery by force and violence, under the record, could be taken only
as a finding of not guilty on particular charge before jury and could not be construed as
determination of validity of defense of alibi giving rise to defense of res judicata in
subsequent prosecution, for assault with intent to kill, in which same evidence would
be required to be introduced as was used in robbery prosecution.
construed as determination of validity of defense of alibi giving rise to defense of res judicata in
subsequent prosecution, for assault with intent to kill, in which same evidence would be required to be
introduced as was used in robbery prosecution.
OPINION
[Headnote 1]
Appeal by the state from an order of the trial court granting defendant's motion to dismiss
an information charging defendant with assault with intent to kill, on the ground that
defendant had been once in jeopardy. Defendant had previously been acquitted, after a jury
trial, on the charge of robbery of one Dorothy Cimino.
Counsel for the state and respondent, in the trial court stipulated that Feinzilber had been
charged with robbery by force and violence, and found not guilty, and that the same evidence
introduced in that case would be required at the trial of the defendant on the subsequent
charge of assault with intent to kill charged in the second information.
The prosecution, on the robbery charge, alleged a violation of NRS 200.380, and on the
subsequent assault with intent to kill a violation of NRS 200.400.
The charging portion of the information in the robbery case alleged that the defendant on
December 13, 1957, * * * did then and there willfully, unlawfully, and feloniously take
personal property, to wit: A black purse containing approximately $100 lawful money of the
United States, and personal effects, from the person of Dorothy Cimino by use of force and
violence and against the will of the said Dorothy Cimino * * *. The corresponding portion of
the information in the instant case charges that on the same date the defendant * * * did then
and there willfully, unlawfully, and feloniously assault Dorothy Cimino with a deadly
weapon, to wit, a .38 Calibre Smith and Wesson revolver, with the intent to kill the said
Dorothy Cimino.
The evidence at the robbery trial shows that at about 8 o'clock in the evening, December
13, 1957, Dorothy Cimino was walking along the edge of the highway near Las Vegas,
Nevada toward a bus stop.
Cimino was walking along the edge of the highway near Las Vegas, Nevada toward a bus
stop. The highway was well traveled and lighted. She was accosted by a man who was the
sole occupant of the automobile he was driving along the highway in the same direction that
she was walking. He asked her if she wanted a ride. She accepted and entered the front seat of
the car. In the ensuing conversation she told the driver that she wished to go to Las Vegas, a
few miles distant in the direction they were traveling. However, after indicating to her that he
was interested in feminine companionship, over her protests he made a U-turn and drove off
in the opposite direction, away from Las Vegas. He ignored her protests and requests that he
let her out of the car. She refused his suggestion that they stop at a hotel on the highway
farther from Las Vegas. Over her protests, he then drove to an unlighted area off the highway.
He asked the victim to sit closer to him and, upon her refusal, he stated that he had a gun, and
proceeded to shoot her five times with the revolver. Later, four of the five bullets which
struck her were recovered, two being removed from her body and two found within the car.
After the shooting he demanded that she give him her purse, which she did. After receiving
the purse containing the money, as referred to in the information filed in the robbery case, the
man then beat her about the head with the .38-calibre revolver referred to in the assault with
intent to kill information.
The victim testified that, after her assailant had shot her a number of times with the
revolver, she heard it click and knew that it was empty. After that he demanded her purse
and she gave it to him. Thereafter he beat her with the revolver, from which all the cartridges
had been fired.
When defendant was arrested in Phoenix, Arizona the car was found in his possession, and
blood of the same type as that of the victim and hair of the same color and characteristics as
the victim's were found on clothing in his possession, the ownership of which he admitted.
An expert witness in the field of ballistics testified that the two bullets removed by surgery
from the victim's body were fired from the same firearm as the two bullets found in the
car.
the victim's body were fired from the same firearm as the two bullets found in the car.
Defendant testified in his own behalf to the effect that he had loaned the automobile to a man
hitchhiker during a period of about three hours while defendant was gambling in a Las Vegas
casino, and denied being in the car when the shooting and beating took place, although the
victim identified him as her assailant.
The state contends that the offense of robbery committed upon Dorothy Cimino was
completed when the robber demanded and received her purse containing the money, and that
the assault and beating about the head with the unloaded firearm was the assault with the
intent to kill Dorothy Cimino charged in the instant information. Appellant also contends that
the trial and acquittal of respondent on the robbery charge was not such a placing of
respondent into jeopardy as to sanction the trial court's order of dismissal. In granting
respondent's motion to dismiss, the trial court stated as its basis for such order its finding that
the essential ingredients or elements of the assault with intent to kill charge were identical or
substantially the same as with the former charge of robbery upon which respondent had been
acquitted. Art. 1, sec. 8 of the Constitution of the State of Nevada reads in part: No person
shall be subject to be twice put in jeopardy for the same offense. NRS 169.170 provides,
No person can be subject to a second prosecution for a public offense for which he has once
been prosecuted and duly convicted or acquitted.
Counsel for respondent, in arguing the motion for dismissal before the trial court, had
referred to the following Nevada statutes:
NRS 173.260, providing that different offenses may be charged in the same indictment as
long as they are in separate counts and * * * all relate to the same act, transaction or event *
* *; that the prosecution is not required to elect between such different offenses or counts in
the information, but the defendant may be convicted of one of the offenses charged.
NRS 174.390, which provides that when the defendant is convicted or acquitted or has
once been placed in jeopardy upon an information, such conviction, acquittal or jeopardy
is a bar to another information for the offense charged in the former, or "* * * for an
offense necessarily included therein * * *."
is convicted or acquitted or has once been placed in jeopardy upon an information, such
conviction, acquittal or jeopardy is a bar to another information for the offense charged in the
former, or * * * for an offense necessarily included therein * * *.
NRS 175.455, which provides that the defendant may be found guilty of any offense, the
commission of which is necessarily included in that with which he is charged.
The trial court sustained defendant's contention that the charge of robbery by force and
violence upon which defendant had been tried and acquitted, included the charge of assault
with intent to kill. Accordingly, having found that Feinzilber had once been in jeopardy, it
entered the order of dismissal which is before us on this appeal.
The elements of robbery appear in the following portion of NRS 200.380, where that
offense is defined as, * * * the unlawful taking of personal property from the person of
another, or in his presence, against his will, by means of force or violence or fear of injury,
immediate or future, to his person or property * * *.
This court in State v. Marks, 15 Nev. 33, 37, outlined the elements of the charge of an
assault with intent to kill as, * * * an unlawful attempt, coupled with a present ability, to
kill another person under such circumstances as would constitute an unlawful killing, had the
death of the person assaulted actually resulted.' More briefly stated, robbery has as its
elements the taking of the property of another from his person or presence through the
application of force or fear. We do not find in the present charge of assault with intent to kill
the essential element of the taking of property found in the offense of robbery. State v.
Pappas, 39 Nev. 40, 41, 152 P. 571. However, it is urged by respondent that the robbery and
the charged assault with intent to kill form part of the same transaction, and authorities are
presented in support of the propositions that double jeopardy is shown, either (1) when the
offense upon which the accused has been placed in jeopardy is so related to the offense
contained in the subsequent charge, regardless of how it may be denominated, that the same
evidence would be used to prove both offenses; and {2) acquittal on either one of the two
charges, under the circumstances, would operate as a defense when pleaded in a
prosecution on the other charge.
the same evidence would be used to prove both offenses; and (2) acquittal on either one of the
two charges, under the circumstances, would operate as a defense when pleaded in a
prosecution on the other charge. In People v. Majors, 65 Cal. 138, 146, 3 P. 597, 603, it was
held, The two crimes, although committed at one time and by the same act [participation in a
conspiracy to commit murder, which eventuated in the murder of two individuals rather than
one] are entirely different in their elements, and the evidence required to convict in one case
[is] very different from that essential to a conviction in the other.
In the robbery trial, the unlawful assault and beating with the unloaded pistol, with intent
to kill Dorothy Cimino, administered to her after the shooting and taking of her money, was
not an element of the robbery offense. The robbery would appear to have been complete
when, after shooting the victim, her assailant demanded and had received her purse and
money as the spoils of the robbery. Under the contention of appellant the additional assault
and beating then administered to the victim substantiated the gravamen of the assault with
intent to kill charge, and this was not a necessary element in the robbery charge. With this
contention we are in agreement. People v. Bentley, 77 Cal. 7, 18 P. 799; Ex Parte Chapman,
43 Cal.2d 385, 273 P.2d 817. Here the essential elements of the two offenses are not the
same, and the second is not an offense necessarily included in the first. The opinion of this
court in State v. Holm, 55 Nev. 468, 471, 37 P.2d 821, 822, stated, The term an offense
necessarily included,' as used in section 10911 N.C.L., [now NRS 174.390] has been held to
mean a lower degree of the crime charged or a minor offense of the same character,
predicated upon the same act, but does not apply to a different act. State v. Gaimos, 53 Mont.
118, 162 P. 596. While all of the evidence may have been properly admitted in the robbery
trial, it appears that the portion of the evidence prior to the assault with the empty pistol
might have sufficed to prove the charge of robbery, and that the subsequent assault with the
unloaded firearm, under the particular circumstances, might be sufficient to sustain the
charge of assault with intent to kill.
circumstances, might be sufficient to sustain the charge of assault with intent to kill.
Cases cited by respondent may be distinguished. For example, Wilcox v. State, 74 Tenn.
571, 40 Am.Rep. 53, presented a situation where the appellants were first convicted of
robbery and subsequently convicted of assault with intent to commit murder of the same
person at the same time and place. There the court held that the assault or violence in the
robbery case was an essential element or ingredient in that offense, as well as in the offense
of assault with intent to commit murder. The appellate court stated that it was one
continuous transaction, in which defendants perpetrated a robbery, by violence, dangerously
wounding the prosecutor * * *, and that having been punished for it in the robbery case, the
appellant should not again be punished for the assault and violence.
Here, for the reasons indicated, while the beating charged to constitute the second offense
took place at the same time and place as the shooting and robbery, we are of the opinion that
the particular circumstances justify the conclusion that the beating, which was administered
to the victim with the firearm after all the elements of the crime of robbery were complete,
was a separate offense for the commission of which defendant here had not been once in
jeopardy. Ex Parte Chapman, supra.
[Headnote 2]
Respondent on appeal argues in effect that, by reason of his defense of alibi on the robbery
charge, the jury's verdict acquitting him on that charge is res judicata as to the second charge.
We find nothing in the record to substantiate this contention. Defendant was on trial before
the jury on the charge of robbery. The fact that the jury returned a verdict of not guilty does
not indicate that such verdict was based upon its recognition of, or giving credence to the
defense of alibi. Just as persuasively it may be said that the jury was not satisfied that the
prosecution had established each of the essential elements of the crime of robbery beyond a
reasonable doubt. Under the present record the jury verdict may be taken only as its finding
of not guilty on that particular charge then before it, and was not res judicata to the
assault with intent to kill charge.
may be taken only as its finding of not guilty on that particular charge then before it, and was
not res judicata to the assault with intent to kill charge. State v. Barton, 5 Wash.2d 234, 105
P.2d 63, 67.
Judgment reversed.
____________
76 Nev. 149, 149 (1960) Viale v. Foley
CHARLES VIALE, Doing Business as LAS GABLES MOTEL; WESTERN MOTELS, Inc.,
a Nevada Corporation, Doing Business as MIRAGE MOTEL; WILLIAM HOPKINSON,
Doing Business as TURF MOTEL; MOTEL MANAGEMENT, Inc., a Texas Corporation,
Doing Business as DESERT ISLE MOTEL; DONALD H. GILBERT, Doing Business as
ORINDA MOTEL; ABRAHAM SCHNIDER and MARJORIE SCHNIDER, Doing Business
as MATER-MEA-INN; LOUIS G. MANGELSON, Doing Business as CARDINAL MOTEL;
J. JULIUS RAPP, Doing Business as FIESTA MOTEL; STEPHEN C. DANIELS, Doing
Business as MIDWAY MOTEL; GEORGE L. WRIGHT, Doing Business as WRIGHTS'
MOTEL & APARTMENTS; DONALD H. GILBERT, and ROBERT ROSOFF, Appellants,
v. GEORGE FOLEY, District Attorney of Clark County, State of Nevada; W. E.
LEYPOLDT, Sheriff of Clark County, State of Nevada; RAY K. SHEFFER, Chief of Police
of the City of Las Vegas, STATE OF NEVADA, Respondents.
No. 4235
March 31, 1960 350 P.2d 721
Department No. 4.
Proceedings wherein appeal was taken from denial of relief by the lower court to persons
contesting validity of statute prohibiting outdoor advertising of hotel and motel rates.
76 Nev. 149, 150 (1960) Viale v. Foley
motel rates. The Supreme Court, McNamee, C. J., held that showing made by protestants was
insufficient to overcome presumption of validity of statute.
Affirmed.
Murray Posin, of Las Vegas, for Appellants.
George Foley, District Attorney, Clark County, of Las Vegas, for Respondents George
Foley and W. E. Leypoldt.
Calvin Cory, of Las Vegas, for Respondent Ray K. Sheffer.
George Dickerson, of Las Vegas, Amicus Curiae.
Statutes come to court clothed with presumption of validity and, if enacted in exercise of police power,
with presumption that legislature intended to promote public welfare.
Burden is upon those attacking statute to make showing that it is unconstitutional.
Legislature, in exercise of its police power, may regulate commercial business advertising but cannot
absolutely prohibit such advertising when not malum in se, as such a prohibition would deprive a person of
property without due process of law.
4. Trade-Marks and Trade-Names and Unfair Competition.
Legislation regulating advertising, even though it does not totally prohibit advertising, will not be
sustained if it is arbitrary or unreasonable and not reasonably related to end sought to be achieved.
While it is proper for trial court to permit introduction of evidence as an aid in its determination of
validity of statute, resulting from its need to promote general welfare, existence of evidence in record of
facts which would justify enactment is not necessary, as existence of facts supporting legislative judgment
is presumed.
6. Statutes.
That statute prohibiting outside advertising of hotel and motel rates is applicable only to counties having
certain minimum populations does not make it other than a general law. NRS 651.040.
7. Statutes.
To be a general law, a statute does not have to be operative every place in state.
76 Nev. 149, 151 (1960) Viale v. Foley
8. Constitutional Law; Trade-Marks and Trade-Names and Unfair Competition.
Statute prohibiting outdoor advertising of hotel and motel rates does not prohibit free speech. NRS
651.040.
Showing made by persons protesting that statute prohibiting outdoor advertising of hotel and motel rate
was invalid as unreasonable regulation was insufficient to overcome presumption of its validity. NRS
651.040.
OPINION
This appeal involves the validity of subsection 2 of NRS 651.040 which prohibits outdoor
or outside advertising of rates by hotels and motels for accommodations.
1

Appeal is taken from the denial of relief in three separate cases, one a suit to enjoin the
enforcement of the statute, and the other two being petitions for writ of habeas corpus brought
by two persons convicted of violating the prohibitory provisions of the statute.
It is conceded by all appellants that motels and hotels are affected with a public interest
and are subject to reasonable regulation by the legislature under its police power in order to
promote the health, safety, morals, and general welfare of the public. It is also conceded that
the advertisement of motel and hotel rates are subject to legislative regulation. Alper v. Las
Vegas Motel Association, 74 Nev. 135, 325 P.2d 767.
The only question for determination is whether NRS 651.040 is a reasonable regulation
insofar as it prohibits outside advertising of such rates.
____________________

1
2. It is unlawful for any owner or keeper of any hotel, inn, motel or motor court in this state to post or
maintain posted on any outdoor or any outside sign:
(a) Advertising with reference to any rates at which rooms or accommodations may be secured at such
establishment.
(b) Advertising which employs terminology with reference to special rates for rooms or accommodations at
such establishment.
(c) Advertising the corporate or fictitious name of such establishment or membership in any organization
the name of which pertains to or can be reasonably construed as pertaining to the rate of rooms or
accommodations at such establishment
76 Nev. 149, 152 (1960) Viale v. Foley
[Headnotes 1, 2]
Statutes come to a court clothed with the presumption of validity, Caton v. Frank, 56 Nev.
56, 44 P.2d 521, and if enacted in the exercise of police powers it is presumed that the
legislature intended to promote the public welfare. Semler v. Oregon State Board of Dental
Examiners, 148 Ore. 50, 34 P.2d 311, aff'd, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086. The
burden is upon those attacking the statute to make a showing that the statute is
unconstitutional. Weaver v. Palmer Bros. Co., 270 U.S. 402, 46 S.Ct. 320, 70 L.Ed. 654;
Serve Yourself Gasoline Stations Ass'n. v. Brock, 39 Cal.2d 813, 249 P.2d 545.
[Headnote 3]
The general rule is that the legislature in the exercise of its police power may regulate
commercial business advertising, but it cannot absolutely prohibit such advertising when it is
not malum in se, because such prohibition would deprive a person of a property right without
due process of law.
2
Serve Yourself Gasoline Stations Ass'n. v. Brock, supra; People v.
Osborne, 17 Cal.App. Supp.2d 771, 59 P.2d 1083. See City of Reno v. District Court, 59
Nev. 416, 95 P.2d 994, 125 A.L.R. 948; Hart v. City of Beverly Hills, 11 Cal.2d 343, 79 P.2d
1080.
It is to be noted that the restrictive legislation found in said subsection 2 pertains to
advertising only; that the advertising which is regulated relates only to room rates; and that
the advertising of room rates is prohibited only with respect to outdoor or outside signs.
Under these circumstances it cannot be said that there is a prohibition against all forms of
advertising nor is there a total prohibition of advertising of room rates. The statute does not
prohibit all outdoor signs or all advertising. Outdoor advertising of the type of
accommodations, services, and accessories afforded is not restricted. Advertising of rates by
newspaper, television, radio broadcasting, handbills, etc., is not prohibited. In other words,
the statute must be construed as restrictive and regulatory of the manner and means of
advertising rates rather than an absolute prohibition against any kind of advertising and
thus involves no absolute denial of a property right without due process of law.
____________________

2
It is conceded that in the regulation of professions, rate advertising may be prohibited. See Semler v.
Oregon State Board of Dental Examiners, supra.
76 Nev. 149, 153 (1960) Viale v. Foley
and regulatory of the manner and means of advertising rates rather than an absolute
prohibition against any kind of advertising and thus involves no absolute denial of a property
right without due process of law.
In the case of City of Daytona Beach v. Abdo, Fla. App., 112 So.2d 398, 401, the District
Court of Appeal of Florida had before it a city ordinance which totally prohibited outdoor
advertising of hotel and motel rates, and in addition thereto the ordinance prohibited outdoor
advertising of free accessories and free services. The court held that such an ordinance was
not unconstitutional on its face.
The opinion recites:
It seems to have been the primary thrust of plaintiff's position before the chancellor, and
his position here, that since the ordinance in question is prohibitory as distinguished from
regulatory in character, it violates his constitutional right to not be deprived of life, liberty or
property without due process of law. He agrees as did the chancellor, that the ordinance might
be valid if it merely sought to regulate the size, type and composition of outdoor advertising
signs. He successfully contended in the trial court, and contends here, that the absolute
prohibition of outdoor advertising of rates for tourist accommodations bears no reasonable
relationship to the general welfare of the community, and is therefore not the proper subject
of regulation under the police power granted to the City in its charter.
The Florida appellate court held in effect that even the total prohibition is not fatal to
constitutionality if the general welfare will be protected, and went on to say that whether the
general welfare would be protected was a factual matter which should not be determined on a
motion for summary judgment. The decree of the lower court was reversed. Certiorari was
denied by the Supreme Court of Florida on March 2, 1960. Abdo v. City of Daytona Beach,
Fla., 118 So.2d 540.
[Headnote 4]
Even in cases where there is no total prohibition of advertising, the regulation will not be
sustained if it is arbitrary or unreasonable, and is not reasonably related to the end sought
to be achieved which in this case is the protection of the traveling public.
76 Nev. 149, 154 (1960) Viale v. Foley
arbitrary or unreasonable, and is not reasonably related to the end sought to be achieved
which in this case is the protection of the traveling public. It was because of this rule that
legislation limiting outside price advertising of gasoline to small placards posted on gas
pumps has been held invalid. Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634. The
purpose of the regulation in that case was to prevent fraud and deception, and it is apparent
that the public could be better protected by signs in excess of a certain prescribed size.
Accord, State v. Guyette, 81 R.I. 281, 102 A.2d 446. The contention of appellants that an
analogy may be drawn from such cases is without merit.
True it is that there is no evidence in the record herein which would tend to show the need
for this particular legislation to protect the traveling public. That the protection of the
traveling public is necessary to promote the general welfare is pointed out, however, in the
case of Adams v. Miami Beach Hotel Association, Fla., 77 So. 2d 465, 467. In that case
without any determination of facts the Florida Supreme Court said: It is a matter of common
knowledge that travelers are often confronted with a sign proposing comfortable lodging at
very modest prices, say, $2.50 to $4.00 per night. He pulls up to such a place and finds that
all rooms at the advertised price are taken and that the only available lodging is two or three
times the price advertised. It can readily be seen that the underlying purpose of the act is to
break up this species of deception. Some of the hotels go so far as to advertise their rates and
then when one gets in and registers he is charged a convention' rate, four or five times the
regular rate advertised. See also City of Sarasota v. Sunad, Inc., Fla.App., 114 So.2d 377.
[Headnote 5]
While it is proper for the trial court to permit the introduction of evidence as an aid in its
determination of the validity of a statute resulting from the need to promote the general
welfare, Ex parte Kair, 28 Nev. 127, 80 P. 463, 113 Am.St.Rep. 817, 6 Ann.Cas. 893, the
existence of evidence in the record of facts which would justify the enactment is not
necessary; the existence of facts supporting the legislative judgment is presumed.
76 Nev. 149, 155 (1960) Viale v. Foley
justify the enactment is not necessary; the existence of facts supporting the legislative
judgment is presumed. Ex parte Nash, 55 Nev. 92, 26 P.2d 353; Clark v. Paul Gray, 306 U.S.
583, 59 S.Ct. 744, 83 L.Ed. 1001; U.S. v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778,
82 L.Ed. 1234. The Legislature, in the first instance, is the judge of what is necessary for the
public welfare, and, in the absence of a showing of arbitrary interference with property rights
or of the lack of a substantial relation between means and a legitimate subject for regulation,
we cannot declare this legislation invalid. * * * [I]t must be presumed that the Legislature has
made a careful investigation in the field, and that it has properly determined that the interests
of the public require this regulation. Serve Yourself Gasoline Stations Ass'n. v. Brock,
supra. In Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 S.Ct. 370, 374, 60 L.Ed. 679,
the court said * * * legislation is not arbitrary, if any state of facts reasonably can be
conceived that would sustain it, and the existence of that state of facts at the time the law was
enacted must be assumed. * * * It makes no difference that the facts may be disputed or their
effect opposed by argument and opinion of serious strength. It is not within the competency
of the courts to arbitrate in such contrariety. * * * It is the duty and function of the legislature
to discern and correct evils, and by evils we do not mean some definite injury but obstacles to
a greater public welfare.
In addition to the presumption of the need of this statute for the promotion of the public
welfare, such need for this type of regulation is further evidenced by the fact that the 1960
session of the Nevada Legislature has enlarged the application of NRS 651.040 to apply to
counties having a population of 10,000 or more persons when theretofore it applied only to
counties of 25,000 or more persons.
[Headnotes 6,7]
The contention of appellants that the statute is discriminatory and arbitrary in violation of
state and federal constitutions in that it is made applicable only to counties having a certain
minimum population and is not therefore a general law is without merit.
76 Nev. 149, 156 (1960) Viale v. Foley
not therefore a general law is without merit. To be a general law, a statute does not have to be
operative every place in the state. State ex rel Shirley v. Lutz, 226 Ala. 497, 147 So. 429;
State v. Dade County, 157 Fla. 859, 27 So.2d 283; Robinson v. Broome Co., 276 App.Div.
69, 93 N.Y.S.2d 662, aff'd, 301 N.Y. 524, 93 N.E.2d 77.
[Headnote 8]
The statute in question does not infringe upon the constitutional guarantee of free speech.
Hirsch v. City and County of San Francisco, 143 Cal.App.2d 313, 300 P.2d 177.
[Headnote 9]
Appellants have failed to overcome the presumption of the validity of the contested
statute. The judgment of the lower court holding constitutional NRS 651.040 and denying
relief to appellants is therefore affirmed.
____________
76 Nev. 157, 157 (1960) Kelley v. Raggio
GUY T. KELLEY, IRENE R. KELLEY, LOUIS TERRANA, ROBERT H. BOYD, FRANK
B. MONROE, NAN SMITH, THELMA STRAIGHT, AGNES THOMAS, HOMER
CHARLES and MELVIN TUFFO, Appellants, v. WILLIAM RAGGIO, C. W. (BUD)
YOUNG, TED BERRUM and ROBERT GALLI, Respondents.
No. 4236
March 31, 1960 350 P.2d 724
Department No. 2.
Affirmed.
[Reporter's note: Appeal to the Supreme Court of the United States was dismissed November 7, 1960
for want of a substantial federal question.]
Gray & Young, of Reno, for Appellants.
William J. Raggio, District Attorney, Washoe County, of Reno, for Respondents.
Roger D. Foley, Attorney General, and John A. Porter, Deputy Attorney General, Amici
Curiae.
OPINION
This is an appeal from a judgment dismissing a complaint to enjoin the enforcement of
NRS 651.040 upon the ground of its unconstitutionality.
It is conceded that the identical principles of law presented herein were urged in the case
of Viale v. Foley, No. 4235, 76 Nev. 149, 350 P.2d 721, the opinion in which has been
handed down today. The decision in that case is determinative of the issues here involved.
Affirmed.
____________
76 Nev. 158, 158 (1960) Rainsberger v. State
JACK RAINSBERGER, Appellant, v. THE
No. 4198
April 6, 1960 350 P.2d 995
Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Proceeding on motion by state to determine degree of crime of murder and the punishment
to be imposed. From adverse judgment of the trial court the defendant appealed. The Supreme
Court, McNamee, C. J., held that where defendant's counsel asked that rule excluding from
the courtroom any witness of adverse party be invoked as to state's witnesses, but the court in
its order invoked it as to all witnesses in the case, refusal to permit a witness for defendant to
testify because he had sat in courtroom for five minutes before being called was prejudicial
error when witness' presence in courtroom was without knowledge of defendant's counsel and
was due to a misunderstanding on part of witness.
Reversed and remanded with instructions.
Samuel S. Lionel, of Las Vegas, for Appellant.
Roger D. Foley, Attorney General, and George Foley, District Attorney, Clark County, for
Respondent.
1. Criminal Law.
Although affidavit in support of motion for continuance to determine degree of crime charged and
punishment to impose was not in strict compliance with court rule, trial court had discretion to grant a
continuance upon showing that application for continuance was made in good faith and not merely for
delay and court did not err in granting state's motion for continuance so that witnesses for state could be
present to testify. District Court Rules, rule 21.
2. Criminal Law.
In prosecution on charge of murder to which defendant entered a plea of guilty, no prejudice resulted to
defendant by permitting state witnesses, whose names were endorsed on information after hearing started,
to testify as to presence of defendant at scene of crime.
3. Criminal Law.
Where defendant's counsel asked that rule excluding from courtroom any witness of adverse party be
invoked as to state's witnesses, but court in its order invoked it as to all witnesses in the
case, refusal to permit witness for defendant to testify because he had sat in
courtroom for five minutes before being called was prejudicial error when witness'
presence in courtroom was without knowledge of defendant's counsel and was due to
misunderstanding on part of witness.
witnesses, but court in its order invoked it as to all witnesses in the case, refusal to permit witness for
defendant to testify because he had sat in courtroom for five minutes before being called was prejudicial
error when witness' presence in courtroom was without knowledge of defendant's counsel and was due to
misunderstanding on part of witness. NRS 48.250.
4. Criminal Law.
It is within discretion of trial court to exclude witnesses from courtroom during criminal proceedings.
NRS 48.250.
5. Criminal Law.
While violation of rule regarding exclusion of witnesses from courtroom may subject a witness to
punishment such as contempt of court and will affect his credibility, it will not of itself operate to render
witness incompetent to testify. NRS 48.250.
6. Criminal Law.
Proceeding for determining degree of crime of murder and for fixing penalty therefor on a plea of guilty
is not a trial.
7. Criminal Law.
Determination of degree of crime of murder requires a judicial determination based on competent
evidence, material and relevant to the question of degree, but no other issue is left to try and the state is not
required to present proof of the corpus delicti.
OPINION
On November 26, 1958 an information was filed in the court below charging appellant
with murder. Appellant appeared for arraignment on November 28, 1958, and at his request
that the court appoint an attorney to represent him, Samuel S. Lionel, Esquire, was appointed
attorney for appellant.
On motion of appellant's counsel the arraignment was ordered continued until December
1, 1958, and at the time so appointed, appellant's counsel requested a further continuance
until December 15, 1958. On the last-mentioned day, and again at the request of appellant's
counsel, the matter was continued until January 9, 1959, at which time the arraignment took
place, appellant pleaded guilty to the charge contained in the information, and the matter was
continued until January 20, 1959 for the purpose of taking evidence to determine the degree
of the crime charged and the punishment to be imposed.
imposed. On January 15, 1959 appellant was present in court with his counsel when the state
made a motion that the hearing to determine degree and punishment be continued from
January 20, 1959 to a later date in order to obtain the attendance of certain witnesses for the
state. Over the objection of appellant, the said hearing was continued until February 19, 1959.
From the evidence presented at the hearing the court concluded that appellant was guilty of
murder in the first degree and fixed the penalty at death.
Appellant has assigned several errors which are hereinafter considered separately:
[Headnote 1]
(1) Error is claimed in the action of the court in granting a continuance so that witnesses
for the state could be present to testify. Rule 21 (formerly Rule 12), Rules of District Court,
requires motions for continuance to be made upon affidavit and further provides that no
continuance will be granted unless the affidavit conforms to the rule. Although the affidavit
was not in strict compliance with Rule 21, the trial court nevertheless had discretion to grant a
continuance upon the showing that the application for continuance was made in good faith
and not merely for delay. Giorgetti v. Peccole, 69 Nev. 76, 241 P.2d 199.
[Headnote 2]
(2) Defendant contends that it was error for the court to permit witnesses to testify for the
state whose names were endorsed on the information after the hearing had started. In State v.
Monahan, 50 Nev. 27, 249 P. 566, this court said: * * * the endorsement of names of
witnesses upon an information is largely a matter of discretion of the court; and, in the
absence of a showing of abuse, or that some substantial injury has resulted to the accused, an
order permitting such endorsement, even after the trial has commenced, does not constitute of
itself reversible error. The witnesses so permitted to testify were agents of the Federal
Bureau of Investigation and their testimony related only to the presence of the defendant at
the scene of the crime.
the crime. Since this fact was admitted by the defendant through his plea of guilty to the
homicide, no prejudice resulted to the defendant. It further appears that the court offered to
grant defendant a continuance in order to meet the testimony of these witnesses but such offer
was rejected.
[Headnote 3]
(3) Error is claimed in the court's refusal to permit defendant's witness, one Padbury, to
testify. The reason for the court's refusal was that said witness had sat in the courtroom for
five minutes before being called. NRS 48.250 provides: If either party require it, the judge
may exclude from the courtroom any witness of the adverse party, not at the time under
examination, so that he may not hear the testimony of other witnesses. Appellant's counsel
asked that the rule be invoked as to the state's witnesses, but the court in its order invoked it
as to all witnesses in the case.
[Headnote 4]
It is to be noted that this section of the Nevada statutes is part of its civil practice sections
and makes it mandatory upon trial courts in civil actions to exclude witnesses when the rule is
invoked. While this state has no statutory requirement for the exclusion of witnesses in
criminal actions, nevertheless it is within the discretion of the trial court to exclude witnesses
from the courtroom during criminal proceedings. See 24 C.J.S., sec. 1872, p. 770.
In 6 Wigmore, Evidence sec. 1837 (3d ed. 1940) the history of the expedient of separating
witnesses in order to detect falsehood by exposing inconsistencies, is traced from ancient
times. The practice, it is stated, of course crossed the water with the common law. Today,
in many jurisdictions of the United States and Canada, statutes have expressly (though
unnecessarily) made provision for sequestration, usually concerning its employment before
committing magistrates.
[Headnote 5]
While a violation of the rule may subject a witness to punishment such as contempt of
court and will affect his credibility it will not of itself operate to render the witness
incompetent to testify.
his credibility it will not of itself operate to render the witness incompetent to testify. State
v. Lewis, 50 Nev. 212, 255 P. 1002; State v. Salge, 2 Nev. 321.
Before the witness Padbury could even state his name, respondent objected to his giving
testimony because he had been sitting in the courtroom. The witness' presence in the
courtroom was without the knowledge of appellant's counsel and was due to a
misunderstanding on the part of the witness. The court sustained the objection and refused to
permit the witness to testify. We think this was prejudicial error. In State v. Salge, supra, this
court said: The record does not show how much of the evidence they heard, whether their
presence was accidental, and a mere oversight in the witnesses, or whether it was a deliberate
disobedience of the order of the court. Nor does the record show that the defendant himself
was at all blamable for their presence. Being a prisoner at the bar, on trial, it is hardly
presumable the defendant could have controlled the witnesses. No misconduct on their part
(in which the defendant did not participate) could deprive the prisoner of his right to have the
testimony. If the witnesses willfully disobeyed the orders of the court, they laid themselves
liable to punishment for contempt, and threw suspicion on their testimony, but did not affect
the defendant's right to have the benefit of their testimony as far as it was worth anything.
(4) Inasmuch as the appellant must be afforded a new hearing we deem it necessary to
comment briefly upon appellant's remaining assignments of error. Evidence in the record was
sufficient (contrary to appellant's contention) to show that appellant's confession was
voluntary and therefore properly admitted in evidence. There was no evidence which
appellant was permitted to present which could compel a different conclusion. Although the
record is silent as to what Padbury's testimony would have been, it is stated in appellant's
brief that if Padbury had been permitted to testify, his testimony might have influenced the
court to disregard the confession. This becomes significant because statements in the
confession were relevant to the determination of the degree of the offense.
in the confession were relevant to the determination of the degree of the offense.
[Headnotes 6, 7]
Appellant contends that there was no evidence independent of the confession to prove the
corpus delicti. This contention is without merit. While we are of the opinion that the corpus
delicti was sufficiently shown by reason of our holding in the case of Sefton v. State, 72 Nev.
106, 295 P.2d 385, it must be remembered that the proceeding under our statute for
determining the degree of the crime of murder and for fixing the penalty therefor on a plea of
guilty is not a trial. State v. Blackwell, 65 Nev. 405, 198 P.2d 280, 200 P.2d 698. The
determination of the degree does of course require a judicial determination based on
competent evidence, material and relevant to the question of degree. People v. Bellon, 180
Cal. 706, 182 P. 420. But no other issue is left to try and the state is not required to present
proof of the corpus delicti. Ramos v. State, 58 Nev. 446, 83 P.2d 147.
Because of the prejudicial error aforesaid the judgment is reversed and the sentence
vacated. The cause is remanded for a new hearing in accordance with the provisions of
subsection 3 of NRS 200.030.
It is further ordered that the Honorable Grant Bowen, Judge of the Second Judicial
District, and the Honorable Merwyn H. Brown, Judge of the Sixth Judicial District, be and
they are hereby appointed, along with the Honorable John Mowbray, successor of the
Honorable Ryland G. Taylor, deceased, who was the District Judge before whom appellant's
plea of guilty was made, to determine the degree of the crime and give sentence accordingly.
____________
76 Nev. 164, 164 (1960) Ray v. Hawkins
IDA ANGELOT RAY, CARL REED and RALPH STEINER, as Trustees of the Last Will
and Testament of Carl Ray, Deceased, Appellants, v. L. O. HAWKINS and HOWARD W.
CANNON, Respondents.
No. 4244
April 11, 1960 350 P.2d 998
Appeal from the Eighth Judicial District Court, Clark County; John F. Sexton, Judge,
Department No. 1.
Action to partition real estate. The trial court ordered sale of real estate and distribution of
proceeds and defendants appealed. The Supreme Court, McNamee, C. J., held that
notwithstanding fact that instrument stated that grantees therein were to be trustees under
provision of certain dated trust agreement, in absence of any description of the contracting
parties reference to independent agreement must be disregarded because of lack of
definiteness and uncertainty, but whether grantees were to be considered as owners of fee or
trustees of an express trust was immaterial to their right to sue for partition.
Affirmed with directions.
Harry E. Claiborne, of Las Vegas, for Appellants.
Ralston O. Hawkins, of Las Vegas, for Respondents.
1. Trusts.
Where instrument conveying land disclosed intention of grantor to create an express trust even though
neither cestui que trust nor purpose to which corpus of trust could be applied was designated with any
degree of certainty, reference in instrument to trust agreement dated on a specified date but without any
description of contracting parties must be disregarded because of lack of definiteness and uncertainty.
NRS 111.010.
2. Partition; Trusts.
Whether grantees in conveyance by which grantor expressed intention to create an express trust were to
be regarded as owners of fee or as trustees of an express trust was immaterial to issue of grantee's right to
sue for partition of real estate, and in either case they could sue in their own names without designating or
joining with them parties for whose benefit action might be brought. NRCP 17(a).
76 Nev. 164, 165 (1960) Ray v. Hawkins
3. Partition.
In action to partition real estate brought by parties claiming a one-third interest therein where it appeared
that paramount reason of defendants for contesting partition was fact that rights of interested parties to
proceeds from partition sale had not been finally adjudicated, because of protracted litigation it was for the
best interests of all concerned that real estate be sold and proceeds held for distribution to parties
determined to be entitled thereto upon termination of companion litigation.
OPINION
This is an action commenced by respondents to partition certain real estate in Las Vegas,
Nevada, known as the Professional Building. The trial court ordered a sale of said property
and distribution of the proceeds therefrom. Appeal is from such judgment.
During the process of administration of the estate of Carl Ray, deceased, a one-third
interest in said property was deeded to one Barringer through whose title respondents base
their claim of interest in this property. Upon final distribution of said estate, the remaining
two-thirds interest in said property was conveyed to the appellants as testamentary trustees in
accordance with the terms of decedent's will. The complaint alleges that respondents hold
their said interest and are in possession of said property as tenants in common with
appellants.
As giving them the right to maintain this partition action, the respondents offered in
evidence a document entitled Trust Deed which purports to be a conveyance of Barringer's
one-third interest in said property to respondents. The document was received in evidence
over the objection of appellants, and such ruling of the trial court is the chief assignment of
error on this appeal.
The document describes Barringer as grantor and Hawkins and Cannon as grantees, and
recites that in consideration of $1.00 and other good and valuable consideration, Barringer
does hereby convey and warrant unto L. O. Hawkins and Howard W.
76 Nev. 164, 166 (1960) Ray v. Hawkins
unto L. O. Hawkins and Howard W. Cannon, * * * as Trustees, under provision of Trust
Agreement dated the second day of March 1953, the said one-third interest to have and to
hold said premises with appurtenances upon the Trust and for the uses and purposes herein
and in said Trust Agreement set forth.
The only objection by appellants to said document was made at the time it was identified
by Barringer, the grantor named therein, during his direct examination by respondents. The
basis of the objection was that it appears to be an incomplete document inasmuch as the trust
deed makes reference to an agreement and embraces an agreement of which is not attached
thereto or apart of it * * *.
Later during said direct examination, Barringer was asked: Mr. Barringer, other than the
deed that has been introduced into evidence as Plaintiff's Exhibit C, the document entitled
Trust Deed to the plaintiffs L. O. Hawkins and Howard W. Cannon, have you executed any
other deed to any other person for the interest that you have in this property? To which he
answered: I have not.
Appellants did not cross-examine Barringer and at no time made any demand for the
agreement referred to in said Exhibit C.
The instrument (Exhibit C) constitutes a conveyance of land as defined by NRS 111.010.
1

[Headnote 1]
It is apparent from the language employed therein that it was the intention of the grantor to
create an express trust, even though neither a cestui que trust nor the purpose to which the
corpus of the trust could be applied is designated with any degree of certainty. True it is that
the instrument states that the grantees were to be trustees under provision of Trust
Agreement dated the second day of March 1953, but without any description of the
contracting parties, the reference to an independent agreement must be disregarded
because of its lack of definiteness and its uncertainty.
____________________

1
Conveyance' shall be construed to embrace every instrument in writing, except a last will and testament,
whatever may be its form, and by whatever name it may be known in law, by which any estate or interest in lands
is created, aliened, assigned or surrendered.
76 Nev. 164, 167 (1960) Ray v. Hawkins
to an independent agreement must be disregarded because of its lack of definiteness and its
uncertainty.
In the case of Sansom v. Ayer, 144 Ky. 555, 139 S.W. 778, the court said: The weight of
authority seems to be that where an instrument vests title in one as trustee, without disclosing
on the face of the instrument the nature of the trust or the name of the cestui que trust, then
the word trustee' is merely descriptive and the ownership vests in the individual in fee; or, to
differently express our meaning, when the instrument creating the trust fails to disclose the
beneficiary of the trust, the trustee named takes in fee, and may convey the title without the
joinder of the cestui que trust.
[Headnote 2]
Whether respondents are to be considered as owners of the fee or as trustees of an express
trust within the meaning of NRCP 17(a) is immaterial to the issue of respondents' right to sue
for partition. In either case they may sue in their own names without designating or joining
with them the party, if someone other than the respondents, for whose benefit the action is
brought. Sansom v. Ayer, supra; Castleman v. Redford, 61 Nev. 259, 124 P.2d 293.
Appellants insist however that if said Exhibit C was in fact a deed of trust in the nature of
a mortgage given merely as security for a debt, then the respondents' powers thereunder
would be limited to a sale on default or a reconveyance upon satisfaction of the debt; that for
this reason, the reception in evidence of Exhibit C without its companion document referred
to therein as the Trust Agreement dated March 2, 1953 was prejudicial. We deem it
unnecessary to decide this point in view of appellants' second defense in their answer and our
conclusion herein.
[Headnote 3]
It appears from appellants' said second defense that their paramount reason for contesting
partition is the fact that the rights of the parties interested in any proceeds from a partition
sale have not been finally adjudicated. In the case of Gunderson v. Barringer, 76 Nev.
76 Nev. 164, 168 (1960) Ray v. Hawkins
133, 350 P.2d 397, we ordered the trial court to permit an amendment of the pleadings therein
so that the rights of the parties interested in the estate of Carl Ray, deceased, and in the land
sought to be partitioned herein could be ascertained and finally determined.
Because of the protracted litigation in connection with this estate (see Gunderson v.
Barringer, supra), it is obviously for the best interests of all concerned that the said
Professional Building be sold and the proceeds therefrom held for distribution to the parties
entitled thereto.
The judgment is affirmed insofar as it provides for a sale of the property described therein,
provides for the payment of costs of the plaintiffs below, and provides for the payment to
lienholders of the amount of their claims including costs and interest on the obligations as
found due.
After making the payments aforesaid and in addition thereto the payment of costs in
connection with the sale, the balance remaining from the proceeds of such sale shall be
retained by the trial court until the final judgment in the case of Gunderson v. Barringer,
supra, and then distributed in accordance with the adjudication therein contained.
No costs are allowed.
____________
76 Nev. 169, 169 (1960) McKenna v. Ingersoll
MARIE E. McKENNA, Appellant, v.
BARBARA INGERSOLL, Respondent.
No. 4246
April 12, 1960 350 P.2d 725
Action for injuries allegedly sustained by plaintiff when her automobile was struck from
rear by one operated by defendant. The lower court rendered judgment for defendant, and
plaintiff appealed. The Supreme Court, Pike, J., held that there was a substantial conflict of
evidence as to whether accident had been cause of plaintiff's neck condition or aggravation of
any preexisting neck condition.
Judgment affirmed.
George E. Franklin, Jr., of Las Vegas, for Appellant.
Morse, Graves & Compton, of Las Vegas, for Respondent.
1. Automobiles.
In action for injuries allegedly sustained by plaintiff when her automobile was struck from rear by one
operated by defendant, evidence sustained plaintiff's contention that her conduct had not contributed to
collision and that any negligence involved was attributable entirely to defendant.
operated by defendant, it would have to be assumed, on appeal from judgment for defendant, that jury had
considered all of medical evidence along with evidence relating to force of impact, in concluding that
collision did not aggravate preexisting condition of plaintiff's cervical spine, and that jury had understood
instructions and had correctly applied them to evidence.
3. Damages.
operated by defendant, evidence would support finding that accident had not been cause of plaintiff's neck
condition or of aggravation of any preexisting neck condition.
Where there was material conflict of evidence on determinative issues which jury was required to decide,
judgment rendered on jury verdict would not be disturbed on appeal.
OPINION
This appeal is from a judgment based upon a jury verdict denying damages to plaintiff in a
personal injury case, and the order denying motion for new trial. Appellant claimed damages
for personal injuries assertedly sustained by her as a result of respondent's negligence in
driving another car into the rear of the car operated by appellant.
The accident occurred at a street intersection in Las Vegas, Nevada about four o'clock in
the afternoon of November 18, 1957. The traffic control lights at the intersection of
Charleston Boulevard and Main Street were then being manually operated by a Las Vegas
police officer. Respondent was driving her car in an easterly direction in the middle traffic
lane on Charleston Boulevard immediately behind the car driven by appellant. The car just in
front of appellant's car, in the same line of traffic, was stopped at the intersection by the
traffic light and appellant and respondent also stopped their cars without incident. However,
when the traffic signal changed so as to permit the line of cars to proceed through the
intersection, respondent drove the front end of her car against the rear end of appellant's car.
This, according to appellant's testimony, caused the front end of appellant's car to strike the
rear end of the car immediately ahead of it. Appellant's two small children were seated with
her in the front seat of her car.
Appellant claimed injuries to her cervical spine of the type referred to as a whiplash of the
neck, caused by the rear end collision. She testified she had never had any trouble with her
neck prior to the accident. On the same day, following the accident, X-ray pictures of her
spine were taken, followed by treatments including traction and the wearing of a series of
collars to support her neck.
Early in May 1958 a myelogram was taken which disclosed an obstruction of the spinal
canal and thereafter surgery was performed on appellant's neck in order to relieve pressure on
a nerve root. The neurological surgeon who performed the operation attributed such pressure
on the nerve to a herniated disc between the vertebrae in appellant's cervical spine.
Appellant asserts as error, (1), insufficiency of the evidence to justify the verdict and that
the verdict was against law; and, (2), manifest disregard by the jury of certain instructions. In
support of such first assignment of error appellant argues that, as the uncontradicted evidence
is that the rear end collision was caused solely by respondent's negligence, as a matter of law,
respondent was liable for any injury to appellant resulting therefrom, and also that the
undisputed evidence shows that appellant sustained certain injuries as a result of the collision.
[Headnote 1]
The record sustains appellant's contention that her conduct had not contributed to the
collision and that any negligence involved in such rear end collision was attributable entirely
to respondent.
The police officer, who was controlling traffic by use of the traffic lights, testified that he
observed the cars driven by the respective parties to this appeal as they approached the
intersection heading east and that it was respondent's car which made the contact with the
rear of appellant's car. Mrs. Ingersoll, respondent, testified with reference to the
circumstances under which her car struck the car driven by Mrs. McKenna, appellant, and we
find no evidence in the record inconsistent with her statements. On this point her testimony
reads, I pulled up behind Mrs. McKenna I'd say three or four feet and I stopped because the
light was on red; the light changed and I started the car and evidently I started before she did
because I bumped her. I don't know, possibly I might have shifted into high, but I bumped
her, nevertheless. Respondent continued with her testimony to the effect that respondent's
car had picked up no momentum at all" in traveling the three or four feet separating her
car from appellant's just prior to the impact.
all in traveling the three or four feet separating her car from appellant's just prior to the
impact. Respondent also stated that her car * * * must have been going 4 or 5 miles per
hour, just like when you start up, * * * at the time of the bump. Appellant contended that an
impact of some considerable force occurred.
On this appeal, after stressing the manner in which the collision between the cars occurred,
appellant proceeds to a detailed statement concerning the injuries, refers to the condition of
appellant's cervical spine subsequent to the collision, and the medical and surgical care
accorded her in an effort to bring her relief from such objectionable neck conditions. Much of
this evidence is uncontradicted, as contended by appellant.
In support of appellant's second assignment of error on this appeal, appellant states
manifest disregard by the jury of certain instructions, placing liability upon respondent should
the jury find that respondent's negligence caused an aggravation of a preexisting disability
suffered by the appellant. As the disabilities asserted by appellant were those already referred
to, pertaining to the cervical spine, these instructions had the effect of advising the jury that,
in order for the appellant to recover, she need not necessarily establish that respondent's
negligence caused the injury to appellant's neck, but that it would suffice for her to show that
respondent's negligence had aggravated a cervical spine disability existing prior to the
collision.
Both of these assignments of error must be reviewed in the light of respondent's defense.
That defense, while admitting the collision took place, as stated, contended that the impact
between the cars was so minor in force and degree as to have caused no whiplash injury to
appellant's neck, and no aggravation of a preexisting neck condition. In support of this
defense, as to the degree of the impact, the record shows that the jury had before it, besides
the testimony of respondent, certain other evidence which it was entitled to consider and
weigh. Officer Al Hartley, who observed the occurrence from his traffic control location,
referred to the collision between the cars as * * * just a tap from the striking vehicle", and
stated that even a minor damage report on the accident was unwarranted.
vehicle, and stated that even a minor damage report on the accident was unwarranted. He
corroborated respondent's testimony that, immediately upon her car being struck from the
rear, both vehicles having stopped, appellant jumped out of her car and carried on a
discussion with respondent in loud tones. He also testified that he failed to observe any
injuries sustained by appellant or either of her two children, although appellant had contended
that both of the children had been thrown forward from their seats and had received minor
injuries to their faces. Such throwing forward of the two children, as well as appellant,
considering that appellant's car had been struck from the rear, would be understandable upon
accepting appellant's testimony that her car was forced into the car immediately ahead of it
with enough momentum to bring this about.
The traffic officer testified that he did not observe appellant being thrown forward against
the steering wheel as she testified. Appellant testified that the person driving the car just
ahead of her, into which her car was forced, got out before resuming progress through the
intersection, but the traffic officer and respondent both testified that such third car drove on
immediately and that the driver did not get out. Respondent testified that her first concern,
when approached by appellant, was to inquire if anyone had been injured in appellant's car,
and she did so, to which inquiry appellant replied that no one had been injured. At appellant's
insistence, respondent accompanied her to an automobile agency to see about any repairs
required to be made to appellant's car by reason of the collision, and after such examination
the agency found the repairs to be minor in nature. The jury had photographs of the cars
available for their consideration, as well as repair estimates and bills. Appellant sought no
damages for repairs to her car.
[Headnotes 2-4]
George L. Abrums, M.D., in testifying, referred to the report which he had made on the
X-rays taken of appellant's cervical spine on the evening of the day upon which the collision
occurred. His testimony referred to a narrowing space between the 5th and 6th, and also
between the 6th and 7th cervical vertebrae of the neck and to characteristics of the bone
on the back of the vertebrae which showed that the condition had existed for nine months
or a year prior to the date of the X-rays, and stated that there had been chronic pain on
the posterior longitudinal ligaments.
between the 6th and 7th cervical vertebrae of the neck and to characteristics of the bone on
the back of the vertebrae which showed that the condition had existed for nine months or a
year prior to the date of the X-rays, and stated that there had been chronic pain on the
posterior longitudinal ligaments. He testified that the heavy bone growth sclerosis of a
particular margin showed that the narrowing had been there and that the bone edges, instead
of being properly separated, had been rubbing together with friction and strain for about the
time indicated. The doctor testified that there was no doubt in his mind that the neck
condition existed prior to the accident. Also, when asked to refer to the hospital records and
determine whether or not subsequently a laminectomy had been performed, he testified that,
from what the X-rays upon which he had reported had disclosed, he would not have been
surprised if there had been such an operation performed and it has been overdue. The
doctor who subsequently performed the laminectomy on appellant's neck also stated that he
had observed on such X-rays a narrowing between the fifth and sixth vertebrae; that the
myelogram subsequently taken showed an obstruction at the sixth cervical vertebrae level in
the spinal canal and that, in the operation, the bony covering of the spinal canal, which was
removed, involved this vertebra and the vertebrae on each side of it. While the same
neurological surgeon who operated testified that the compression of the surgical root was
caused by an intravertebral disc being out of place, forming the obstruction in the spinal
canal, the jury was entitled to consider his testimony along with the other medical testimony
and evidence in the case for the purpose of determining whether appellant's neck condition
existed prior to the accident or was caused by the accident. Similarly, the jury must be viewed
as having considered all of such medical testimony and evidence along with the evidence
relating to the force of the impact, in concluding whether or not the collision had aggravated
any already existing condition in appellant's cervical spine, in the event it found the neck
condition to have been a preexisting one. Likewise, we must assume that the jury
understood the instructions and correctly applied them to the evidence.
assume that the jury understood the instructions and correctly applied them to the evidence.
Nunneley v. Edgar Hotel, 36 Cal.2d 493, 225 P.2d 497, 502. Here, in view of the evidence
referred to, and in the absence of any sufficient showing to the contrary, we must assume that
the jury followed the instructions relating to any aggravation caused by the collision to a
preexisting condition of appellant's neck. Ames v. Western Pacific, 48 Nev. 78, 88, 227 P.
1009, 1012. We find appellant's contention of manifest disregard by the jury of such
instructions unsupported by the record.
Although the evidence is uncontroverted that the collision was caused by respondent's
negligence, and there is no substantial conflict concerning appellant's neck condition
following the accident, there was a substantial conflict of evidence as to whether or not the
accident was the cause of appellant's neck condition or of the aggravation of any preexisting
neck condition.
The evidence as hereinabove reviewed sufficiently points out the material conflict of
evidence on such determinative issues which the jury was required to decide. Accordingly,
the verdict of the jury will not be disturbed upon appeal. Tonopah Lumber Co. v. Riley, 30
Nev. 312, 95 P. 1001. There is substantial evidence supporting the jury verdict in favor of
respondent, and the judgment based upon it must stand. Cram v. Durston, 68 Nev. 503, 505,
237 P.2d 209, 210. Judgment and order denying appellant's motion for new trial are affirmed,
with costs to respondent.
____________
76 Nev. 176, 176 (1960) State Ex Rel. Dep't of Highways v. Olsen
THE STATE OF NEVADA on Relation of its Department of Highways, Appellant, v. RUTH
GARFINKLE OLSEN and WILLIAM HADLEY, Respondents.
No. 4172
April 18, 1960 351 P.2d 186
Appeal from judgment of Second Judicial District Court, Washoe County; A. J. Maestretti,
Proceeding involving assessment of damages in favor of property owner and leasehold
owner resulting from taking of parcel of land. The trial court rendered judgments and State on
relation of Department of Highways appealed. The Supreme Court, Badt, J., held that where
there was nothing in complaint or in either of maps attached thereto to indicate that an access
road would be constructed, testimony as to benefit to be derived from construction of such
road was inadmissible as too remote, but that lessee was not entitled to recover cost of wiring,
which he had installed but which he had no right to remove under the lease, and lessee was
not entitled to allowance for full cost of gas pump and tanks, which he had right to remove,
but was entitled only to depreciated value thereof.
Judgment in favor of respondent Olsen affirmed. Judgment in favor of respondent
Hadley modify.
Attorneys General, for Appellant.
Ernest S. Brown, of Reno, for Respondent Ruth Garfinkle Olsen.
William L. Hammersmith, of Reno, for Respondent William Hadley.
1. Evidence.
Where owner had held land to be taken for ten years, had owned other business properties in city, had
leased the same, had been aware of values of her own and surrounding properties and
had compared recent sales of nearby lands, owner was a competent witness to testify
as to value of property taken.
had been aware of values of her own and surrounding properties and had compared recent sales of nearby
lands, owner was a competent witness to testify as to value of property taken. NRS 37.110.
2. Eminent Domain.
In proceeding involving assessment of damages resulting from taking wherein condemnor contended
that total value of property taken was $31,000 and condemnees contended that value of such property was
$72,000, evidence sustained finding that value of property taken was in excess of $43,000. NRS 37.110.
3. Eminent Domain.
Trial court's failure or refusal to make findings of benefits to owner of property taken was equivalent to
finding that there were no benefits to property owner resulting to remaining property after taking of portion
thereof. NRS 37.110.
4. Eminent Domain.
Trial court's failure or refusal to find benefits inuring to remaining property after taking of portion
thereof, followed by conclusions and judgment in which no benefits were allowed, implied a finding that
there were no benefits. NRS 37.110.
5. Eminent Domain; Evidence.
In proceeding involving assessment of damages resulting from taking of land, owner's testimony that
rental value of remaining land would be reduced, that property remaining had been zoned for business
commercial, that she did not know what it could be zoned for after construction of proposed highway and
that severance damage was result of loss of value of remainder of property, was competent, relevant, and
material. NRS 37.110.
6. Eminent Domain.
Award of $5,000 severance damages to owner of property, upon which there was lease, for loss of
rental on basis that tenants would not care to remain after new road was put in and that owner had not
leased type of land remaining after condemnation was not excessive. NRS 37.110.
7. Eminent Domain.
In proceeding involving assessment of damages resulting from taking of land, wherein there was
nothing in complaint or maps attached thereto showing a proposed construction of access road in front of
property part of which was taken, testimony as to benefits which would accrue to portion of property not
sought to be condemned by construction of such access road was inadmissible as too remote. NRS
37.110, subd. 4.
8. Eminent Domain.
Where, under terms of lease, wiring installed by lessee to meet standards of city code inured to benefit
of lessor, and lessee had no right to remove the wiring, lessee was not entitled to recover cost of installation
of wiring when leasehold was condemned. NRS 37.110.
9. Eminent Domain.
Where lessee under lease had right to remove gas pump and tanks as business fixtures, lessee
was entitled to compensation when land was condemned but lessee was not entitled
to their full cost, but only their depreciated value.
and tanks as business fixtures, lessee was entitled to compensation when land was condemned but lessee
was not entitled to their full cost, but only their depreciated value. NRS 37.110.
10. Eminent Domain.
Lessee, whose leasehold was condemned was entitled to difference between his monthly rental reserved
in lease and the monthly present value of lease. NRS 37.110.
OPINION
This is an appeal from the judgment of the trial court assessing damages in favor of
respondent Olsen resulting from the taking of a parcel of land owned by her, and in favor of
respondent Hadley for the taking of an easement owned by him over a portion of the parcel
taken from Mrs. Olsen. The easement referred to was used for access to a larger parcel which
Hadley leased from Olsen. Thus the question of the value of the taken access became the
question or issue of the reduction of the value of the Hadley lease.
1
Condemnation was
sought of a parcel of land fronting on the south 128.35 feet on the north line of East Second
Street some 300 feet west of Kietzke Lane,
2
and with a depth (subject to some variation) of
150 feet. The parcel thus sought to be condemned comprised .452 of an acre, and is a portion
of a larger parcel owned by Olsen, adjacent to it on the north. Condemnation was sought, in
addition to the .452 of an acre owned by Olsen, of the Hadley easement above referred to.
Such easement is over a parcel of land 15 feet wide, traversing part of the Olsen property
from the northerly line of East Second Street, in a northerly direction, to the larger parcel
leased by Olsen to Hadley, and furnishing access to such leased parcel. Such easement was
granted to Hadley in connection with and by reason of the Olsen-Hadley lease. Such Hadley
lease was for a 10-year period at a monthly rental of $125.
____________________

1
For related cases see State v. Olsen, 75 Nev. 75, 334 P.2d 847; and State v. Second Judicial District Court,
75 Nev. 200, 337 P.2d 274.

2
Original defendants included Leslie C. Stencil, lessee of Ace Metal Fabricators, situate on the property,
and Pete Martin, and Frank Capriotti. They are not involved in any of the issues herein considered and are not
parties to this appeal.
for a 10-year period at a monthly rental of $125. At the time of the taking of possession by
appellant under an order of immediate occupancy in this proceeding, the unexpired term of
said lease was four years, four and one-half months. The leased property included a large
building, to which was attached a smaller frame building. The intended use of the leased
property was the storage and sale of gasoline and oil, and more particularly as a truck service
station.
The trial court found: That the evidence presented at the trial sustains the market value of
the property of Ruth Garfinkle Olsen taken is the sum of $43,384.50. That by reason of the
taking of the front portion of all of the property owned by Ruth Garfinkle Olsen the court
finds that the evidence sustains severance damage to the remaining parcel in the sum of
$5,000. The court further found that Hadley was the owner of a subsisting lease with a
remaining term of four years, four and one-half months; that he had leased the premises for
the specific purpose of using the same for a truck service station; that the easement granted to
him for access had been totally destroyed by the condemnation proceedings, and that the
original purpose of his lease of the premises had likewise been destroyed; that the market
value of his lease for the remaining term was $14,400; that he had installed wiring for the
purpose of his lease in the sum of $300, and a gas pump and tanks of the value of $1,200; that
his leasehold had been entirely destroyed for the purpose for which it was originally intended.
The judgment awarded him damages in the sum of $15,900 in accordance with the foregoing
figures.
Appellant states: The only issue pertinent to this appeal presented at the trial was the
question of damages to the respondents resulting from the taking of the parcel owned by Mrs.
Olsen and the easement appurtenant to the Hadley leasehold. Respondents pinpoint the issue
a little more finely as follows: This being true, then the question of this appeal might be
stated, was there substantial evidence in the record to support the judgment and damages, and
was the judgment right in law? The following table {round figures being used) will show
the difference in the values placed on the respective parcels by the parties to this appeal,
and by the court.
The following table (round figures being used) will show the difference in the values
placed on the respective parcels by the parties to this appeal, and by the court.
Per Per Per
Aplt. Respts. Court
Value of entire Olsen property including that
taken by state and that leased to Hadley,
2 1/3 A........................................... $89,000
$93,000
Value of front footage taken......................154
250$250
Total value of the property taken including
improvements.................................. 31,000
72,000.............................................. 43,400
Severance damage........................................ nil
10,000...................................................... 5,000
Benefit to larger parcel not taken....More than
sufficient
to offset
damage
nil nil
Damage to Hadley's leasehold interest,
including improvements and market
value of easement taken.................... 9,100
15,900.............................................. 15,900
As to the front footage valuation, Mrs. Olsen testified to a recent sale of adjoining property
for $70,000. Mr. Chambers, the state's expert witness, confirmed and identified this sale as
sale of a parcel immediately to the east of Mrs. Olsen's parcel, at approximately $280 a front
foot, but which had a depth of over 500 feet, as against a depth varying from 150 feet to 180
feet on Mrs. Olsen's property.
[Headnote 1]
The only witnesses testifying as to values of the property taken were Mrs. Olsen on her
own behalf and Mr. Lawrence G. Chambers, chief appraiser for the state highway department,
on behalf of appellant. Mrs. Olsen had owned this property for ten years, owned other
business properties in Reno and leased the same, was aware of market values of her own
and surrounding properties and had compared recent sales of nearby lands. Mr. Chambers
was a civil engineer and had made numerous investigations of values for the state
highway department.
aware of market values of her own and surrounding properties and had compared recent sales
of nearby lands. Mr. Chambers was a civil engineer and had made numerous investigations of
values for the state highway department. Both were competent witnesses. At the trial the
plaintiff questioned Mrs. Olsen's competency to testify, but she was undoubtedly a competent
witness. Vol. III Wigmore on Evidence, 3rd Ed., 714; Spring Valley Waterworks v.
Drinkhouse, 92 Cal. 528, 28 P. 681.
[Headnote 2]
Prior to the making of the formal findings, the court filed a written opinion in which it
considered the testimony of both Mrs. Olsen, on the one hand, and Mr. Chambers on the
other, the qualifications of both witnesses, and the testimony given by them, respectively,
with regard to the several items of value. It would appear then that, as might well have been
expected, the evidence was in conflict and that the court had given this conflict its careful
consideration, had weighed the testimony and had rejected in part both the higher figures to
which Mrs. Olsen had testified and the lower figures to which Mr. Chambers had testified. It
cannot be said that there is not substantial evidence to support these findings of value, and in
the absence of reversible error on the part of the court, we shall not disturb the findings.
NRS 37.110 requires the court to ascertain and assess (1) the value of the property sought
to be condemned and the improvements; (2) if the property sought to be condemned
constitutes only a part of a large[r] parcel, the damages which will accrue to the portion not
sought to be condemned, by reason of the severance, and the construction of the improvement
in the manner proposed by the plaintiff; and (3) separately, how much the portion not sought
to be condemned, and each estate or interest therein, will be benefited, if at all, by the
construction of the improvement proposed by the plaintiff; and if the benefit shall be equal
to the damages assessed, * * * the owner of the parcel shall be allowed no compensation
except the value of the portion taken; but if the benefit shall be less than the damages so
assessed, the former shall be deducted from the latter, and the remainder shall be the only
damages allowed in addition to the value of the portion taken."
the former shall be deducted from the latter, and the remainder shall be the only damages
allowed in addition to the value of the portion taken.
(1) Appellant's first assignment of error is that the court's award was made without regard
for the construction of the improvement in the manner proposed by the state and without
separately ascertaining and assessing the benefits to the remaining property resulting from the
improvements proposed; and that this was a direct violation of the statutory provision quoted
above.
[Headnotes 3, 4]
As to the court's failure to make findings relative to the benefits inuring to the remaining
property, it is our construction of the findings that the court's failure or refusal to make a
finding of benefits was equivalent to a finding that there were no benefits, Peterson v.
Wiesner, 62 Nev. 184, 193, 146 P.2d 789. In any event, the court's failure or refusal to find
benefits, followed by the conclusions and judgment in which no benefits were allowed,
clearly implies a finding that there were no benefits. Dillon v. Dillon, 68 Nev. 151, 227 P.2d
783.
(2) Nor do we find support for the contention that the award of severance damages finds
no support in the evidence. It will be noted from the table that Mrs. Olsen claimed a
severance damage of $10,000 and that the court allowed on this item the sum of $5,000. It
will be recalled that the taking of the unleased property included the taking of the easement
running from East Second Street northerly across the unleased property for access to the
leased parcel. It was on the basis of the taking of this easement that Mrs. Olsen testified to the
severance damage of $10,000. (The question of the impact and effect upon this situation of
the proposed future frontage road abutting the east boundary of the leased parcel and the
access road from Second Street to the leased parcel is treated below.) She said: It would be
$10,000 at least, because between the Capriotti, Martin and Hadley lease, I lose $10,000 in
the remainder of their leases, and they have informed me that it will hurt their business to a
great extent and they don't care to remain. * * *
The monthly rental revenue that I obtain from all of my property is $410 a month. * * * This
property is zoned for business, commercial, and it can be used for industrial or anything, and
when the frontage will be taken off, I don't know what it will be zoned for. It will be on a
back street. I don't know what the back streets are zoned for. And when I had given these
people leases, they were for facing Second Street, and all business was done from Second
Street. That changes their leases in this. And furthermore, I don't know what I could rent them
for. When pressed on cross-examination to define severance damage, she answered: By
hurting the remainder of the property, and the rest of the property will lose its value, the value
it has now, and the main thing is losing my income. And it was bought as one plot of land.
And the access in the rear of the land, you'd almost have to have a helicopter to get in and out
of it to do business. And I did not lease those people that type of land as it will remain in their
leases, it was written different. It will be guesswork what the value of the remaining land will
be. Nobody will know until the actual thing takes place, probably. Streets aren't developed
overnight. And on the rear of the land is a water pipeline that incloses me, and it's impossible
to get to the back of the land through the rear, and I don't know what the two acres could be
used for. I can't predict the future. I don't know what the land could be used for or the
buildings.
[Headnotes 5, 6]
The upshot of the matter is that the leased property, heretofore served by access over the
easement from the main used thoroughfare of East Second Street, has now become rear
property. Continued access by the proposed access road running north from East Second
Street and also from the proposed frontage road along the easterly line of said property would
cure this difficulty if such access road and such frontage road were a part of the construction
of the improvement proposed by the plaintiff if thus expressed in the complaint or in the
maps attached to the complaint, or even, failing this, in the stipulation of counsel that such
access was a part of "the construction of the improvement proposed by the plaintiff,"
provided such stipulation and such provision were carried forward into the judgment.
stipulation of counsel that such access was a part of the construction of the improvement
proposed by the plaintiff, provided such stipulation and such provision were carried forward
into the judgment. This however is not the case.
3
The taking of the unleased property,
carrying with it the 15-foot easement to the leased property entailed at the best a difficult
problem with reference to damages resulting to the latter. Mrs. Olsen's testimony as quoted
above was competent, relevant, and material. That damage resulted to the property not taken
by the state was found by the court. We cannot say that there was no basis for its finding that
this damage amounted to $5,000. It was not only apprised of the situation from the testimony
of the witnesses, the maps and the leases in evidence, but, accompanied by counsel, viewed
the premises. This court cannot substitute its judgment for that of the trial court as to the
amount of the damage.
(3) This brings us to the contention then that the state's proposed construction includes a
proposed future frontage road, along the easterly boundary of the leased parcel, which will
provide access thereto along such entire easterly frontage for a distance of some 325 feet, and
also by way of a 40-foot bladed roadway northerly from Second Street, thence at right angles
easterly to join the proposed frontage road.
[Headnote 7]
The condemnation complaint recites that a map showing by description the particular
construction project involved is hereto attached marked Exhibit A and is hereby expressly
referred to and made a part hereof; that a map marked Exhibit B is hereto attached and is
hereby expressly referred to and made a part hereof showing in detail the project particularly
described herein as the same is involved in this action. It further alleges that the project
particularly described is definitely located by the department of highways over, across, and
through the described property.
____________________

2
Even so, respondent Hadley testified that the proposed access road from East Second Street would be
entirely unacceptable, as trucks and trailers would have to make three turns along such proposed access road
(available to the general public) to arrive at the property, as contrasted with the single turn into his former
individually owned easement.
across, and through the described property. Nothing in the complaint and no indication in
either of the maps attached to and made a part of the complaint shows a proposed
construction of the proposed future frontage road, or the proposed access road. It was
only during the course of the trial that the state's expert witness produced a transparent
tracing, referred to as an overlay, which was superimposed upon the state's exhibit picturing
the property. The legal effect of this is disposed of infra.
When appellant sought to examine its expert witness as to the benefits that would accrue
to the portion of the property not sought to be condemned by the construction of the
improvement proposed by the plaintiff, the court sustained respondent's objection that the
statutory justification for considering such benefits meant improvements that are to be
constructed under the project for which the land is taken, and not something that may occur in
the future. The court held the testimony inadmissible as being too remote. As noted, neither
the frontage road nor the access road were a part of the construction of the improvement
proposed by the plaintiff (NRS 37.110 sub. 4) either as described in the complaint or
delineated on either of the maps attached to and made a part of the complaint. Appellant
however relies on People v. Schultz, 123 Cal.App.2d 925, 268 P.2d 117, as approving the
state's stipulation and offer by its counsel in open court that access to the property will always
be provided in connection with the proposed construction and that the judgment might
include such order. We need not discuss People v. Schultz at any greater length than to note
that the judgment in that case actually contained a provision protecting the owner's right of
access. No such provision is contained in the present judgment and respondent is not afforded
the type of protection given by the judgment in the Schultz case. The judgment involved in
this appeal was entered November 5, 1958, a year and five months ago, and any attempt to
modify the same at this late date would encounter serious obstacles. The opinion in the
Schultz case dealt at length with the question whether the protective provision in the Schultz
judgment was within the power of the court and whether the original resolutions of the
highway board authorized and justified counsel's stipulation that such provision might be
included.
the protective provision in the Schultz judgment was within the power of the court and
whether the original resolutions of the highway board authorized and justified counsel's
stipulation that such provision might be included. These matters are beyond our consideration
here, because the protective provision was not included in the court's judgment.
4
Appellant
asserts that the effect of such omission may nonetheless be cured by an inverse condemnation
proceeding against the state. This however might be an expensive, uncertain, and hazardous
substitute for constitutional and statutory rights vested in all persons whose property is taken
by right of eminent domain.
[Headnote 8]
(4) Appellant attacks the award of $15,900 for the Hadley leasehold on the ground that the
court erroneously included $300 to compensate for Hadley's installation of certain wiring and
$1,200 for the installation of a gas pump and tanks, and on the ground that Hadley's
compensation for his leasehold interest was limited to the difference between the fair rental
value for the unexpired term and the rent reserved in the leasea maximum allowance of
$9,100 in place of the $14,400 allowed.
(a) The Olsen-Hadley lease was in evidence. Under its terms the wiring (installed by
Hadley to meet the standards of the city code as required by the lease) inured to the benefit of
the lessor. Hadley had no right to remove the wiring. Under such situation the $300 allowed
for this item was improper. In re Triborough Bridge, City of New York, 293 N.Y.S. 223, 229.
____________________

4
In the state's argument to the trial court it referred to its transparent tracing on the overlay map
superimposed upon the map showing the Olsen land, including the land leased to Hadley. Referring to the map
with the overlay upon it, the state argued: [This] indicates that the condemnation of the property sought by the
state would without construction of the proposed improvements eliminate all access to East Second Street from
the rear portion of the defendant's property. That is the map without the overlay. If we were to take this property
certainly the rest of the property * * * belonging to Mrs. Olsen [presently subject to the lease to her lessees]
would be cut off of access to Second Street, hence confiscated, and the damages would probably equal the total
amountthe total market value of the property.
Bridge, City of New York, 293 N.Y.S. 223, 229. See also Anno. 3 A.L.R.2d 304.
[Headnote 9]
(b) The allowance of the $1,200 for the gas pump and tanks occupies a different status.
Hadley had the right to remove them as business fixtures, and was entitled to compensation.
In re Willcox, 165 App.Div. 197, 151 N.Y.S. 141; In re Triborough Bridge, supra. See
Volume I Orgel, Valuation under Eminent Domain, p. 465, 110. He was however not
entitled to allowance of their full cost, but only their depreciated value. This was not shown.
When asked on cross-examination, How much do you think they are worth? he answered,
Well that's something that would take a little time tonormal depreciation. These
improvements were installed in 1952, and the allowance of the full installation cost without
deducting depreciation was error.
[Headnote 10]
(c) In addition to recovery of the cost of the wiring and the gas pump and tanks, Hadley
testified that his total loss was the difference between his $125 monthly rental reserved in
the lease and the $300 monthly present value. He stated definitely that this was his total loss.
Such indeed is the well-recognized rule. Pierson v. H. R. Leonard Furniture Co., 268 Mich.
507, 256 N.W. 529, 98 A.L.R. 244, Vol. II Nichols on Eminent Domain, 2nd Ed., p. 42,
5.23[3]; Vol. I Orgel, Valuation under Eminent Domain, p. 521, 121; Anno. 3 A.L.R.2d
292. This formula justifies an allowance of $9,100 for this item and no more.
Respondent Hadley justifies the larger sum by asserting that he may be required to pay the
reserved $125 monthly rental to the end of the term. The testimony of his lessor, Mrs. Olsen,
quoted supra, indicates that this is not so. The court's allowance to her of $5,000 severance
damage was based upon that testimony in which she stated that she would lose the rental from
the Hadley and other leases, and that the tenants do not care to remain; that she had given
these lessees leases facing on Second Street; that the condemnation had in this respect
changed their leases; that she had not leased to the lessees the type of land remaining
after the condemnation.
on Second Street; that the condemnation had in this respect changed their leases; that she had
not leased to the lessees the type of land remaining after the condemnation.
Hadley's counsel, in arguing the case to the trial court, argued that, including the claimed
$300 and the claimed $1,200, the total damage which he has suffered would be in the
amount of $10,600. He then argued further that if Hadley should be required to continue his
monthly rental payments of $125 till the end of his term, this would increase his damage to
$15,900.
The judgment in favor of respondent Olsen is affirmed, with her costs in this court.
The judgment in favor of respondent Hadley is modified by deducting therefrom the item
of $300 and by deducting therefrom the further sum of $5,300 (the difference between
$14,400 and $9,100). The case is remanded to the district court for a limited new trial to
determine the depreciated value of the pump and tanks; provided, however, that if the parties
within 15 days from date of receipt of a copy of this opinion, shall file a stipulation herein
stipulating to the depreciated value of the said pump and tanks, then the judgment as to this
item may stand as modified by substituting in place of the $1,200 allowed, the amount of
such stipulated depreciated value.
No costs are allowed on the appeal from the Hadley judgment.
____________
76 Nev. 189, 189 (1960) United Association Journeymen v. Stine
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING
AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL
UNION 525, LAS VEGAS, NEVADA, Appellant, v. WILLIAM K. STINE, Doing Business
as A-1 PLUMBING SUPPLY COMPANY, Respondent.
No. 4241
April 20, 1960 351 P.2d 965
Appeal from judgment in favor of respondent on jury verdict, Eighth Judicial District
Court, Clark County; David Zenoff, Judge, Department No. 1.
Employer's action against union for alleged breach of labor agreement in calling work
stoppage without resorting to provisions of agreement, assertedly thereby destroying
employer's business. The trial court rendered judgment for plaintiff and defendant appealed.
The Supreme Court, Badt, J., held, inter alia, that provision in labor agreement requiring
submission of future controversies to arbitration was enforcible and employer was entitled to
maintain action against union for injuries sustained in consequence of union's violation
thereof in calling strike without first resorting to remedies under arbitration provisions of
agreement, and that evidence sustained damages awarded.
Affirmed.
(Petition for rehearing denied June 15, 1960.)
George Rudiak, of Las Vegas, for Appellant.
Morton Galane, of Las Vegas, and Harold A. Slane, of Los Angeles, for Respondent.
1. Labor Relations.
If action of joint committee provided for in labor agreement for settlement of controversies became
necessary with respect to union's charges against an employer and if such committee had not been
activated, burden was upon union to take some steps to activate it and fact that committee was not
functioning would not entitle union to call strike without first presenting its grievance in accordance with
procedures provided in agreement.
2. Labor Relations.
Both parties to labor agreement could waive arbitration covenants.
3. Labor Relations.
Parties' failure to appoint members to joint committee or arbitration board provided for in labor
agreement would not constitute a waiver of arbitration covenants.
4. Labor Relations.
Labor agreement providing that if there was disagreement with respect to extension of agreement or any
other contingency, dispute would be submitted to arbitration board and providing that decision by majority
of members of board would be accepted as decision by board and binding on parties implied that parties
would refrain from enforcing grievances without first resorting to arbitration and required union to refrain
from striking when it had not pursued such remedies under contract though agreement did not specifically
state that no strike could be called before arbitration procedures had been followed.
5. Labor Relations.
Where union called strike without affording employer opportunity to request arbitration provided for in
labor agreement, union was required to bear sole responsibility for its breach and to assume consequences
thereof and was precluded from successfully contending that employer was, despite union's conduct, bound
to arbitration covenants before seeking damages resulting from strike.
6. Labor Relations.
Where employer's asserted breaches of labor agreement in permitting employee to cut pipe without
journeyman supervision and in employing apprentices in a ratio to journeymen which exceeded the
permitted ratio were required, by labor agreement, to be submitted to grievance and arbitration procedures,
but no such resort was had and employer's other asserted breaches of agreement were trivial, employer's
breaches or asserted breaches of agreement could not preclude it from maintaining action against union for
its breach of agreement in calling work stoppage without resorting to arbitration provisions of agreement.
7. Contracts.
The statute providing that the common law of England, so far as not repugnant to or in conflict with
constitution of United States or constitution or laws of state, shall be rule of decision in all courts of state
did not compel Supreme Court to apply common law holding unenforcible agreements to submit any and
all future disputes to arbitration. NRS 1.030.
8. Labor Relations.
Provision in labor agreement requiring submission of future controversies to arbitration was enforcible
and employer was entitled to maintain action against union for injuries sustained in consequence of union's
violation thereof in calling strike without first resorting to remedies under arbitration provisions of
agreement.
9. Trial.
In employer's action against union for breach of labor agreement in calling work stoppage, assertedly
destroying employer's business, trial court properly allowed in evidence testimony of reports made to
plaintiff by other plumbers and general contractors as to effect of strike on his ability to obtain journeymen
employees and to obtain subcontracts from general contractors when it limited effect of such testimony to
indicating why plaintiff pursued course which he did and stated that testimony could not be received for
truth of what had been told plaintiff.
10. Evidence.
In employer's action against union for breach of labor agreement in calling work stoppage, assertedly
destroying employer's business, plaintiff's testimony that his accountant had stated to him that value of
good will of his business was around a stated figure was not incompetent as hearsay but was admissible in
that opinion was formed and was more or less dependent upon figure arrived at by accountant from
plaintiff's books and records and communicated by accountant to him.
11. Labor Relations.
In employer's action against union for alleged breach of labor agreement assertedly destroying employer's
business, wherein union's counsel, in cross-examining plaintiff secured admission that by agreement
between employer and a key employee, key employee was made beneficiary on plaintiff's life policy, the
proceeds of which were to go to buy business from estate, from which jury might infer that good will was
due to him rather than to plaintiff, as entire contract indicated that he could resign whenever he desired and
made no provision that his estate should in any way profit from such insurance, it was not error for court to
admit in evidence purchase and sale agreement indicating that purchase price would be a stated figure
including the good will and equipment but excluding the land and building.
In employer's action for alleged breach of labor agreement in calling work stoppage without resorting to
arbitration provisions, assertedly destroying employer's business which he subsequently terminated, award
of $50,000 damages, even if almost all of such amount was allocated to loss of good will of business, was
sustained by the evidence.
In action for breach of labor agreement, question of whether plaintiff-employer had taken steps to
mitigate his damages was for jury and beyond scope of appellate review.
In action for breach of labor agreement, questions of whether closing down of plaintiff's business was
direct, natural and foreseeable result of seven-day strike was properly for jury.
In action for breach of labor agreement, question of whether union's discipline of certain of its members
who were in plaintiff's employ had prompted diffidence of other union members to
work for plaintiff was relevant to issue of damages.
in plaintiff's employ had prompted diffidence of other union members to work for plaintiff was relevant to
issue of damages.
16. Trial.
Rejection of special interrogatories was within discretion of the trial court.
OPINION
Respondent Stine was the successful plaintiff below. The appellant union was defendant.
They are referred to as they appeared in the district court or by their respective abbreviated
names. Plaintiff sued for damages for defendant's alleged breach of a labor agreement,
charging that the defendant union called a work stoppage, destroyed plaintiff's business by
depriving him of the assurance that journeymen plumbers would be available to work for
him, that his contract jobs were brought to a halt, and that the strike was in violation of
provisions of the labor agreement setting forth certain grievance and arbitration machinery.
Plaintiff also sought a temporary restraining order and a preliminary and permanent
injunction against the strike. Judgment was entered against defendant upon the jury's verdict
for $50,000 damages, and the court thereafter denied defendant's motion for judgment
notwithstanding the verdict or, in the alternative, for a new trial. Defendant has appealed from
the judgment and from these orders.
Allied or associated matters in connection with this situation have heretofore been before
this court. Stine and his employee, James D. Ringelberg, had appealed from the trial court's
order denying them an injunction pendente lite against the union enjoining the strike. They
sought from this court an injunction pending appeal. This we denied. Ringelberg v. United
Association of Journeymen, 72 Nev. 156, 297 P.2d 1079. Thereafter the union moved this
court for an order assessing damages upon the injunction bond, which Ringelberg and Stine
resisted, contending that the proper course of the union was an independent action upon the
bond. The motion that this court assess damages on the injunction bond was based on
NRCP Rule 65{c) to the general effect that the surety's liability might be enforced on
motion without the necessity of an independent action.
motion that this court assess damages on the injunction bond was based on NRCP Rule 65(c)
to the general effect that the surety's liability might be enforced on motion without the
necessity of an independent action. We concluded however that the rule did not apply to this
court and denied the motion. Ringelberg v. United Association of Journeymen, 73 Nev. 185,
314 P.2d 380. Thereafter counsel for both parties advised the court that the appeal from the
court's order denying injunction was moot, and on August 19, 1957 we dismissed that appeal.
This however left pending in the district court the suit for damages resulting in the judgment
and orders from which the present appeal is taken.
Plaintiff, doing business as A-1 Plumbing Supply Company, had been engaged in that
business for a number of years. Some 60 percent of that business resulted from plumbing
contracts and some 40 percent from the retail sale of prefabricated plumbing fixtures. It
enjoyed a gradual growth to a peak of some $305,000 annual gross sales in 1954, and
resulting in a net profit of $31,500 in 1955, with proportionate returns until the strike of April
13, 1956.
About three weeks before the strike of April 13, 1956, according to Stine's testimony, in
response to a letter from the union, he appeared before its executive board and Frank Long,
its business agent. The witness testified: There was quite a lengthy discussion as to the
tactics or the advertising program that I had put on to operate my business. There was a great
deal of criticism on the part of the executive board. * * * Well, I'd been advised at that time
by the executive board that if my conduct of business was not changed they would close my
shop. This was further explained by Long concerning that meeting: We were disturbed in
the plumbing industry by materials being made and sold to customers. Q. Prefabricated
fixtures? A. Now you are talking. Q. Your executive board was concerned with the fact A-1
Plumbing was selling prefabricated fixtures to retail customers? A. We were concerned to a
certain extent with any hardware store selling prefabricated materials. It was pursuant to that
concern that Stine was requested to appear before the union's executive board.
was requested to appear before the union's executive board.
Mickey Kern, called by the defendant, a member of the plumbers' union and an executive
board member and vice president and later chairman of the board, was present at the meeting
of March 21, 1956, and testified that in the Stine matter: Mr. Stine was advertising plumbing
trees for sale. The members of the board felt that this was causing unemployment among the
plumbing trade and also it was detrimental to the plumbing industry, so it was discussed and
Mr. Stine was asked if he would refrain from this, but Mr. Stine he thought it was actually
bringing more work to the plumbing industry rather than harming it. He denied that any
member of the board stated that the union would close Stine's shop unless he changed his
method of conducting business. It was conceded that the sale of prefabricated plumbing
material and the advertising of such material for sale was not a breach of the plumbing
contract hereinafter discussed at length.
On April 11, 1956 it was reported to the union that Ringelberg was cutting pipe contrary to
the contract. Ringelberg was not a journeyman plumber and was accordingly not permitted to
cut pipe. He was employed by Stine as a sales clerk and shop clerk and 75 percent of his time
was occupied in this capacity. The union however had given Stine permission to have
Ringelberg cut pipe for over-the-counter sales. This service occupied 25 percent of his time.
On the following day, April 12, Long reported this as a breach of the contract and a strike
was called for the morning of April 13. That morning no plumbers appeared for work. Stine
phoned McKee, managing director of the Federated Employers of Nevada to see what could
be done about it. McKee unsuccessfully tried to reach Long by telephone and the latter called
back later in the day. A meeting was arranged for 1:30 p.m. that day between McKee and
Long. What was said at that meeting is in dispute, but the jury had the right to conclude that
the meeting concerned other matters, that Stine was not present, and that the matter of the
strike was not discussed.
Stine was not present, and that the matter of the strike was not discussed. The first day of the
strike, April 13, was a Friday. On the following Monday, April 16, Stine commenced his
action for an injunction against the strike and for damages. On April 20, a temporary
restraining order was issued and bond thereon filed April 23. The strike lasted seven days. No
pickets were posted, there was no violence, and Stine was not placed on we do not
patronize lists. The case was fully tried on the motion for temporary injunction, which was
denied May 3. The strike however was not renewed. On June 8 this court denied an injunction
pending appeal.
On September 29, 1956 Stine closed his shop.
In May or June, 1956 Ringelberg left Stine's employment to take employment with the
City of Las Vegas, and August 8, 1956 he withdrew as plaintiff in the action.
Defendant's answer denied that the work stoppage violated the obligations of its contract
and justified the strike on the asserted ground of plaintiff's breach by his failure to pay health
and welfare contributions; by working Ringelberg, not a qualified journeyman, on
pipe-cutting machines for contract jobs without journeyman supervision; by employing
Ringelberg as a second apprentice at a time plaintiff was entitled to employ only one
apprentice and by working Ringelberg and other employees on Saturday without paying the
overtime rate.
Defendant first lists a number of separate legal issues revolving about the grievance and
arbitration machinery set up in the contract between the employers' association and the union;
whether a no-strike clause may be implied from the contract provisions; whether there has
been a waiver by the parties of the provisions concerning arbitration because those parties
have not gone about the business of setting up arbitration machinery; whether the union, in
the belief that the employer had violated certain covenants of the agreement, may strike
without resorting to the grievance and arbitration machinery; whether despite the calling of a
strike by the union without resorting to agreed arbitration machinery the employer must
nonetheless himself resort to such arbitration machinery before seeking damages
resulting from the strike; whether the employer thus seeking damages resulting from the
strike, thus initiated without the union's attempt to arbitrate, must limit his damages to a
time not exceeding the point in which he in turn might have sought arbitration; whether
the employer has not rendered the union's repudiation of the agreement nonactionable
because he thereafter accepted benefits from the union in furnishing him laborers.
the union without resorting to agreed arbitration machinery the employer must nonetheless
himself resort to such arbitration machinery before seeking damages resulting from the strike;
whether the employer thus seeking damages resulting from the strike, thus initiated without
the union's attempt to arbitrate, must limit his damages to a time not exceeding the point in
which he in turn might have sought arbitration; whether the employer has not rendered the
union's repudiation of the agreement nonactionable because he thereafter accepted benefits
from the union in furnishing him laborers.
We may for the most part treat these matters together.
The agreement in question is entitled Labor Agreement, and the parties to the same are
Master Plumbers' Assn. of Clark County, Nevada, on the one hand, and the appellant union
on the other. The agreement provides that the Master Plumbers' Assn. and the union shall be
the bargaining agency for all agreements pertaining to the plumbing, piping, and heating
industry in the territory, including Clark County. Stine, like many others similarly situated,
had executed a power of attorney authorizing the Master Plumbers' Assn. to act for him and
to enter into a collective bargaining agreement with the union, which would be binding upon
Stine.
The agreement sets up a permanent joint committee to consist of two representatives from
the association and two from the union, with provision for alternates, the removal of the
members and alternates, requirement for credentials and filling of vacancies. It provides for
organization of the joint committee by election of a chairman and secretary and the manner of
voting, and further: The Committee shall be vested with power to adjust disputes and
grievances that may arise, and shall be empowered to interpret and make such rules and
regulations as may be necessary to give force and effect to the intent, purpose and meaning of
this Agreement. They shall be empowered to have access to all records pertaining to any case
where violations of this Agreement are involved. The Committee shall have the power to
require all parties to testify under oath before a Notary Public."
Notary Public. The following provision has particular significance: That for and in
consideration of the harmonious relations between the parties referred to and the public, and
the maintenance and stability of the conditions of employment and other mutually beneficial
relations, and for the purpose of prevention of strikes and lockouts by facilitating just and
peaceful adjustments of disputes and grievances that may arise from time to time for the
purpose of protecting and safeguarding the health and safety of the parties concerned, the
parties hereto have agreed that the understanding hereinafter set forth shall be binding on all
members of the parties hereto individually and collectively. (Emphasis supplied.)
The agreement reads in part: It is hereby agreed that the [Master Plumbers'] Association
and the union shall be the bargaining agency for all agreements pertaining to * * * the
Plumbing * * * Industry.
It further provides that an employer in the plumbing industry is any person who contracts
and supplies labor or material. He is required to employ regularly at least one journeyman
plumber. A journeyman is defined as a member in good standing of the local union.
The members of the union may work only for employers having a plumbing contract or
license and a master plumbing license and carrying Workmen's Compensation Insurance and
complying with all of the rules and regulations of the Nevada Industrial Commission. Union
members may work only for employers who are parties to the collective bargaining
agreement.
Under the title Board of Arbitration, provision is made for the appointment of two
representatives of the union and two representatives of the association as the Arbitration
Board. When the signatories hereto can not agree voluntarily in extending an agreement as
to hours, wages, working conditions, and/or any other contingency that may arise, the dispute
may be submitted to the Arbitration Board.
In the event of a dispute, both parties to this Agreement will attempt to settle it by a
meeting between the Union Representative and a Representative of the Plumbing, Heating
and Piping Contractors.
Union Representative and a Representative of the Plumbing, Heating and Piping Contractors.
If no agreement can be reached, the dispute will be referred to the hereinbefore mentioned
Joint Committee. If the Committee cannot reach an agreement, it shall be referred to the
Board of Arbitration for decision. (Emphasis supplied.)
The arbitration board is required to hear and decide appeals from the joint committee.
When the members of the arbitration board cannot agree, they are authorized to select a fifth
neutral party. A decision by a majority of the members of the Arbitration Board shall be
accepted as the decision of the said board and shall be binding upon the parties [to the
disputes and grievances mentioned in the preamble].
As noted above, the union, on April 12, called a strike for eight o'clock on the morning of
April 13 without presenting its grievance or resorting to any of the contract provisions for
submitting the same to arbitrationwhether, first, at a meeting between the union
representative and a representative of the contractors, or secondly, in failure of reaching an
agreement, through the joint committee, or thirdly, in failure of a joint committee agreement,
by reference to the board of arbitration.
[Headnote 1]
Appellant first asserts that there was no compulsion upon it to defer a strike without first
presenting its grievance and resorting to the arbitration clauses, for the reason that the
machinery provided in the agreement for such purpose had not been set up. It should be first
noted that Mr. McKee, managing director of the Federated Employers, was Stine's
representative throughout the entire period, and Mr. Long, as the business agent, was the
representative of the union. The evidence shows that in actual practice any complaint on the
part of the association on the one hand or any grievance by the union on the other would be
submitted to the cooperation of these two for settlement of the dispute. There is disagreement
as to whether the joint committee had actually been set up. Yet it would appear that such a
joint committee did function in June 1956 in the matter of a grievance not related to the
present dispute. Mr. Long, the union's business agent, served as a member of the joint
committee in that matter.
committee did function in June 1956 in the matter of a grievance not related to the present
dispute. Mr. Long, the union's business agent, served as a member of the joint committee in
that matter. Minutes in evidence indicated that a joint committee had functioned, though it
does not appear that a board of arbitration had been selected. The union accordingly justifies
the strike without first resorting to arbitration by the fact that neither the joint committee nor
the arbitration board was functioning at the time. But the grievance was that of the union. The
contract provisions are clear. The union did not, before the strike, submit the grievance to
representatives of the two parties. If it had, and if action of the joint committee became
necessary, and if that committee had not been activated, the burden was on the union to take
some steps to activate it. The same is true if it became necessary for the arbitration board to
act. To hold otherwise would deny recognition of the expressed purpose of the arbitration
covenantsto preserve harmonious relations between the parties * * * and for the purpose
of prevention of strikes and lockouts by facilitating the just and peaceful adjustments of
disputes and grievances that may arise from time to time. See Aircraft Lodge 703, Etc. v.
Curtiss-Wright Corp., 169 F.Supp. 837, 841; Structural Steel and Ornamental Iron Ass'n. v.
Shopmens Local Union, 172 F.Supp. 354, 360; Cuneo Press, Inc. v. Kokomo Paper Handlers'
Union, 7 Cir., 235 F.2d 108.
[Headnotes 2, 3]
Appellant further contends that because both parties failed to appoint members of either
the joint committee or the arbitration board, the arbitration covenants were waived by both
parties. That the parties could waive these provisions is of course true. But the assertion that
the recited conduct must be construed as a waiver fails to meet the rule laid down by this
court that the conduct should speak the intention clearly. Reno Realty and Investment Co.
v. Hornstein, 72 Nev. 219, 301 P.2d 1051, 1054. The assignment that respondent waived the
arbitration provisions of the agreement is without merit.
[Headnote 4]
Appellant contends that the contract included no specific no-strike clause, and that,
conceding that a no-strike clause may be implied, no such implication arises from the present
contract. We find it impossible to agree with this contention. To hold that there is not a clear
implication that the respective parties will refrain from enforcing their grievances without
first resorting to arbitration would do violence to the many covenants of the agreement above
recited. In United Construction Workers v. Haislip Baking Co., 223 F.2d 872, 876, 877, the
United States Court of Appeals, Fourth Circuit, in approving an instruction to the jury by the
district judge, said: It is argued that a strike could not constitute a breach of a contract which
did not contain a no strike clause; but we think it clear that the purpose of the contract was to
require the settlement of disputes and grievances by a procedure which would not cause the
disruption of business that would necessarily result from a strike and that a strike without
following such procedure was necessarily a breach. W. L. Mead, Inc. v. International
Brotherhood of Teamsters, 126 F.Supp. 466.
[Headnote 5]
Despite these conclusions, the union insists that even if it was in violation of the
arbitration covenants by calling a strike without resorting to arbitration, Stine was nonetheless
likewise bound by those covenants and was in turn bound by his contract to resort to the
arbitration machinery before seeking damages resulting from the strike. This contention is
supported neither by logic nor authority. [T]he Union called the strike, without affording the
company any opportunity to request arbitration. The Union must bear the sole responsibility
for its breach and assume the consequences thereof. Structural Steel and Ornamental Iron
Ass'n. v. Shopmens Local Union, 172 F.Supp. 354, 360. When [the union] struck, the wrong
was done and the damage to plaintiff began. Then it was that plaintiff's right of action for
damages and injunctive relief to prevent further damage accrued."
further damage accrued. Cuneo Press, Inc. v. Kokomo Paper Handlers' Union, 7 Cir., 235
F.2d 108, 111; Aircraft Lodge 703, Etc. v. Curtiss-Wright Corp., D.C., 169 F.Supp. 837, 841.
Appellant contends that respondent had first breached the contract and, having done so,
may not, under generally recognized principles of the law of contract, then maintain an action
for damages for the subsequent breach of the contract by appellant. In support of this
contention, appellant relies on general principles of contract law and upon general principles
of labor law to the end that a peaceful strike for a lawful objective (including the compelling
of performance by an employer of an agreement made for the benefit of his employees) is
now universally recognized. Despite the fact that this contention simply ignores the
effectiveness of the arbitration covenants (Shirley-Herman Co. v. International Hod Carriers,
Etc., 2 Cir., 182 F.2d 806, 810, 17 A.L.R.2d 609), we may note briefly the asserted breaches
of the contract by respondent.
It is first contended that the strike was justified because Stine was delinquent for three
monthly payments to the welfare fund. This we may dismiss as trivial. The union had a
number of times in the past accepted payments from Stine and others for several months'
delinquencies. This particular delinquency had not been called to Stine's attention. Nor need
we discuss the charge that Stine's employees had worked on Saturdays without receiving
overtime payment. Stine produced and was cross-examined at length with reference to
employees' individual time cards. None of these showed any case of failure to pay for
overtime. Long admitted that he had no proof of Stine's failure to pay overtime and that his
conclusion of Stine's failure to pay overtime arose from rumor. It does not appear that the
business agent or other representative of the union called any supposed failure to pay
overtime to Stine's attention prior to the strike or that any grievance growing out of such a
charge had ever been filed. The union's assertion of a breach by Stine because he had
permitted an employee to use his own truck on company business between shop and job was
satisfactorily explained and may be likewise classified as trivial.
between shop and job was satisfactorily explained and may be likewise classified as trivial.
[Headnote 6]
Next is asserted Stine's breach of the contract by permitting his employee Ringelberg to
cut pipe on contract jobs without journeyman supervision. The evidence is in conflict on this
item. A further breach relied upon was the employment of Ringelberg as one apprentice while
Stine was employing an additional apprentice. The employment of two apprentices exceeded
the permitted ratio of apprentices to journeymen. This alleged breach is in turn predicated on
Ringelberg's cutting of pipe for contract jobs, which activity, as noted above, is in dispute.
These items were likewise breaches (if proved to be such) that required resort to the filing of
a grievance and to the utilization of arbitration. No such resort was had. The arbitration
covenants were ignored. This assignment presents no legal ground for reversal.
Appellant contends that the judgment for damages based upon the verdict of the jury must
be reversed because, as a matter of law, the plaintiff's pleading and proof failed to establish
any claim upon which relief can be granted. This contention is based upon the fact, which
may be conceded, that the verdict and judgment, consistent with the pleadings and the proofs,
are for damages growing out of defendant's breach of the contractthe work stoppage, the
strike, without resorting to the arbitration machinery set up and agreed to by the contract in
question. The union's brief says: Clearly, then, plaintiff's claim is one for breach of contract,
or, possibly, for repudiation of the contract. Conceding then that although a labor contract
does not contain an express no-strike clause, it has been held that the same may be implied
where the contract contains machinery for adjustment of disputes through the grievance
procedure terminating in arbitration (Lewis v. Benedict Coal Corporation, 6 Cir. (1958), 259,
F.2d. 346, and cases therein cited), the rationale of the rule, says the union, presupposes that
the arbitration machinery is valid and legally enforcible. It contends, however, that a no-strike
clause may be implied only in a jurisdiction which recognizes such agreement to submit
any and all future disputes arising under the agreement to arbitration.
which recognizes such agreement to submit any and all future disputes arising under the
agreement to arbitration. This is followed by the contention that Nevada has adopted no such
statute but has on the contrary adopted by statute the rule that The common law of England,
so far as it is not repugnant to or in conflict with the Constitution and laws of the United
States, or the constitution and laws of this state, shall be the rule of decision in all the courts
of this state, NRS 1.030; that under the common law of England agreements to submit any
and all future disputes to arbitration are unenforcible; that such is the rule in this country with
the exception of ten states and the United States which have enacted special arbitration
statutes; that Nevada is not one of such states; that the overwhelming weight of authority is to
the effect that the common-law rule must be followed. Appellant's contention relies for
support on the annotation contained in 135 A.L.R. 79, under the title Validity of agreement
to submit all future questions to arbitration, which supports the common-law rule by citation
of cases from the Supreme Court of the United States (but see Textile Workers Union of
America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 923, 1 L.Ed.2d 972) and the courts of
last resort of over half of the states of the union, as well as England and Canada. This is
indeed a formidable array of authorities. Yet they are not unanimous, and we are impelled by
reason and logic, by the fallacies inherent in the common-law doctrine, by reason of the
nature of the development of the common law itself and by reason of the inapplicability of the
common-law doctrine of unenforcibility of arbitration contracts in this state, as particularly
illustrated by the appeal now before us, to adopt the minority view.
[Headnote 7]
It should first be noted that we are not compelled by reason of the statutory adoption of the
English common law to apply it in this case. We have heretofore held in the most conclusive
language that, despite such statute, we may reject the common law in instances where it is not
applicable to local conditions.
is not applicable to local conditions. Such was the case when we refused to adopt the
common-law doctrine of riparian rights. Jones v. Adams, 19 Nev. 78, 87, 6 P. 442, 3
Am.St.Rep. 788 (overruling Vansickle v. Haines, 7 Nev. 249); Walsh v. Wallace, 26 Nev.
299, 327, 67 P. 914; Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 P.317, 4 L.R.A. 60,
19 Am.St.Rep. 364. The last-mentioned case is cited and discussed by the Supreme Court of
Oregon in In re Hood River, 114 Ore. 112, 227 P. 1065, 1083. In like manner the Supreme
Court of Colorado in Crippen v. White, 28 Colo. 298, 64 P. 184, 186, said: The law of
necessity rendered the common-law doctrine of riparian rights wholly inapplicable in this
jurisdiction, and, as has frequently been stated, required its abrogation; so that,
notwithstanding the declaration of the statute, it has never been recognized as controlling in
the matter of water rights.
In People v. Appraisers, 33 New York 461, as quoted in Boquillas Land & Cattle Co. v.
Curtis, 11 Ariz. 128, 89 P. 504, 508, it was said: It is contrary to the spirit of the common
law itself to apply a rule founded on a particular reason to a case when that reason utterly
fails. And in the Hood River case, supra, the court said: The very essence of the common
law is flexibility and adaptability * * *. It finds widely different expression in different
jurisdictions. If the common law should become so crystallized that its expression must take
on the same form wherever the common-law system prevails, irrespective of physical, social,
or other conditions peculiar to the locality, it would cease to be the common law of history,
and would be an inelastic and arbitrary code. It is one of the established principles of the
common law, which has been carried along with its growth, that precedents must yield to the
reason of different or modified conditions. Id. 227 P. 1086, 1087.
The two main reasons assigned for holding that covenants for arbitration of all future
disputes are unenforcible are that such covenants are contrary to public policy and that they
oust the courts of jurisdiction. More logically expressed, this is but one reasonthat such
covenants are contrary to public policy because they oust the courts of jurisdiction.
The writer of the annotation in 135 A.L.R. at page 91, comments: As it now stands, the
case law in regard to the validity of general arbitration clauses is confused in statement and
theory, poorly reasoned, arbitrary, and not well designed to accomplish a useful purpose.
The comment is well supported. Note the statement in McCullough v. Clinch-Mitchell Const.
Co. (8 Cir. 1934), 71 F.2d 17, 20 (certiorari denied 293 U.S. 582, 55 S.Ct. 96, 79 L.Ed. 678):
It can hardly be said that the decisions as to the validity of provisions in contracts for
arbitration of disputes between the parties thereto are in a very satisfactory condition. With
reference to the support of the so-called common-law rule on the ground of public policy, it
was said in Mogul S.S. Co. v. McGregor, G. & Co. AC (Eng.) 25-HL: But it has been well
said that public policy is an unruly horse, and dangerous to ride'; and that judges are more to
be trusted as interpreters of the law than as expounders of what is called public policy.'
In some jurisdictions the common-law rule is apparently justified as a means of preventing
the arbitration of questions of law. However the rule is not so limited, but operates against
stipulations to arbitrate future disputed questions where all such questions, including those of
fact and law without exception, are to be arbitrated. And it is indicated in other cases that if
the stipulation does not embrace all future disputed questions, whether of law or fact, there is
no clear rule against such a covenant. Some of the cases upheld such covenants which,
though broad in themselves, did not include all future questions.
The second reason for the rule, that compulsory arbitration is an ouster of the jurisdiction
of the courts, does not fare much better in reason. In Chippewa Lumber Co. v. Phenix Ins.
Co., 80 Mich. 116, 44 N.W. 1055, 1056, the court notes: Any person may violate the most
solemn contract he has made, but he thereby becomes responsible to the injured party for
such violation.
We are disposed to quote with approval the A.L.R. annotator's further comment: Since
there is nothing immoral, or detrimental to the public, in stipulations to arbitrate any and all
disputes that may arise between the parties to a private contract, it seems that the most
that can be said in support of the rule against such stipulations is that they are, in
general, unwise.
the parties to a private contract, it seems that the most that can be said in support of the rule
against such stipulations is that they are, in general, unwise. But unwisdom is surely a strange
ground for the invalidation of contracts. The reported case which is followed by the
annotation to which such extensive reference has been made is Park Constr. Co. v.
Independent School Dist. No. 32, 209 Minn. 182, 296 N.W. 475, 476, 135 A.L.R. 59. There
is, we concede, a distinction in the status of the arbitration. In the case at bar we have a strike
called in violation of the arbitration covenants and a judgment for damages resulting from
such violation. In the Park Construction case, as defined by the court: There was actual
submission, full hearing, and award. All was the action of competent parties. They got the
result intended and for which they had the right to contract. Because of their competence and
the lawful nature of both means and end, it would be sheer caprice for us to nullify the whole
proceeding. Nevertheless, what the parties intended and accomplished was a common-law
arbitration, and thus raised the precise point relied upon in the instant appeal. The lower court
had sustained a demurrer to the complaint which sought to recover the award made to the
plaintiff in the arbitration. An application of the principle contended for by the union in this
appeal would have required an affirmance. The Supreme Court of Minnesota, in the opinion
of the court delivered by Stone, J., reversed. Overruling a number of prior Minnesota cases,
the court refused to invalidate the covenant providing for arbitration of all future disputes. It
dealt, first, with the contention that such executory agreements were void as against public
policy. The court said that this contention as to the historical basis for prior holdings is open
to serious question. Referring to the much quoted case of Scott v. Avery, 25 L.J. [N.S. Exch.]
308, it quoted the comment of Lord Campbell as eminent authority that the rule was the
product of judicial jealousy rather than judicial reasoning and arose in the time when the
emoluments of the judges depended mainly, or almost entirely, upon fees.' In those days they
had no fixed salary and so there was great competition to get as much as possible of
litigation into Westminster Hall, and a great scramble * * * for the division of the spoil.' In
consequence, they had great jealousy of arbitrations * * *.
Westminster Hall, and a great scramble * * * for the division of the spoil.' In consequence,
they had great jealousy of arbitrations * * *. Therefore they said that the Courts ought not to
be ousted of their jurisdiction, and that it was contrary to the policy of the law to do so. The
court went on to explain that there never was a factual basis for the holding that such
agreement ousted the jurisdiction of the courts; that it simply removed a controversy from the
arena of litigation; that it was no more an ouster than an agreement of compromise and
settlement, or a covenant not to sue; that such agreements simply disposed of issues without
litigation; that jury trials even in criminal cases may be waived; that the parties to arbitration
simply agreed on the decision of a tribunal of their own choice and erection; and that they had
a legal right to erect such tribunal. In overruling five earlier decisions of its own court the
Minnesota Supreme Court emphasized that the earlier cases were disapproved [209 Minn.
182, 296 N.W. 478.] notwithstanding their accord with a prevailing view of decision law
elsewhere, and admitted that its decision was contrary to the Restatement of the Law of
Contracts. In thus adopting the reasoning of the Minnesota court, we are not unaware of the
fact that the Minnesota legislature had enacted arbitration statutes, but the case cited arose not
under the statute but under the question of the applicability of the common-law rule.
In Latter v. Holsum Bread Co., 108 Utah 364, 370, 160 P.2d 421, 423, the Supreme Court
of Utah rejected as a defense to a suit for additional wages, under a labor contract, the failure
of the plaintiff's assignees to submit the dispute to arbitration as provided for in the contract.
Wolfe, J., concurred, with great regret, stating that in the absence of contrary legislation he
was not prepared to say that the rule that commercial arbitration contracts are unenforcible
because against public policy, should be applied to industrial arbitration agreements.
1
In the
field of industrial disputes between labor and management the uniform trend in legislation
has been toward the encouragement of collective bargaining.
____________________

1
The foregoing reference to Judge Wolfe's distinction between arbitration in commercial agreements and
arbitration of industrial agreements is clearer in the light of Prof. Williston's discussion of the same subject
matter. 6 Williston on Contracts, Revised Ed., p. 5402, 1930.
and management the uniform trend in legislation has been toward the encouragement of
collective bargaining. A labor-management agreement encourages labor and management to
settle disputes without resort to force. The grievance machinery in these contracts provides
for a peaceful means of disposing of future controversies arising under the agreement by
arbitration. There is no good reason why such machinery should not be set up in the
agreement and used by the parties. The long history of labor disputes indicates a trend away
from the courts and a trend toward arbitration and conciliation. The rule adhered to by courts
that commercial arbitration agreements are against public policy has long been criticized by
the courts, but the rule has been considered too firmly embedded to be overturned without
legislation. Judge Wolfe then refers to the discussion and origin and growth of the
common-law rule against enforcement of arbitration agreements in Kulukundis Shipping Co.
v. Amtorg Trading Corporation, 2 Cir., 126 F.2d 978, and in United States Asphalt Refining
Co. v. Trinidad Lake Petroleum Co., D.C., 222 F. 1006, both of which criticized the
common-law rule. The opinion summarizes the reasons for the rule (relying on United States
Asphalt Refining Co. v. Trinidad Lake Petroleum Co., supra) as (a) revocability of the
contract; (b) that such contracts are against public policy, (c) that the covenant to refer is but
collateral to the main contract and may be disregarded, leaving the contract keeper to his
action to damages for breach, (d) ouster of the jurisdiction of the courts, and (e) likewise
causes such ouster, unless the arbitration is simply a condition precedent to suit.
2
It then thus
discusses Lord Campbell's statement in Scott v. Avery quoted above and the comment
thereon in United States Asphalt Refining Co. v.
____________________

2
Added to the confusion is the addition from time to time in the various cases of reasons other than public
policy and the ouster of the courts to the reasons for the common-law rule.
In Utility Workers v. Ohio Power Co., 21 Labor Relations Reference Manual 2308 (1947), 77 N.E.2d 629,
the following additional reasons are recited for refusing to enforce arbitrations under the common law: (1) that
the arbitrators at common law had no authority to administer oaths or to compel the attendance of witnesses or
the production of books, documents or papers; (2) that under the common law, contracts to arbitrate could
always be revoked by a party prior to the making of an award; and (3) that the court could not compel the
arbitrators to make an award.
in Scott v. Avery quoted above and the comment thereon in United States Asphalt Refining
Co. v. Trinidad Lake Petroleum Company that a more unworthy genesis cannot be
imagined. [222 F. 1007.] The opinion then quotes at considerable length from the
Kulukundis case, supra. Reference is made to the opinion in that case. Much of it is pertinent
to our own holding but is too long to quote. The concurring opinion then refers to an earlier
Utah case affirming the common-law rule relative to commercial arbitration agreements and
says [108 Utah 364, 370, 160 P.2d 426.]: However, there is no reason to interject that same
rule into other fields of the law unless compelled to do so by legislation. We should not
hesitate to shake ourselves free from this rule whenever legislation indicates a change in
public policy. In the absence of legislation to the contrary, courts should not hold that
arbitration of disputes arising out of labor contracts are unenforceable as against public
policy. * * * It is time that courts generally evidenced a change in attitude to encourage rather
than discourage use of arbitration machinery in cases where such machinery is well adapted.
Justice Wolfe was finally impelled under the rule of stare decisis to uphold earlier decisions
of the Utah court upholding the common-law rule.
3
Justice McDonough concurred in the
opinion of Justice Wolfe.
Although Oregon has a statute authorizing settlement of future disputes, as well as existing
disputes, by arbitration and although in the case next noted the litigation revolved about an
executed arbitration award, the court specifically considered and determined the question as
to the validity in general of arbitration agreements for the settlement of future disputes. In
Rueda v. Union Pacific R. Co., 180 Ore. 133, 175 P.2d 778, 790, the court used the following
language: Consideration of the authorities compels us to repudiate the theory on which the
plaintiff has argued his case.
____________________

3
Justice Wolfe was also impelled to concur by reason of the Utah statute U.C.A. 1943, 104-36-1 (in all
respects similar to the Nevada statute) authorizing arbitration of existing disputes, but refraining from
authorizing arbitration of future disputes. We do not reach the same conclusion as Justice Wolfe that this
omission indicated the public policy of the state as approving the common-law rule.
plaintiff has argued his case. The rule that parties can not stipulate beforehand to submit
their rights generally to the judgment of a designated third party for a final determination' is
unsound. The rule that such agreements oust the courts of jurisdiction has an unworthy
genesis, is fallacious in reasoning and has been followed merely because of ancient
precedent. The court then expressly disapproved the dictum of an earlier case which
intimated that agreements making the decision of the arbitrators final and conclusive are void
because they oust the courts of jurisdiction. It also rejected the Restatement of the Law of
Contracts following the common-law rule as to executory arbitration agreements. It also
quoted at length with approval Scott v. Avery, 5 H.L.Cas. 811 (1856), cited above, rejecting
the earlier common-law rule and holding definitely that it would be a most inexpedient
encroachment upon the liberty of the subject if he were not allowed to enter into such a
contract. Lord Campbell said further in Scott v. Avery: I can see not the slightest ill
consequences that can flow from such an agreement, and I see great advantage that may arise
from it. Public policy, therefore, seems to me to require that effect should be given to the
contract.
In Local 1111, Etc. v. Allen-Bradley Co., 259 Wis. 609, 49 N.W.2d 720, 723, specific
enforcement of an arbitration agreement was denied, the court deciding to adhere to the
common-law rule above discussed. It quoted however with sympathy the following: Many of
the courts call such contracts illegal and void, but this characterization has been criticized as
wanting in strict accuracy, in view of the authority sustaining enforcement of executed
agreements, and other cases which apparently support a right to recover damages in case of
breach.
Note that in the Allen-Bradley case it was the union that sought specific performance as
against the present situation in which the employer sought damages for breach of the
arbitration covenants. This evokes reference to appellant's statement that Stine had breached
his covenant to employ only journeymen plumbers in the cutting of pipe on contract jobs,
and that the performance by Stine of this covenant was the quid pro quo for the union's
surrender of its proverbial right to strike and to submit to arbitration.
cutting of pipe on contract jobs, and that the performance by Stine of this covenant was the
quid pro quo for the union's surrender of its proverbial right to strike and to submit to
arbitration. This, we think, is not entirely accurate. The quid pro quo for the union's surrender
of its right to strike was the employer's surrender of his right to a lockout.
We note further at this point the additional confusion in the application of the
common-law rule. Many of the courts in upholding that rule rely on it in denying the right to
specific performance or injunction. Some of the cases seem to include enforcement by an
action for damages for the breach of the covenant. Others would appear to permit an action
for damages but to restrict such an action to nominal damages only. Throughout there appears
to be confusion in the consideration of the enforcibility of arbitration covenants whether in
law or in equity. Specific performance and injunction are of course equitable remedies.
Action for damages for breach is an action at law. Ordinarily, of course, equitable relief will
not be awarded where complete relief by an action at law is available.
To the foregoing we should add the well-recognized trend in this state for a number of
years for parties to insert in all manner of contracts clauses whereunder they agree to submit
to arbitration all disputes that may arise with reference thereto. The particular contract
involved here is a renewal of earlier contracts containing arbitration clauses. And for the most
part, nay, almost invariably, these contracts are drawn by expert counsel. Unquestionably
such contracts are drawn in good faith with the intention of the parties to carry them out.
We have noted what appears to us to be an ever-increasing trend to depart from or to
abrogate the common-law rule, and the reasons for such trend. We think this is apparent too
in the constant recurrence of dissenting opinions in the cases where the common-law rule has
been upheld. This court does not suffer from the embarrassment of the courts that have felt
impelled to bow to stare decisis in their own jurisdictions. In this state the question is res
integra.
state the question is res integra. We heretofore pointedly reserved the right to pass on the
question. Appellant refers us to In re Mollart, 58 Nev. 329, 337, 65 P.2d 676, 78 P.2d 93, 94,
in which we held that Nevada's Uniform Arbitration Act, Laws 1925, ch. 7, secs. 510-534
(dealing with existing controversies), had repealed an earlier act and so held that the later act
was the exclusive statutory method of arbitration in this state, so that an award under the
procedure of the early act was void. The case is not in point as to any of the present issues,
but significant is the following statement made by the court: Something is said in the briefs
to the effect that the award is good as a common-law award. As to that, we express no
opinion. We are therefore entirely at liberty to consider the uncertain and questionable origin
of the common-law rule, the apparent reason behind the rule, the conditions under which the
rule was originally enunciated, the question whether those conditions presently exist in this
state, whether the original reason or basis for the rule was valid and finally whether we should
or should not adopt or reject the rule as applicable or inapplicable to present conditions. For
conditions existing in the times of Lord Coke, we can perhaps do no better than refer to
Catherine Drinker Bowen's book The Lion and the Throne. No one can question the vast
change since those days or the vast difference in conditions now existing in Nevada without
reference to conditions in other states. When the states first adopted the common law of
England the population of the United States comprised some eight million inhabitants
occupying the Atlantic seaboard. Employment of labor was in its infancy. Industries were
confined to a moderate amount of agriculture, raising of cotton and tobacco, a few head of
livestock, trapping, fishing, and hunting, some interstate commerce, and like pursuits. The
settlement of the west was yet to commence. Today's vast industries were unknown,
transportation by steam was to come and virtually to go. The whole great automotive industry
(now selling seven million cars a year) was not dreamed of, nor was the rubber industry or
the oil industry, the manufacture of the phonograph, the telephone, radio, television,
airplanes and many others, or the incidental industries connected therewith.
of, nor was the rubber industry or the oil industry, the manufacture of the phonograph, the
telephone, radio, television, airplanes and many others, or the incidental industries connected
therewith. Many millions of people are engaged in these industries which were not even
conceived in the days of the adoption by the original states (and by other states from time to
time) of the common law of England, to say nothing of the days of Lord Coke. A half-million
union employees are said to be engaged in the steel industry alone. And one need but observe
the small number of reports of law and equity cases in the early days as compared with the
volumes of reports of the state and federal courts today, or to compare the number of courts
and judges of the earlier times with the number of courts and judges of the American courts
of today to note the preoccupation of the courts with the disputes presented to them. This is
so without even mentioning the many commissions in this country and in this state to which
are assigned the determination of issues which would otherwise be submitted to the courts.
To this we need only add the disputes in commercial and industrial issues which the courts
throughout the nation are daily deciding. Perhaps it is not amiss to refer to the constant and
inconsistent suggestions that the thousands upon thousands of personal injury suits that
congest our court calendars be submitted to commissions to be created for the purpose. When
we superimpose upon these conditions the acknowledged advisability of avoiding industrial
warfare, strikes, work stoppages, and lockouts that involve the lives of millions of our
population so that harmonious relations may be preserved, that labor may continue
uninterruptedly at work and that our vast industries may continue to function without
interruption, we should be gravely at fault if we felt that our hands were tied by a
common-law rule enunciated 350 years ago, of doubtful justification even then and of
confused and uncertain interpretation ever since.
The force of our conclusions may perhaps be illustrated by the following statement
contained in the union's brief: "If plaintiff had abided by the contract and permitted
Ringelberg to cut pipe only for over-the-counter sales, there is no reason to believe the
strike would have been called."
union's brief: If plaintiff had abided by the contract and permitted Ringelberg to cut pipe
only for over-the-counter sales, there is no reason to believe the strike would have been
called. To this we might add: If defendant had abided by the contract and its business agent
Long had called upon defendant's agent McKee to lodge the union's grievance that Ringelberg
was cutting pipe for contract jobs, there is no reason to believe that Stine would not have
discontinued such practice (if it existed) so that there would have been no occasion for the
strike.
[Headnote 8]
We must reject the contention of appellant that the judgment must be reversed because the
common-law rule declaring unenforcible agreements for arbitration of future disputes robs
the complaint of all force as stating a claim against the defendant.
The union asserts that even if Stine made out a case for damages growing out of the
union's work stoppage without resorting first to arbitration, the verdict for damages in the
sum of $50,000 was grossly excessive. The item of damages occupied a large proportion of
the trial, involved the admission of numerous exhibits, and appellant has devoted a large part
of its briefs to the subject. It calls attention to the fact that the strike lasted only seven days in
April 1956, and contends that Stine's closing down of his plumbing business in September of
that year could not possibly be a direct, natural, and foreseeable result of the seven-day strike
in April; that any damages caused directly by the seven-day strike would be restricted to the
possible standby costs which, under the evidence, ranged from $300 to a sum not exceeding
$2,400; that Stine's closing out of his plumbing business was a voluntary act not caused by
any breach of the union's duties under the labor agreement; that in any event Stine made no
attempt to sell the business as a going concern, or otherwise to mitigate his damages; that the
$50,000 verdict, or such part thereof in excess of $2,400, must stand or fall on the
justification of this item as a measure of the value of the good will of his business claimed to
have been lost by reason of the strike.
reason of the strike. We devote ourselves, as briefly as may be, to these items.
[Headnotes 9-11]
As we read appellant's brief attacking what it characterizes as this monstrous verdict,
appellant's main contention appears to be that it was the result of the court's prejudicial error
in admitting testimony, characterized as hearsay, of reports allegedly made to him by
plumbers and general contractors as to the effect of the strike on his ability to obtain
journeymen plumbers and to obtain plumbing sub-contracts from general contractors;
4
that
it was error for the court to admit the plaintiff's hearsay testimony that in the fall of 1956 his
accountant, a member of a firm of certified public accountants, had placed a valuation of
$50,000 on his business;
5
that it was error for the court to admit in evidence a purchase and
sale agreement between plaintiff and his superintendent, made about one year before the
strike, which provided that in the event of plaintiff's death, the superintendent would purchase
plaintiff's business, including the good will and equipment, but excluding the land and
building, for the sum of $50,000.6 It would appear then that if the evidence thus admitted
was competent, relevant, and material and that the objections thereto were properly
overruled, the weight to be given thereto and all reasonable inferences to be drawn
therefrom were proper subjects for the jury's consideration.
____________________

4
After the objection was made the court ordered: The testimony is to be allowed not to prove the truth but to
prove why the plaintiff did something. The jury is instructed to take this testimony into consideration, whatever
Mr. Stine testifies to that somebody else told him may not have been true but that is the reason Mr. Stine did
certain things. It is for a limited purpose. The question asked was: And just for the limited purpose of
provingjust state what you did and why you did it, not for the purpose of proving the truth of what he may
have told youwould you tell the jury what Mr. McKee reported to you? Thus limited, the ruling was proper.
Las Vegas Sun v. Franklin, 74 Nev. 282, 329 P.2d 867; International Longshoremen's, Etc. v. Juneau Spruce
Corp. (9 Cir. 1951), 189 F.2d 177, 191, af'd 342 U.S. 237, 72 S.Ct. 235, 96 L.Ed. 275.

5
Stine's testimony was in effect that he and his accountant arrived at the figure of $50,000 for the value of the
good will. [This figure] was his opinion as well as my opinion at the time. Q. That you had arrived at after
consultation? A. I think around $50,000. Stine's testimony of such concerted action and his testimony of the
value of the good will (in essence his opinion of the value of the good will) was not incompetent as hearsay
because that opinion was formed and was more or less dependent upon the figure arrived at by his accountant
from Stine's books and records and communicated by the accountant to Stine. Gulf Refining Co. v. Smith, 164
Ga. 811, 139 S.E. 716, 720; Powers v. Powers, 213 Ga. 461, 99 S.E.2d 818. See also Chaffee v. United States,
18 Wall. 516, 21 L.Ed. 908, 913.
excluding the land and building, for the sum of $50,000.
6
It would appear then that if the
evidence thus admitted was competent, relevant, and material and that the objections thereto
were properly overruled, the weight to be given thereto and all reasonable inferences to be
drawn therefrom were proper subjects for the jury's consideration. We have carefully
reviewed appellant's able briefs and oral argument on these issues, as well as other
assignments of error in rulings on admissibility of evidence, and have concluded that the
court's rulings are free of error. It would add nothing to the body of the law of evidence for us
to discuss these in detail, and would serve only to prolong unduly this already too long
opinion.
[Headnote 12]
We are satisfied that there was substantial evidence to support the jury's verdict of $50,000
damages even if we concede that the jury allocated almost all of this amount to the
respondent's loss of the good will of the business. Annual profits over a period of years
averaged over $37,000. One expert witness, after allowing a reasonable return on the capital
investment and the labor of Stine, concluded that over $11,000 of the annual profit was
allocable to good will. Capitalizing this at various percentages, he fixed the value of the good
will at from $57,000 to $95,000.7 The union's expert witness placed a value of $13,000
on the good will, but a number of factors existed that might have caused the jury to
discount his minimizing of this value.
____________________

6
Defendant's counsel, in cross-examining Stine, secured an admission that by the terms of a written
agreement between Stine and one Lewis, the latter was made the beneficiary of an insurance policy on Stine's
lifethe proceeds, on Stine's death, to go to Lewis to buy the business from Stine's estate. From this the jury
might infer that such inducement to Lewis to remain with the plumbing company indicated his importance as a
key man, to whom, rather than to Stine, was due the credit of any item of good will. When, on redirect, Stine
offered the entire agreement, defendant objected on the ground that the contract had nothing to do with the
issues of this case. The entire contract, however, showed that Lewis could resign whenever he desired, and
made no provision that if Lewis should die his estate should in any way profit from the insurance. Such situation,
or any other provision that might counteract any persuasive force of the admission, was properly admissible
under the general rule. Perrin v. United States (9 Cir. 1909), 169 F. 17, 26. 7 Wigmore on Evidence, 3d Ed.,
2113, pp. 523-528. As to the nature of the objection urged, see State v. Kuhl, 42 Nev. 185, 175 P. 190, 196, 3
A.L.R. 1694.
at from $57,000 to $95,000.
7
The union's expert witness placed a value of $13,000 on the
good will, but a number of factors existed that might have caused the jury to discount his
minimizing of this value. The jury had before it the full history of the plumbing company, its
revenues, costs, and profits, as well as information reflected from its income tax returns over
the years, prepared by certified public accountants and other sources. The learned trial judge,
in denying the union's motion for judgment notwithstanding the verdict and its alternative
motion for a new trial, said: There is evidence ample to support a verdict ranging anywhere
from, the Court recalls from three to four thousand dollars up to as high as seventy to ninety
thousand dollars, possibly more. The Court has no way of knowing how the jury arrived at the
figure of $50,000.
In Ostertag v. La Mont, 9 Utah 2d 130, 339 P.2d 1022, 1025, the court said: There is
another important factor to consider in determining whether the verdict should be interfered
with: that is, the deliberate action of the trial court upon the question of damages in his ruling
upon the motion for a new trial. When the trial judge, with his obvious advantages in close
contact with the parties and their witnesses has reviewed the situation and given his opinion
on the question, it lends some additional verity to the judgment. It will not lightly be
disturbed by this court, nor at all unless it is unreasonable in view of the whole record before
us.
Both parties rely on Lewis v. Benedict Coal Corporation, 6 Cir., 259 F.2d 346, 352. It
supports respondent's main contention that a strike to settle a dispute which a collective
bargaining agreement provides shall be settled by an exclusive and obligatory alternative
procedure constitutes a violation of the agreement. Appellant relies on that part of the
decision and opinion which sets aside an item of damage found by the jury in the sum of
$21,000 resulting from a destruction by fire of a certain cable on a construction project
which was abandoned after construction was interrupted by the union's strike.
____________________

7
See Standard Oil Co. of Cal. v. Moore (9 Cir. 1957), 251 F.2d 188, 219; Greenwood v. Hotel Employees
Alliance, 19 LRRM 2073 (CC Ala. 10th Cir.).
on a construction project which was abandoned after construction was interrupted by the
union's strike. The court said: Clearly this loss, if it be treated as such, is an item of special
damages which could not have been within the contemplation of the parties to the contract.
In the instant case the jury was specifically instructed: If the Plaintiff is entitled to damage
then recoverable damages include compensation for all injury to the plaintiff's business
resulting from the commission of wrongful acts for which the defendant is responsible
provided such injury resulted in the natural and usual course of events so that it can fairly and
reasonably be said that if the parties had thought about such a breach when the contract was
made, loss of such character would have been within their contemplation.
[Headnote 13]
Appellant asserts that the evidence shows that Stine took no steps to mitigate his loss, and
that for such reason the $50,000 verdict cannot be sustained. Stine was examined and
cross-examined at great length on this point. The jury was properly instructed as to Stine's
duty to attempt to mitigate his loss. The question was one for the jury and beyond the scope
of our review. Shirley-Herman Co. v. International Hod Carriers, Etc., 2 Cir., 182 F.2d 806,
810, 17 A.L.R.2d 609. The assignment is without merit.
[Headnote 14]
In support of its contention that the closing down of plaintiff's plumbing business in
September 1956 could not be a direct, natural, and foreseeable result of the seven-day strike
in April of that year, appellant relies on Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Reprint
145, 5 Eng.Rul.Cas. 502; General Magnetic Corp. v. United E. R. & M. W., Etc., 328 Mich.
542, 44 N.W.2d 140; and Lewis v. Benedict Coal Corporation, 6 Cir., 259 F.2d 346. These
cases have to do with impropriety of allowance for speculative lost profits, items of damage
not reasonably contemplated by the parties under their contract, and similar items under
which the law is undoubtedly correctly stated.
undoubtedly correctly stated. These items were likewise properly submitted to the jury under
appropriate instructions.
Appellant argues at considerable length that the evidence shows that the closing down of
plaintiff's business was the plaintiff's voluntary act and decision caused by the down trend of
the construction and plumbing industry in the district and by his own desire to divert his
capital and assets to another business enterprise, and was not caused by any breach of
appellant's duties under the labor agreement. In support of this argument appellant reviews
the testimony at length. Appellant's entire discussion presents, in our opinion, issues of fact
that were properly submitted to the jury.
[Headnote 15]
The same is true with reference to appellant's prolonged discussion concerning evidence of
an incident under which the union had disciplined three of its members who were plumbers
who had worked for Stine. Appellant's contention is that this had to do entirely with the
internal workings and procedures of the union and had no proper place in the evidence
submitted to the jury. Respondent's theory is that these men were disciplined apparently
because they had not reported to the union that Ringelberg was cutting pipe, and that this
promoted the diffidence of other plumbers to work for Stine in fear of likewise being
disciplined by the union. We do not intend to be drawn into this prolonged argument other
than to remark that the situation was relevant to the issue of damages. It too presented
questions of fact for the jury's determination.
Appellant discusses a number of other issues involved in the case, but these discussions
are, in our opinion, devoted to the contention that the evidence does not support the verdict.
In each instance the evidence was in conflict or was such that proper inferences might be
drawn by the jury in favor of one of two resulting conclusions. In none of these instances do
we feel called upon to interfere with the jury's verdict. An indication of the extent to which
we would otherwise have to go is found in the appellant's request for 24 special
interrogatories which however were not given.
is found in the appellant's request for 24 special interrogatories which however were not
given.
[Headnote 16]
Appellant assigns error in the refusal to give several of its requested instructions. For the
most part the rejected instructions were embraced in other instructions which correctly stated
the law. Other rejected instructions were incomplete as requested and properly refused. The
rejection of appellant's special interrogatories was a matter within the discretion of the trial
court. 5 Moore's Federal Practice, 2nd Ed., 49.05, pp. 2217-2218.
Appellant has discussed other matters to which we have given careful attention but which,
in our opinion, point to no substantial prejudicial errors, or involve questions of fact
submitted to and determined by the jury under substantial evidence supporting the verdict.
The judgment is affirmed with costs.
Pike, J., and Brown, District Judge, concur.
McNamee, C. J., having disqualified himself, the Governor commissioned Honorable
Merwyn H. Brown, District Judge of the Sixth District, to sit in his place.
____________
76 Nev. 220, 220 (1960) Mahan v. Hafen
L. W. MAHAN, Individually, and as Administrator of the Estate of ROBERT MAHAN,
Deceased; LARRY TAYLOR; CECIL E. CLUFF, Individually, and as Administrator of the
Estate of PHILLIP CLUFF, Deceased, Appellants, v. MAX HAFEN, Respondent.
No. 4254
April 25, 1960 351 P.2d 617
Department No. 1.
Action for injuries to, and death of, passengers in automobile which ran into rear end of
defendant's truck as defendant was making left turn into side road. The trial court rendered
judgment for defendant, and plaintiffs appealed.
76 Nev. 220, 221 (1960) Mahan v. Hafen
trial court rendered judgment for defendant, and plaintiffs appealed. The Supreme Court,
McNamee, C. J., held that it was for jury to say whether defendant had been negligent in
failing to give signal 300 or more feet before commencing to turn, in failing to look to rear
immediately before making turn, or in cutting corner of intersection.
Affirmed.
(Petition for rehearing denied May 17, 1960.)
Foley Brothers, of Las Vegas, for Appellants L. W. Mahan and Cecil E. Cluff.
Earl and Earl, of Las Vegas, for Appellant Larry Taylor.
Morse, Graves and Compton and James H. Phillips, of Las Vegas, for Respondent.
1. Automobiles.
In action for injuries to, and death of, passengers in automobile which ran into rear end of defendant's
truck as defendant was making left turn into side road, it was for jury to say whether defendant had been
negligent in failing to give signal 300 or more feet before commencing to turn, in failing to look to rear
immediately before making turn, or in cutting corner of intersection.
2. Negligence.
No liability attaches unless there is causal connection between negligence and injury.
3. Automobiles.
truck as defendant was making left turn into side road, defendant could not be held liable unless his
negligence, if any, had been proximate cause of accident.
4. Negligence.
Proximate cause is any cause which in natural and continuous sequence, unbroken by any efficient
intervening cause, produces injury complained of and without which result would not have occurred.
5. Negligence.
Where two or more causes contributed proximately to injuries contained of, recovery may be had against
either one or both of joint tortfeasors.
6. Automobiles.
truck as defendant was making left turn into side road, even if jury had found that both drivers had
been negligent, defendant could have been relieved of liability only if automobile
driver's negligence had been sole proximate cause of accident.
76 Nev. 220, 222 (1960) Mahan v. Hafen
that both drivers had been negligent, defendant could have been relieved of liability only if automobile
driver's negligence had been sole proximate cause of accident.
7. Automobiles.
truck as defendant was making left turn into side road, whether defendant's negligence, if any, was
proximate cause of accident was factual matter, regardless of whether negligence arose by violation of
statute or by ordinary negligence.
8. Automobiles.
truck as defendant was making left turn into side road, question as to which driver's negligence had been
proximate cause of accident, if in fact both drivers had been negligent, was for jury.
That, as triers of fact, judges of reviewing court might have concluded that defendant had been negligent
and that his negligence had been a concurring proximate cause of motor vehicle collision, would not permit
reviewing court to set aside jury's contrary finding.
10. Automobiles.
In rural areas, where traffic conditions differ and intersecting roads more often than not vary in size and
in degree of intersecting angle, driver need not execute left turn in such manner that his vehicle is entirely
to right of center of roadway into which he is making left turn.
11. Witnesses.
truck as defendant was making left turn into side road, wherein witness for plaintiffs testified that there
were no restrictions on passing in area where accident took place, inquiry as to whether statute prohibited
driving on left side of road within 100 feet of intersection constituted proper cross-examination.
Where statute prohibiting driving on left side of roadway when approaching within 100 feet of or
traversing intersection was already in evidence without objection in motor vehicle collision case, reading of
statute to jury during argument without objection at that time was not error which would be considered for
first time on appeal.
In absence of any objection to reading of statute to jury in motor vehicle collision case, trial court was not
called upon to make any ruling which could be deemed excepted to under Rule. NRCP 46.
14. Trial.
Under circumstances of motor vehicle collision case, plaintiffs were in no manner prejudiced by
reference to fact that plaintiffs' attorney was brother of local district attorney, where reference was ordered
stricken from record.
76 Nev. 220, 223 (1960) Mahan v. Hafen
15. New Trial.
truck as defendant was making left turn into side road, one plaintiff's implied consent to action of court in
permitting reading of probate petition, disclosing that a coplaintiff had made claim against estate of
deceased driver of automobile in which plaintiffs had been riding at time of accident, would have to be
assumed from his silence with respect to such exhibit: and trial court would not be put in error for denying
such plaintiff's new trial motion predicated upon surprise which ordinary prudence could not have guarded
against.
16. New Trial.
Where evidence is relevant to only one of several consolidated cases, it is incumbent upon counsel to see
that such evidence is limited to particular case to which it is legally admissible, and failure of counsel to
request instruction in such matter or otherwise to act, and his speculating instead on chance of a favorable
verdict, precludes him from claiming surprise after verdict of jury.
OPINION
This is an appeal from a judgment on a jury verdict in favor of respondent. Two actions for
wrongful death and one for personal injuries, all resulting from the same mishap and each
based on a charge of negligence, were consolidated for trial in the court below.
On December 12, 1956 six college students were traveling on U. S. Highway 91 from
Provo, Utah, to their homes in Los Angeles, California, for Christmas vacation. As they were
motoring along in an automobile owned by the father of the driver, Joan Sperry, at a point
approximately one mile southwest of Mesquite, Nevada, they ran into the rear end of a truck
being driven by respondent which was loaded with bales of hay. Respondent at the moment
of collision was leaving the highway on the left thereof and entering a side road. The accident
happened during daylight. As a result of the collision Joan Sperry and two other passengers
were killed. Plaintiffs below were a surviving passenger, Larry Taylor, and the legal
representatives of said two other passengers. Joan Sperry's personal representative was not a
party to the action.
76 Nev. 220, 224 (1960) Mahan v. Hafen
One of the errors assigned by appellants was the failure of the trial court to grant their motion
for judgment notwithstanding the verdict or in the alternative a new trial. It is their contention
that the evidence shows without conflict that respondent was negligent in that he failed to
give a left-hand signal 300 or more feet before commencing to turn, that he failed to look to
the rear immediately before making the turn, and that he was in the process of cutting the
corner of the intersection at the time of the collision, the first two alleged acts of negligence
being in violation of state law. Respondent on the other hand contends that these as well as
the question of proximate cause were all factual questions based on conflicting evidence, and
thus the conclusion of the jury in favor of respondent cannot be set aside on appeal.
[Headnote 1]
The transcript of the evidence contains testimony of respondent that he did not give the
signal of his intended left-hand turn (the signal was a standard mechanical arm operated by a
lever on the dashboard of the truck) until he was 150 or 200 feet from the intersection, that he
did not look to the rear after he gave the turn signal, and that he started his left turn some 50
to 75 feet before he reached the intersection. On the other hand the transcript discloses that
respondent also testified that he was 300 or 400 feet from the turnoff when he raised the
signal arm, and that thereafter when he was 100 feet, probably a little more from the
turnoff, he looked back through his rearview mirror. Oscar Abbott, a deputy sheriff who
arrived at the scene shortly after the collision, testified that respondent had told him there that
he had not looked back to see if a car was coming, but respondent denied making such a
statement to Abbott. With respect to cutting the corner, exhibits in evidence, together with
respondent's testimony in explanation thereof, created the possibility that reasonable men
might differ as to whether or not respondent was making a proper turn at the time of the
accident. All of the appellants' assertions of negligence on the part of respondent became
factual issues, the determination of which was solely the function of the jury.
76 Nev. 220, 225 (1960) Mahan v. Hafen
respondent became factual issues, the determination of which was solely the function of the
jury.
[Headnotes 2-4]
Even if the jury considered that the respondent was negligent in one or more respects
(which cannot be ascertained because of the absence of special interrogatories), nevertheless
unless such negligence was a proximate cause of the accident, liability of respondent would
not result. Smith v. Taylor-Button Co., 179 Wis. 232, 190 N.W. 999; Dieckmann v.
Signorini, 47 Cal.App.2d 481, 118 P.2d 319. Proximate cause is any cause which in natural
and continuous sequence, unbroken by any efficient intervening cause, produces the injury
complained of and without which the result would not have occurred. Rimco Realty & Inv.
Corp. v. La Vigne, 114 Ind.App. 211, 50 N.E.2d 953. No liability attaches unless there is a
causal connection between the negligence and the injury. Clark v. Chrishop, 72 Ida. 340, 241
P.2d 171; Smith v. Taylor-Button Co., supra.
[Headnotes 5-7]
Where two or more causes proximately contribute to the injuries complained of, recovery
may be had against either one or both of the joint tort-feasors. Smith v. Payne, 85 Ga.App.
693, 70 S.E.2d 163. If the jury found that Joan Sperry and respondent were both negligent,
then, to relieve respondent of liability to these appellants it must have found that Joan
Sperry's negligence was the sole proximate cause of the accident. Whether respondent's
negligence, if any, was a proximate cause of the accident is a factual matter regardless of
whether the negligence arose by violation of statute or by ordinary negligence. Styris v. Folk,
62 Nev. 208, 209, 139 P.2d 614, 146 P.2d 782. Negligence per se and proximate cause are
two separate and distinct issues. While one is presumed as a matter of law, the other must,
nevertheless, be proved as a matter of fact. Smith v. Zone Cabs, 135 Ohio St. 415, 21 N.E.2d
336, 339.
Evidence was presented to the jury that the automobile driven by Joan Sperry was going
somewhere between 50 and 90 miles per hour before she applied her brakes some 144 feet
before the point of impact; that back up the road 500 feet from this point there was a
highway sign indicating a T type of intersection.
76 Nev. 220, 226 (1960) Mahan v. Hafen
brakes some 144 feet before the point of impact; that back up the road 500 feet from this
point there was a highway sign indicating a T type of intersection. She attempted to pass to
the left despite the said intersection sign. The six students were laughing and singing while
and after passing this sign. It was daylight and the truck was plainly visible, proceeding at a
speed of from 5 to 10 miles per hour.
[Headnotes 8, 9]
Under this evidence we cannot say that only one inference may be drawn as appellants
contend. Thus the question of whose negligence was the proximate cause of the accident, if in
fact respondent was negligent, was for the jury. That as triers of the fact we might have
concluded that the respondent was negligent and that his negligence was a concurring
proximate cause does not permit us on appeal to set aside the jury's contrary finding. Murphy
v. Murphy, 65 Nev. 264, 193 P.2d 850.
[Headnote 10]
Error is assigned in the court's failure to give the following instruction:
You are instructed that ordinary care requires that the driver of any vehicle making a left
turn into an adjoining roadway must keep to the right of the center line of the highway along
which he has been proceeding, until he passes the center of the adjoining roadway. Ordinary
care further requires that the driver shall not commence to turn before he reaches the center of
the adjoining roadway. Thus, in the exercise of ordinary care, the driver must execute a left
turn so that the vehicle is entirely to the right of the center of the roadway he is entering at the
time he is entering it.
It is admitted in appellants' brief that at the time of the accident there was no Nevada
statute defining how turns of this type were to be made. In the absence of statute, such
instruction in our opinion does not state the law with respect to turns made in rural areas
where traffic conditions differ and intersecting roads more often than not vary in size and in
the degree of the intersecting angle. It was a question for the jury to determine from the
evidence whether respondent was making a proper turn under the circumstances.
76 Nev. 220, 227 (1960) Mahan v. Hafen
a proper turn under the circumstances. The court properly refused to give said instruction.
[Headnotes 11-13]
Respondent submitted an instruction which the court refused to give to the effect that the
law of Nevada provides that no vehicle shall at any time be driven to the left side of a
roadway when approaching within 100 feet of or traversing any intersection. The court
however permitted counsel in his final argument to the jury to state that such was the law, and
to refer to the pertinent statute.
On direct examination Oscar Abbott, a witness for appellants, testified that in the area
where the accident took place passing was not restricted. On cross-examination he was asked
if it was not a fact that a Nevada statute prohibits a motorist to drive on the left-hand side of a
road within 100 feet of an intersection. Being relevant to impeachment this was proper
cross-examination. Appellants objected to the question only on the ground that the junction of
the highway and side road was not an intersection. Thereafter, without further objection,
respondent was permitted to read the said statute to the witness in the presence of the jury and
to ask the witness if he were aware of said statute. Under these circumstances where the
statute was already in evidence without objection, the reading of the statute to the jury during
argument without objection at that time was not error which will be considered for the first
time on appeal. In the absence of any objection, the trial court is not called upon to make any
ruling which could be deemed excepted to under Rule 46, NRCP. Cranford v. State, 76 Nev.
113, 349 P.2d 1051.
[Headnote 14]
During his argument to the jury respondent's counsel in referring to one of the attorneys for
appellants stated: Maybe he wanted to have his brother bring criminal proceedings and bring
his brother in to prosecute. The brother referred to was at that time the local district attorney.
Appellants contend that this statement was untrue and inflammatory, and amounted to
prejudicial misconduct of counsel. Inasmuch as these remarks were ordered stricken from
the record and the jury admonished to disregard them, and respondent's counsel himself
asked that they be disregarded, we fail to see that appellants were in any manner
prejudiced thereby.
76 Nev. 220, 228 (1960) Mahan v. Hafen
were ordered stricken from the record and the jury admonished to disregard them, and
respondent's counsel himself asked that they be disregarded, we fail to see that appellants
were in any manner prejudiced thereby. Lawson v. Town & Country Shops, 159 Cal.App.2d
196, 323 P.2d 843.
The final assignment of error is raised in the separate brief of appellant Larry Taylor.
[Headnote 15]
During the examination of L. W. Mahan, one of the appellants, after counsel had
approached the bench to confer about the exhibit hereinafter mentioned, Mr. Morse, one of
the attorneys for respondent stated to the court in the presence of the jury: Your honor, with
the stipulation of counsel we have the Case #86554, Department Two of the Eighth Judicial
District Court of the State of Nevada, in and for the County of Clark. It is the petition for
probate of the estate of Joan Sperry, deceased. Your honor indicated that he would take
judicial notice of the filing of the pleadings and we offer same in evidence. Without
objection by any of the appellants the court then stated: Judicial notice is so taken of said
file. As Mr. Morse commenced to read the petition in said file, Mr. Joseph M. Foley, one of
the attorneys for the appellants, other than appellant Taylor, stated: I wonder if he could read
the entire file, have the file dates. Mr. Morse then read the file date and the balance of the
petition which stated in part that Mr. Foley was the petitioner; that he had been retained as an
attorney by L. W. Mahan who was the father and heir at law of Robert Mahan, deceased (one
of the victims of the accident); that L. W. Mahan had a claim for the wrongful death of his
said son against the estate of Joan Sperry, deceased; that said claim resulted from the said
Joan Sperry, negligently, recklessly and carelessly, or in a manner grossly negligent driving
an automobile against a truck driven by Max Hafen and as a direct and proximate result said
Robert Mahan was killed. The entire petition including the verification thereof by Joseph M.
Foley was read to the jury.
76 Nev. 220, 229 (1960) Mahan v. Hafen
The first time any of the appellants made objection to this evidence was after the verdict in
the motion of appellant Taylor for a new trial based on surprise which ordinary prudence
could not have guarded against.
In view of the record we are not impressed with the merits of appellant Taylor's argument
in support of his claim of surprise. His implied consent to the action of the court if not in fact
his stipulation thereto must be assumed from the silence of appellant Taylor with respect to
this exhibit. As to the other appellants, it appears that the taking of judicial notice of the
contents of the petition and the reading of the same to the jury was with their approval if not
in fact upon their stipulation.
[Headnote 16]
It may well be true that said exhibit, upon proper objection, would not be competent
evidence insofar as appellant Taylor's case was concerned. But as it often happens in the trial
of consolidated cases that some evidence is relevant only to one of the several cases, under
such circumstances it becomes incumbent upon counsel to see that such evidence is limited to
the particular case to which it is legally admissible. The failure of counsel to request an
instruction in such matters or otherwise to act and thereby speculate on the chance of a
favorable verdict precludes him from claiming surprise after verdict of the jury. Noble v.
Tweedy, 90 Cal.App.2d 738, 203 P.2d 778; Robbins v. Robbins, N.D., 70 N.W.2d 37.
As no prejudicial error appears in the record the judgment is affirmed.
____________
76 Nev. 230, 230 (1960) Timney v. Timney
FLORENCE TIMNEY, Appellant, v.
WALTER J. TIMNEY, Respondent.
No. 4259
April 26, 1960 351 P.2d 611
Department No. 2.
Divorce proceeding. The lower court rendered a judgment, and wife appealed. The
Supreme Court, McNamee, C. J., held that fact that trial court determined that wife was not a
proper person to have custody of children, and gave custody to husband, was a sufficient
implied finding that husband was a fit and proper person.
Affirmed.
Harry E. Claiborne, of Las Vegas, for Appellant.
Edward G. Marshall, of Las Vegas, for Respondent.
1. Divorce.
That trial court in divorce proceeding determined that wife was not a proper person to have custody of
children, and gave custody to husband, was a sufficient implied finding that husband was a fit and proper
person. NRCP 52(a).
2. Divorce.
On appeal in divorce proceeding, reviewing court assumed that trial court considered the present comfort
and future well-being of children in awarding custody. NRS 125.140.
3. Infants.
Trial court has large discretion in determining what is best for child's welfare, and unless such discretion
is abused, judgment will not be disturbed.
4. Divorce.
Evidence in divorce proceeding supported trial court's findings and conclusions awarding custody of
children to husband.
OPINION
This is an appeal from a judgment awarding the respondent husband a divorce. The only
question raised on appeal concerns the award of custody of the children to respondent.
The trial court found that the children, two boys aged respectively 11 and 5, were in the
custody of the respondent during the pendency of the action and it was the court's conclusion
that they should remain there, except for certain visitation periods. It expressly found that
appellant is not a proper person to have custody of these minor children.
It was admitted by appellant during the trial and conceded by her attorney in his opening
brief herein that appellant had been guilty of adultery. Other evidence in the record showed
appellant's neglect of the children and of the household. Appellant nevertheless contends that
since the court did not expressly find that respondent was a fit and proper person to have
custody, the award of custody to him was error, particularly in view of the fact that he was 55
years of age while appellant was 41, and because of evidence that he had used improper
language in the presence of the children. In our opinion this contention is devoid of merit.
[Headnote 1]
Rule 52(a) N.R.C.P. provides that in all actions tried without a jury the court shall find
the facts specially and state separately its conclusions of law thereon. There was no
allegation in respondent's complaint that he was a fit and proper person, although respondent
in his answer to appellant's cross-complaint did deny that she was a fit and proper person to
have custody of the minor children. The trial court made express findings on all of the
material matters pleaded and the finding that the children should remain in the custody of
respondent is an implied finding that he was a fit and proper person. Rule 52(a), therefore,
was not violated. Garibaldi Bros. Trucking Co. v. Waldren, 74 Nev. 42, 321 P.2d 248.
[Headnote 2]
It will be assumed that the court considered the present comfort and future well-being of
the children as required by NRS 125.140. The court's keen desire to make such arrangement
as seemed for the best interests of the children is manifest throughout the hearing. Couturier
v. Couturier, 76 Nev. 60, 348 P.2d 756.
[Headnote 3]
The trial court is vested with a large discretion in determining what is for a child's best
welfare. Murphy v. Murphy, 65 Nev. 264, 193 P.2d 850. Unless such discretion is abused, the
judgment will not be disturbed. Goto v. Goto, 52 Cal.2d 118, 338 P.2d 450.
[Headnote 4]
The lower court had the opportunity to see and observe the parties and from their
demeanor on the witness stand appraise their relative fitness. Furthermore the two boys were
interviewed by the judge in chambers. These circumstances, together with the abundance of
evidence in the record to support the court's findings and conclusions require affirmance of
the judgment.
Judgment affirmed.
____________
76 Nev. 232, 232 (1960) Von Hofen v. Oncken
FREDERICK VON HOFEN, HOWARD ANDERSEN, GORDON SHERWOOD, Jr., and
C. E. McLAUGHLIN, Appellants, v. EDWARD ONCKEN and MERL SAGE, Respondents.
No. 4240
April 27, 1960 351 P.2d 614
Action to recover the price of corporate stock against buyers who claimed breach of
warranty. Judgment for the sellers in the trial court, and the buyers appealed. The Supreme
Court, Pike, J., held that the evidence failed to sustain the defense of breach of warranty.
Judgment affirmed.
Goldwater and Singleton, of Las Vegas, for Appellants.
Denton and Smith and George F. Ogilvie, Jr., of Las Vegas, for Respondent Oncken.
Foley Bros., of Las Vegas, for Respondent Sage.
1. Corporations.
In action by sellers to recover the price of stock against buyers who pleaded breach of warranty in that
financial statements of the corporation forming part of the agreement did not fairly present the financial
condition of the corporation because certain accounts carried as accounts receivable as prepared by
corporation's bookkeeper should have been written off as bad debts because uncollectible, evidence failed
to sustain the defense of breach of warranty.
Findings and judgment of the trial court supported by substantial evidence will not be disturbed.
OPINION
Appellants who were defendants in two separate actions in which respondents Oncken and
Sage, respectively, were plaintiffs, appeal from judgments for money in favor of each of the
respondents. The two actions, involving identical issues, were consolidated for purposes of
trial and also on this appeal.
Respondents Oncken and Sage, together with a third person not a party to this litigation,
owned all of the issued and outstanding corporate stock of Nevada Broadcasting Company,
Inc., a Nevada corporation, which operated a radio broadcasting station in Las Vegas,
Nevada. By written agreement of purchase and sale dated May 1, 1957 appellants agreed to
purchase all of the stock owned by each of the respondents and, upon the failure of appellants
to pay for the same within the time provided in the agreement, each respondent separately
brought suit for the sum of $2,250. The answers filed by appellants in each of the two actions
denied the indebtedness and, by way of affirmative defense, pleaded that, by reason of a
breach by each seller of a warranty contained in the contract, appellants had been
damaged in the sum of $6,500.
denied the indebtedness and, by way of affirmative defense, pleaded that, by reason of a
breach by each seller of a warranty contained in the contract, appellants had been damaged in
the sum of $6,500. In addition to this affirmative defense, appellants also claimed certain
offsets due either under the contract or a letter executed by the sellers in connection
therewith.
The trial court entered a judgment in favor of Oncken as seller in the sum of $1,783.26
together with interest and costs and for an attorney's fee. An identical judgment was entered
in favor of Sage in the action brought by him.
The principal amount of the judgment entered in favor of each seller was the amount
sought to be recovered by each from appellants as the agreed purchase price of the stock,
stated in the agreement, reduced by the amount of certain offsets claimed by the purchasers
and allowed by the court.
This consolidated appeal is taken from each of those two identical judgments against
appellants and in favor of respondents Oncken and Sage, respectively. As the amount of the
offsets accorded the purchasers against the agreed purchase price of the stock is not involved
in this appeal, we are concerned solely with the affirmative defense asserted by appellants to
the effect that, by reason of a breach by each seller of a warranty contained in the contract,
appellants were damaged in an amount in excess of the amount sought by each seller as the
purchase price of his stock. More specifically the purchasers sought to establish before the
trial court that certain financial statements of the radio broadcasting corporation forming part
of the written agreement between the parties, did not fairly present the financial condition of
said corporation and had not been prepared in accordance with generally accepted
accounting principles as stated in the agreement. In such agreement respondents as sellers
had represented and warranted that the balance sheet of the corporation as of March 31, 1957
and the profit and loss statements for the years ending March 31, 1956 and March 31, 1957,
all of which were part of the agreement, correctly and fairly represented the financial
condition of the corporation at the date of said balance sheet and the results of its
operations for said years.
were part of the agreement, correctly and fairly represented the financial condition of the
corporation at the date of said balance sheet and the results of its operations for said years.
Further, the agreement provided that all such financial statements have been prepared in
accordance with generally accepted accounting principles.
In this connection appellants, as purchasers, maintained that three accounts due the
broadcasting company from Las Vegas concerns totaling $5,268.34 had been carried in a
record of accounts receivable dated about April 22, 1957 and prepared by the corporation's
bookkeeper, and that under generally accepted accounting principles each of said accounts
should not have been so treated and should have been written off the books of the corporation
as bad debts because each was, in fact, an uncollectible account.
The purchasers tendered evidence in support of this affirmative defense, which included
the testimony of C. E. McLaughlin, one of the purchasing group, who had been a practicing
certified public accountant in another state for many years prior to the corporate stock
transaction which is the subject matter of this appeal. McLaughlin testified that, prior to
entering into the agreement, he was familiar with the accounting procedures followed by
Rudd in preparing the March 31, 1957 financial statement, but that his knowledge of the
accounts receivable was confined to what appeared in the general ledger, showing totals only.
Other purchasers in their testimony also claimed lack of knowledge of individual accounts
receivable.
The sellers maintained that they had not breached the warranty contained in the agreement,
and that the factual status relating to each such account was such as to justify its inclusion in
the list of accounts receivable in accordance with generally accepted accounting principles.
They introduced evidence in support of such contention and also that the purchasers had been
informed concerning the collectibility of each of the accounts under discussion, as well as the
accounting practices followed in the preparation of the financial statements prior to
entering into the written agreement, and that the purchasers had suffered no damage.
practices followed in the preparation of the financial statements prior to entering into the
written agreement, and that the purchasers had suffered no damage.
Merl Sage, who had been manager of this radio broadcasting station business, and one of
the sellers herein, and Mrs. Leona Mitchell, bookkeeper, both testified concerning the
examination into the financial condition of the corporation which had been made by the then
prospective purchasers prior to the signing of the contract of purchase of May 1, 1957. Sage
testified concerning his discussion with the purchasers of the accounts receivable and of their
checking into the collectibility of certain of the same as early as March 1957, and that the list
of such accounts, hereinafter referred to, prepared by the bookkeeper, had been asked for by
McLaughlin, one of the prospective purchasers. The testimony of the buyers disputed much
of this evidence, particularly as it related to their knowledge of the collectibility of the
accounts receivable of the corporation.
Upon this conflicting evidence the trial court found that, on entering into the contract, the
buyers had full and complete knowledge of the affairs of the broadcasting company and its
financial condition and the information contained in its books and records of account, and
that no misrepresentations were made by either of the respective sellers to the buyers to
induce the buyers to enter into such contract.
Included in the evidence was the list of accounts receivable above referred to, a copy of
which had been handed to purchasers about April 24, 1957, according to the testimony of the
corporation's bookkeeper and secretary who had prepared them. This list, which included the
three accounts under discussion, consisted of a total of more than 90 accounts, setting forth
the name and address and the total amount of each account, and the balance of the account as
of December 31 (1956). It also showed any sums paid on each account during the months of
January, February and March (1957). In addition, under a remarks column of such
tabulation, there was a brief statement characterizing the accounts' status as see Merl [Merl
Sage], to be written off," "out of business," "current," pertaining to the great majority of
the individual accounts.
written off, out of business, current, pertaining to the great majority of the individual
accounts. The contract between the parties credited a total agreed amount to the purchasers as
an allowance for doubtful accounts. However, such allowance was applied to accounts other
than the three particular accounts now under consideration. As to these three accounts, which
were the three largest carried in the list of accounts receivable, there appear in the
compilation of accounts receivable, just mentioned, statements of the following import
relating to the status of each of them: (1) referring to a debtor advertising agency account,
stated that one of its principals who had been with such agency when the indebtedness had
been incurred, was presently associated with another individual in a new advertising agency;
(2) to see the owner of the particular debtor club, naming him; (3) Gov't. Padlocked A/C.
Failure to pay taxes. Check with Merl for latest status.
The sellers called Jack Rudd as a witness at the trial. He was the certified public
accountant, practicing in Las Vegas, who had prepared the financial statement of the
broadcasting company dated March 31, 1957 charged by the purchasers not to have been
prepared in accordance with generally accepted accounting principles. This accountant
testified that his firm had not been retained to perform an audit, but had prepared the
statement from the ledger of the corporation. He also testified that he had first met
McLaughlin about February or March of 1957, before he prepared the financial statement just
mentioned, and had discussed the preparation of the March 31 financial statement with him
and also with Von Hofen. This particular financial statement became an exhibit on the
contract of purchase, and a copy was also furnished to the Federal Communications
Commission in connection with the transfer of the control of the station and its license to
purchasers. His testimony also referred to a telephone conversation which he had with
McLaughlin, prior to the signing of the contract, in which he discussed with McLaughlin the
collectibility of certain of the accounts receivable.
[Headnotes 1, 2]
In order for appellants to have sustained their affirmative defense of breach of warranty in
the trial court it was, of course, necessary that they establish that generally accepted
accounting principles had not been followed in the preparation of the particular financial
statements. McLaughlin testified that he was familiar with the accounting methods and
procedures followed by Rudd in the preparation of the statements. No objection was made to
such procedures until several months after the signing of the contract when the buyers
notified the sellers of their refusal to pay the agreed purchase price for the stock. Any
evidence before the trial court tending to show a failure to follow generally accepted
accounting principles would necessarily be found in the testimony of the three certified public
accountants. They were McLaughlin, Clifford E. Roop, and Rudd, all of whom undertook to
testify as expert witnesses. Each was asked hypothetical questions pertaining to the inclusion,
under generally accepted accounting principles, of each of the three accounts as a current
account receivable. Each such hypothetical question had as one of its elements an assumed
knowledge on the part of the accountant of the existence of tax liens filed against the
particular debtor. With this presupposed element of knowledge of tax liens having been filed
against the person owing the money interjected into each hypothetical question, each expert
witness testified in effect that, under acceptable accounting principles, the account would not
have been carried as a current account receivable as of May 1, 1957. However, Rudd, who
prepared the statement under consideration, testified that he had prepared it from material in
the corporation's general ledger. There is nothing in the record indicating that such source
from which Rudd prepared the financial statement disclosed the existence of any tax liens,
and there is a complete lack of evidence that Rudd had any knowledge of the liens at the time
that he prepared the statement. Likewise, we find no evidence in the record that generally
accepted accounting principles required Rudd to go outside and beyond the material
contained in the general ledger for the purpose of determining the existence of any tax
liens.
the material contained in the general ledger for the purpose of determining the existence of
any tax liens. This being true, we find a failure of proof as to any contended noncompliance
with the asserted warranty. Accordingly, the buyers having failed to introduce evidence
showing a breach of the asserted warranty, there was a failure on their part to establish such
affirmative defense to payment of the purchase price of the stock; and the findings and
judgment of the trial court in favor of each respondent, supported by substantial evidence,
will not be disturbed. Goldsworthy v. Johnson, 45 Nev. 355, 363; 204 P. 505, 507. Judgment
in favor of each respondent affirmed.
McNamee, C. J., and Badt, J. concur.
____________
76 Nev. 239, 239 (1960) Conforte v. Hanna
JOSEPH CONFORTE, Also Known as JOE CONTE, Petitioner, v. THE HONORABLE
RICHARD R. HANNA, Judge of the First Judicial District Court of Nevada, in and for the
County of Storey; CECIL J. MORRISON, Sheriff of Storey County; URSULA MacHENRY,
County Clerk of Storey County; ROBERT H. MOORE, District Attorney of Storey County,
Respondents.
No. 4303
April 28, 1960 351 P.2d 612
Original proceeding in certiorari to review action of respondent court in adjudging
petitioner guilty of contempt for failure to comply with an order to abate a nuisance. The
Supreme Court held that where district court had entered judgment permanently enjoining
petitioner from operating a house of prostitution, declaring premises a nuisance and ordering
abatement of the same, based on affidavit of deputy sheriff showing personal service of
summons in action and of temporary restraining order upon petitioner, and thereafter upon
showing that nuisance had not been abated district court issued order to show cause why
petitioner should not be punished for contempt in failing to comply with injunction and
order of abatement, district court had jurisdiction to adjudge petitioner guilty of
contempt, notwithstanding affidavit of petitioner and affidavits and testimony of others
attacking service of summons and temporary restraining order.
showing that nuisance had not been abated district court issued order to show cause why
petitioner should not be punished for contempt in failing to comply with injunction and order
of abatement, district court had jurisdiction to adjudge petitioner guilty of contempt,
notwithstanding affidavit of petitioner and affidavits and testimony of others attacking service
of summons and temporary restraining order.
Petition for writ of certiorari dismissed.
(Petition for writ of certiorari was denied by the Supreme Court of the United States
October 10, 1960.)
Gordon W. Rice, of Reno, for Petitioner.
Roger D. Foley, Attorney General, and Robert H. Moore, District Attorney, Storey
County, for Respondents.
Nuisance.
Where district court entered judgment permanently enjoining petitioner from operating house of
prostitution, declaring premises involved a nuisance and ordering abatement of the same, on affidavit of
deputy sheriff showing personal service of summons in action and temporary restraining order upon
petitioner, and thereafter upon showing that nuisance had not been abated, issued order directing
petitioner to show cause why he should not be punished for contempt, district court's finding that
affidavits of petitioner and others and oral testimony of process server were not sufficient evidence to
overcome the presumption of validity of the affidavit of service of summons was proper, and district
court had jurisdiction to adjudge petitioner guilty of contempt.
OPINION
Per Curiam:
Petition for writ of certiorari to review action of respondent court in adjudging petitioner
guilty of contempt for failure to comply with an order to abate a nuisance.
In 1957 the District Court of the First Judicial District in and for the county of Storey
entered a judgment permanently enjoining the petitioner herein from operating a house of
prostitution, declaring the premises involved a nuisance, and ordering abatement of the
same.
involved a nuisance, and ordering abatement of the same. The affidavit of Robert L. Peek, a
deputy sheriff, showed personal service of the summons in said action and of the temporary
restraining order upon petitioner Joseph Conforte in Storey County on November 26, 1956.
Petitioner made no appearance in said action and his default therein was entered.
Thereafter upon a showing that the said nuisance had not been abated and that the said
petitioner was continuing to use said premises as a house of prostitution, the said district
court on February 3, 1960 issued an order directing petitioner to show cause why he should
not be punished for contempt in failing to comply with said injunction and the order of
abatement.
Conforte and his counsel were present at the time and place specified in said
last-mentioned order and by special appearance moved to dismiss the contempt proceedings,
supporting his motion by the affidavits of Conforte, one Salley E. Burgess, apparently one of
the girls on said premises, and said Robert L. Peek. The Conforte and Burgess affidavits
stated that Conforte was not served with summons as shown on the return of summons, the
Conforte affidavit saying that at the stated time he was not in Storey County, and the Burgess
affidavit saying that Conforte was not on said premises on the particular day. The Peek
affidavit stated that at the time of service of summons, service was made on a person then
believed by me to be Joseph Conforte or Joe Conforte. Since said 16th and 26th days of
November, 1956, I have become acquainted with Joseph Conforte, also known as Joe
Conforte, and I am not certain whether I made said service on the person I know now to be
Joseph Conforte, also known as Joe Conforte, or upon some other person who was then in the
premises affected by this litigation.
At the hearing on said motion to dismiss the order to show cause, with Honorable Richard
R. Hanna, District Judge, presiding, in addition to the record of the case from which said
order had issued and the said three affidavits in support of the motion, petitioner called said
Peek as a witness. In open court he testified that in November 1956 he made the affidavit of
service of summons in good faith; that he had gone to the said premises and asked the
man who came to the door if he were Joseph Conforte; that when the man answered
affirmatively he handed him the summons; that now, more than three years later, he
couldn't say one way or the other whether the person served was Conforte. "After these
years I wouldn't know whether Joe Conforte was this man * * *."
November 1956 he made the affidavit of service of summons in good faith; that he had gone
to the said premises and asked the man who came to the door if he were Joseph Conforte; that
when the man answered affirmatively he handed him the summons; that now, more than three
years later, he couldn't say one way or the other whether the person served was Conforte.
After these years I wouldn't know whether Joe Conforte was this man * * *. Based on such
evidence, the motion to dismiss was denied.
Thereupon petitioner and his client refused to participate in any further hearing on the
order to show cause. The court then proceeded to hear evidence in support of the charges
against petitioner and finding them to be true adjudged petitioner guilty of contempt.
A perusal of the record before us discloses that the original judgment enjoining petitioner
was based on proper service of summons thereby giving the court jurisdiction to enter said
judgment. Evidence to impeach said judgment consisted of affidavits made more than three
years later and also the oral testimony of the process server. The nature of this evidence has
already been disclosed. The court apparently was skeptical of all such impeaching evidence
and in denying the motion to dismiss relied upon the original affidavit of personal service.
Certainly this court cannot say that Judge Hanna acted improperly in failing to give
credence to the self-serving affidavit of Conforte, the affidavit of a woman frequenting such
type of premises, and the uncertain affidavit and oral testimony of the process server
attempting to relate facts occurring more than three years before, or that Judge Hanna acted
improperly in failing to hold that the weight of such evidence was sufficient to overcome the
presumption in favor of the validity of the affidavit of service of summons. Chader v.
Wilkins, 226 Iowa 417, 284 N.W. 183; Couch v. International Brotherhood of Teamsters,
Okl., 302 P.2d 117; Jones v. Reser, 61 Okl. 46, 160 P. 58.
The judgment being valid on its face, and the respondent court's determination that the
evidence offered for the purpose of impeaching said judgment was insufficient to
overcome the legal presumption of its validity, we must necessarily hold that the court
had jurisdiction to hear and determine the contempt proceedings.
the purpose of impeaching said judgment was insufficient to overcome the legal presumption
of its validity, we must necessarily hold that the court had jurisdiction to hear and determine
the contempt proceedings.
Petition for writ of certiorari dismissed.
____________
76 Nev. 243, 243 (1960) Zubieta v. Tarner
FRANK ZUBIETA, Appellant, v.
ADA M. TARNER, Respondent.
No. 4204
May 6, 1960 351 P.2d 982
Appeal from the Second Judicial District Court, Washoe County; Clel Georgetta, Judge,
Dept. No. 3.
Statutory action to quiet title to land included in deeds to both plaintiff and defendant, on
theory that plaintiff had acquired title thereto by adverse possession. From judgment of the
trial court for plaintiff, defendant appealed. The Supreme Court, McNamee, C. J., held that
evidence sustained finding of adverse holding by plaintiff, and that payment by plaintiff of
taxes on property for requisite period was a sufficient compliance with statutory requirement
that she pay all taxes of every kind levied or assessed and due against property, although
taxes on entire area in dispute were assessed to each party and each party paid amount so
assessed to him.
Affirmed.
Goldwater, Taber and Hill, of Reno, for Respondent.
1. Adverse Possession.
In statutory action to quiet title to land included in deeds to both plaintiff and defendant on theory of
adverse possession by plaintiff, there was substantial evidence to support trial court's finding that plaintiff
had actual, exclusive and adverse possession of property continuously for more than required period of
time. NRS 40.090 to 40.120.
Under statute providing that to establish title by adverse possession one must have paid all taxes of every
kind levied or assessed and due against property during period of five years next preceding filing of
complaint, the number of times land may have been assessed to and taxes paid by other parties than holder
of land was immaterial, and where strip of land was included in deeds to both plaintiff, who had possession
under claim of title, and defendant, and same property was assessed to both of them and both paid all taxes
levied against property assessed to them, payments by plaintiff were sufficient compliance with statute.
NRS 40.090, subd. 1.
Personal property taxes and water taxes assessed against owner of real property, although a lien upon all
of such owner's real property, are not taxes levied or assessed and due against property within statute
providing that all taxes of every kind levied or assessed and due against property must have been paid by
adverse claimant for given period of time in order to acquire title by adverse possession. NRS 40.090,
subd. 1.
OPINION
This is a statutory action
1
to quiet title to .4 acre of land in Washoe County, Nevada. The
parcel results from overlapping of descriptions in the deeds to respondent and to appellant
and to his predecessors in interest.
Respondent and her husband acquired 9.5 acres of land which embodied said disputed .4
acre from one Wogan in 1915. The metes and bounds description in the deed located the
south and east boundary of the land along the north and west bank of the North Truckee
Irrigation Ditch. The respondent and her husband moved on the land in 1916, at which time a
survey was made and a fence erected along said boundary line on the north and west bank of
said ditch. In 1919 they acquired an adjoining 9.5 acres. From 1916 to the commencement of
this action the property was occupied and used by respondent, her husband, and their lessee in
the operation of a dairy, for grazing and pasturing cattle, for training hunting dogs, and for
raising fish.
____________________

1
The action is brought pursuant to the provisions of NRS 40.090, 40.100, and 40.110. The remedy provided
by these provisions is cumulative and is not exclusive of the remedy which a district court in this state,
exercising equity jurisdiction, may allow. NRS 40.120.
for training hunting dogs, and for raising fish. The fence was still standing and in existence at
the time of the trial.
In 1932 appellant purchased land lying south and east of the North Truckee Irrigation
Ditch. The description in appellant's deed is by lot and block number in the Prater Addition to
Sparks, Nevada. That the description in appellant's deed overlapped the description in
respondent's deed to the extent of said disputed .4 acre was unknown to the parties until a
survey was made in 1956. Prior to this survey appellant asserted no claim to the disputed area
and recognized respondent's right of possession to all land on her side of the fence.
Appellant's chain of title extends back to 1907, some eight years prior to the
commencement of respondent's chain of title.
During the periods of their ownership both appellant and respondent or their privies paid
all taxes assessed against the property described in their deeds with the result that there was a
double assessment and double payment of taxes with respect to said .4 acre.
From the foregoing and other evidence the lower court found that respondent was the
owner of the disputed parcel and entered judgment quieting her title to the same against
appellant. This appeal is from said judgment.
The only issue involved herein is whether respondent had met the statutory requirements
of adverse possession.
Subsection 1 of NRS 40.090 provides: An action may be brought to determine the
adverse claims to and clouds upon title to real property by a person who, by himself, or by
himself and his predecessors in interest, has been in the actual, exclusive and adverse
possession of such property continuously for more than 15 years prior to the filing of the
complaint, claiming to own the same in fee, or by any other freehold estate, against the whole
world, and who has by himself or his predecessors in interest, paid all taxes of every kind
levied or assessed and due against the property during the period of 5 years next preceding the
filing of the complaint. The action shall be commenced by the filing of a verified complaint
averring the matters above enumerated."
action shall be commenced by the filing of a verified complaint averring the matters above
enumerated.
[Headnote 1]
The question of whether or not respondent and those in privity with her had actual,
exclusive and adverse possession of said property continuously for more than 15 years prior
to the filing of the complaint was a question of fact resolved against the appellant by the trial
court. There is substantial evidence to support that court's finding in this regard.
Even if such be true, appellant maintains that respondent did not claim more land than that
which originally she and her husband were legally entitled, and consequently for the required
period of 15 years they did not claim to own the same in fee. This assertion is based on the
testimony of respondent that her intention was to claim only the land that legally belonged to
her and her husband. From other testimony of the respondent it appears, and the trial court so
found, that during the entire period of her possession she claimed all of the land she held in
possession, which was the same land described in her deed and enclosed within her fence.
This assertion of appellant is therefore without merit.
Appellant's chief ground for reversal appears to be his contention that respondent did not
pay all of the taxes levied against the property during the period of five years next preceding
the filing of the complaint.
[Headnote 2]
It is conceded that respondent and her privies paid all the taxes levied against the property
which were assessed to them, but appellant argues that inasmuch as there was double taxation
on the said .4 acre, respondent has not paid the taxes on the .4 acre which were assessed to
appellant and therefore she has not paid all taxes of every kind levied or assessed and due
against the property as required by NRS 40.090.
A similar question was before the California Supreme Court in the case of Cavanaugh v.
Jackson, 99 Cal. 672, 34 P. 509. There in a suit for the recovery of real property, the
defendant set up title by adverse possession for the time prescribed by statute.
the time prescribed by statute. The California statute like the Nevada statute provided that the
party in adverse possession must pay all the taxes which have been levied and assessed upon
such lands. The same land in that case was assessed each year both to plaintiff and defendant
and as a result of such assessments both parties paid the amounts of their respective
assessments. The court affirmed the judgment in favor of defendant and in its majority
opinion said:
As an element entering into the creation of defendant's title, the payment of all taxes
levied upon the land during the five years' term of occupation is necessary, but it was never
intended by the lawmaking power that he should pay the taxes for any stated year more than
once. Having had the land assessed to him, and having paid the taxes levied thereon, we think
he has fulfilled the conditions of the statute, and that it is immaterial as to the number of
times the land may have been assessed to, and the taxes paid by, other parties. * * * Illinois
has a provision of law quite similar to the one under present investigation, and it is there held
(Bolden v. Sherman, 101 Ill. 489) that, in case of double payment of the taxes for any one
year, priority of payment prevails. * * * But in Brown v. Clark, 89 Cal. 196, 26 Pac.Rep. 801,
this court declined to follow that rule, and neither are we, in the present case, willing to hold
that priority of payment by the true owner of itself nullifies the time which has actually run,
and starts anew the statute. We see no great necessity for the enactment of the provision in the
first instance. If for the purpose of giving notice to the true owner that, perchance, an adverse
claimant has appeared upon the scene, his payment of the taxes as notice of that fact is
entirely insignificant when compared to the circumstance of his open and notorious
possession of the land. Whatever may be the object and purpose of the law, it should receive
a reasonable construction, and to hold that priority of payment by the true owner of itself
defeats the occupant's plea of the statute of limitations would be an unreasonable
construction. If such were the law, upon the first day that taxes became due and payable it
would result in a scramble at, or a race to, the tax collector's office by the respective
parties to secure priority of payment.
it would result in a scramble at, or a race to, the tax collector's office by the respective parties
to secure priority of payment. The destruction of old titles and the creation of new ones would
thus be dependent upon the strongest man or fleetest horse. Accord: Owsley v. Matson, 156
Cal. 401, 104 P. 983; Cummings v. Laughlin, 173 Cal. 561, 160 P. 833; Pereira Farms
Corporation v. Simas, 69 Cal.App. 159, 230 P. 976; Bell v. Germain, 12 Cal.App. 375, 107 P.
630; Kendrick v. Klein, 65 Cal.App.2d 491, 150 P.2d 955; Hobson v. Miller, 64 N.M. 215,
326 P.2d 1095.
There has been some criticism of the decision in the Cavanaugh case (Commercial Nat.
Bank v. Schlitz, 6 Cal.App. 174, 91 P. 750; Carpenter v. Lewis, 119 Cal. 18, 50 P. 925) but it
is now settled law in California, the conflict that existed in prior decisions having been
resolved in Owsley v. Matson, supra, which held that the adverse claimant's compliance with
the applicable statute depends only upon a showing that he paid the taxes for the years in
question, and that a prior or subsequent payment by the legal owner is of no consequence.
We are in accord with the decisions in the Cavanaugh and Owsley cases. It must be noted,
however, that these two cases as well as the present case involved a double assessment as
well as a double payment. We express no opinion at this time whether the holdings in those
cases, insofar as the priority rule of payment is concerned, would be applicable to cases of a
single assessment with double payment of taxes. See 20 Calif. L. Rev. 436-438 (1931-1932).
[Headnote 3]
Appellant further contends that because NRS 40.090 required respondent to have paid all
taxes of every kind levied or assessed and due against the property during the five-year
period, and since the evidence showed that during this period personal property taxes and
certain water taxes were assessed against appellant and not paid by respondent and that such
taxes became a lien against appellant's real property, such personal property taxes and
water taxes were "levied or assessed and due against the property."
against appellant's real property, such personal property taxes and water taxes were levied or
assessed and due against the property. However, we reject the contention that the statutory
requirement that the respondent pay all taxes of every kind levied or assessed and due against
the property includes the taxes on appellant's personal property and the water tax assessed for
the use of water on other property of appellant. Such personal property and water taxes were
not levied or assessed against the real property. That they became a lien upon all of
appellant's real property amounts to nothing more than providing a better or surer method of
collection.
Judgment affirmed.
____________
76 Nev. 249, 249 (1960) Heidenreich v. District Court
HENRY E. HEIDENREICH and MINNIE E. HEIDENREICH, His Wife, Petitioners, v. THE
SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the
County of Washoe, and the HONORABLE CLEL GEORGETTA, District Judge,
Respondents.
No. 4305
May 13, 1960 352 P.2d 249
Original petition for writ of certiorari to review order of District Court, in proceeding to
condemn land for highway purposes, awarding immediate possession of premises in which
petitioners owned an interest, without bond, upon pledge of public faith and credit of the
state. The Supreme Court, Badt, J., held that pledge of public faith and credit of state was
enforcible against the state by the court determining the damages in condemnation action and,
if necessary, issuing mandate that they be paid, and thus the order did not amount to a
taking without just compensation being secured.
paid, and thus the order did not amount to a taking without just compensation being secured.
Writ denied.
Ernest S. Brown and Jack I. McAuliffe, of Reno, for Petitioners.
Attorneys General, for Respondents.
1. Eminent Domain.
Order of district court, in proceedings to condemn land for highway purposes, awarding department of
highways immediate possession of premises, without bond, upon pledge of public faith and credit of the
state, was not a taking of the land without just compensation being secured, in view of fact that the pledge
of public faith and credit was enforcible against the state in the event the state should abandon the
condemnation by court in the condemnation action by determining damages for the possession and entering
judgment which could be enforced by mandamus in the event of state controller's refusal to issue his
warrant upon the state treasurer. Const. art. 1, 8; art. 4, 19; NRS 37.009 et seq., 37.080-37.120,
37.100, subds. 1-7, 37.180 and subd. 2, 408.970 and subd. 4, 408.975.
2. Eminent Domain.
A state which has instituted and voluntarily made itself party to a condemnation proceeding cannot
deprive the owner of land being condemned of compensation by dismissal after possession has been taken.
Const. art. 1, 8; art. 4, 19; NRS 37.009 et seq., 37.100, subds. 1-7, 37.120, 37.180, and subd. 2,
37.080-37.120, 408.970 and subd. 4, 408.975.
3. States.
Constitutional provision that no money shall be drawn from state treasury except in consequences of
appropriations made by law would not bar the protection of citizens against abuse of power of eminent
domain, and would not prohibit state controller from issuing his warrant to pay damages assessed by court
in proceedings for condemnation of land for highway purposes. Const. art. 1, 8; art. 4, 19; NRS
37.009 et seq., 37.100, subds. 1-7, 37.120, 37.180, and subd. 2, 37.080-37.120, 408.970 and subd. 4,
408.975.
4. Eminent Domain.
District Court, in awarding department of highways immediate possession of land condemned for
highway purposes upon the faith and credit of the state without first determining damages occasioned
thereby to owners of land, did not act in excess of its jurisdiction, as requirement for first finding and
determining damages is only for the purpose of determining amount of bond to be fixed by court. Const.
art. 1, 8; art. 4, 19; NRS 37.009 et seq.,
NRS 37.009 et seq., 37.100, subds. 1-7, 37.120, 37.180, and subd. 2, 37.080-37.120, 408.970 and subd.
4, 408.975.
OPINION
Petitioners seek a writ of certiorari to review the action of the respondent district court in
entering an order for the immediate occupancy of the premises in which petitioners own an
interest, in a proceeding in eminent domain. Such proceeding was commenced by the State of
Nevada on relation of its Department of Highways seeking to condemn the land for highway
purposes. The order of immediate occupancy was supported by the pledge of the public faith
and credit of the State of Nevada for the payment of damages, in lieu of bond.
The main question of law presented is whether the order, based upon such pledge, is
sufficient to satisfy the requirement of Article 1, section 8, of the Nevada constitution,
reading as follows: nor shall private property be taken for public use without just
compensation having been first made, or secured * * *.
It is the contention of petitioners that the mere pledge of the full faith and credit of the
state is not such security as contemplated by the constitution, in that there is no adequate
provision for enforcing the pledge.
To substantiate the contention that no adequate provision has been made for enforcing the
pledge, petitioners assert (1) that it cannot be enforced by writ of execution (State ex rel.
Department of Highways v. Olsen, 75 Nev. 75, 334 P.2d 847); (2) that it cannot be enforced
by mandamus against the state treasurer or state controller to compel the payment of
unliquidated damages (State ex rel. Davis v. Eggers, 29 Nev. 469, 91 P. 819, 16 L.R.A., N.S,
630); (3) nor can it be enforced by an action against the state in absence of its waiver of its
sovereign immunity from suit. Determination of these questions requires an examination of
the statutes involved.
Provisions concerning the exercise of the right of eminent domain are contained in NRS,
chapter 37.
eminent domain are contained in NRS, chapter 37. Provisions for obtaining an order
permitting occupancy pending entry of judgment are for the most part contained in NRS
37.100, although other sections of the chapter bear directly upon the matter under
consideration. Subsection 1 of section 37.100 permits the plaintiff to move for an order
permitting such occupancy. Subsection 2 requires the court or judge to take proof and to grant
or refuse the motion according to the equity of the case and the relative damages which may
accrue to the parties. Subsection 3 requires the filing of a bond in a penal sum to be fixed by
the court conditioned to pay the adjudged value of the premises, all damages in case the
property is condemned, and to pay all damages arising from occupation before judgment in
case the premises are not condemned * * *. Subsection 4 permits the deposit of money in
court in lieu of bond and provides for manner of withdrawal thereof by the defendant, etc.
Subsection 5 provides that the amount fixed for the bond or the deposit shall be only for the
purposes of the motion for an order of immediate occupancy and shall not be admissible in
evidence on final hearing. Subsection 6 permits the court to restrain the defendant from
interfering with the plaintiff's occupancy. Subsection 7 reads: The provisions of this section
requiring the execution and filing of a bond shall not apply in any action or proceeding in
which the State of Nevada is the plaintiff, but the public faith and credit of the State of
Nevada is hereby pledged as security in lieu of the bond.
NRS 37.180 provides that the plaintiff may abandon the condemnation proceedings upon
notice and motion, upon which judgment may be entered dismissing the proceeding and
awarding the defendants their costs and disbursements, including expenses incurred in
preparing for trial and reasonable attorney fees. Subsection 2 of this section reads: If the
plaintiff has been placed in possession of the premises under the provisions of NRS 37.100 to
37.170, inclusive, the defendant is entitled to all damages arising from such occupancy.
[Headnote 1]
Petitioners assert that section 37.180 presents no procedure to determine the amount of
damages to which they are entitled, or how they may receive or recover it. We may assume
as contended by petitioners, that mandamus against the state controller to issue his warrant in
any sum upon such an unliquidated claim would not lie. However, we see no reason why the
amount of petitioners' damages, on abandonment by the state of its condemnation proceeding
and surrender of the occupied premises, should not be determined by the same court in the
same action, resulting in a judgment for a precise amount in favor of petitioners, which would
be recognized by the state controller by the issuance of his warrant upon the state treasurer,
and which would, in the event of the state controller's refusal, be enforced by mandamus.
State ex rel. Decker v. Yelle, 191 Wash. 397, 71 P.2d 379; State ex rel. Peel v. Clausen, 94
Wash. 166, 162 P. 1. NRS, chapter 37, is replete with provisions indicating that all damages
accruing to petitioners by reason of the condemnation shall be determined by the court in that
same proceeding.
1

In Guaranty Loan & Trust Co. v. Helena Improv. Dist. No. 1, 148 Ark. 56, 228 S.W. 1045,
the court said: [A]n order permitting the appellee as plaintiff to voluntarily dismiss the
action * * * was erroneous.
____________________

1
Section 37.009, in defining the terms used in the chapter, says that judgment means the judgment
determining the right to condemn property and fixing the amount of compensation to be paid by the plaintiff.
Section 37.080 provides for the appearance of any persons having an interest in the damages for the taking.
Section 37.090 defines the power of the court or judge in the proceeding, among other things, to hear and
determine all claims to the damages to the property sought to be condemned. Section 37.100 permits the
pledging by the plaintiff of the public faith and credit of the state as security in lieu of the bond, which is
conditioned, among other things, to pay all damages arising from occupation before judgment in case the
premises are not condemned * * *. Section 37.110 requires the court, jury, commissioners, or master to take
testimony, ascertain and assess, not only the value of the property sought to be condemned, but the damages
resulting from the severance or damages resulting even if no part of the property is taken. Section 37.120 defines
when such damages are deemed to accrue. Section 37.180, as above noted, provides in general terms that if the
plaintiff has been placed in possession, the defendant is entitled to all damages arising from such occupancy.
dismiss the action * * * was erroneous. Under the statute referred to, the party seeking the
condemnation of property cannot withdraw from the proceedings after having taken
advantage of the process of the court to obtain possession of the land. The owner had, on
demand, the right to a trial for the purpose of recovering damages, and this right is given in
that action without having to institute a separate action for that purpose.
It is therefore clearly evident to us that, despite absence of any express provision in NRS
37.180 as to the precise procedure under which the condemnees might call up for hearing and
determination the amount of damages suffered by them by reason of the occupancy of the
condemnor, in the event of any abandonment of the proceedings by the condemnor, the
setting of this issue for hearing could be compelled by the court.
With the availability then of liquidating the damages of petitioners and the consequent
availability of mandamus if the state controller should refuse to recognize the solemn
judgment of the court, we are satisfied that petitioners' main contention is without merit. Nor
should we fail to remark that even if a bond were given, there would still have to be an
ascertainment of the damages, if any, in the event condemnation should ultimately be denied,
or in the event the proceedings should be abandoned.
[Headnote 2]
None of these procedures would necessitate an action against the state and so the question
of the sovereign immunity from suit need not be considered.
2
This conclusion is further
reinforced by the fact that when the state has initiated and voluntarily made itself a party, not
only to the condemnation it sought but to the fixing of the damages resulting therefrom, it has
thus voluntarily made itself plaintiff as to one phase of the litigation and defendant as to
another phase and cannot be heard to assert that it may remain in court in the one capacity
but withdraw in the other.
____________________

2
But see NRS 408.975 permitting the filing of a claim for damages with the state highway department, the
payment thereof, if approved, out of the state highway fund, and permitting any person aggrieved by an adverse
determination to commence an action for the recovery thereof.
heard to assert that it may remain in court in the one capacity but withdraw in the other.
Moyle v. Salt Lake City, 111 Utah 201, 176 P.2d 882, 887. The court there said, citing
authorities, Under general principles, as well as under our statute, the condemnor cannot
deprive the owner of compensation by dismissal after possession has been taken. See also
Guaranty Loan & Trust Co. v. Helena Improv. Dist. No. 1, supra.
[Headnote 3]
Petitioners assert however that they are still without adequate remedy; that the state
controller would be prohibited from issuing his warrant to pay the damages awarded by the
court by reason of the provisions of Article 4, section 19, of the state constitution, reading as
follows: No money shall be drawn from the treasury but in consequence of appropriations
made by law. State ex rel. Davis v. Eggers, 29 Nev. 469, 91 P. 819, 820, 16 L.R.A., N.S.,
630, upon which reliance is placed in support of this contention, is not in point. It is true that
this court denied mandamus in that case so far as concerned the payment of the unliquidated
and unlimited traveling expenses of the chairman of the State Industrial and Publicity
Commission created by the legislature, but it did direct the issuance of a writ of mandate
compelling the state controller to draw his warrant upon the state treasurer in favor of the
plaintiff for his salary.
3
In State ex rel. Decker v. Yelle, 191 Wash. 397, 71 P.2d 379, 380,
the Supreme Court of Washington found no inconsistency between the constitutional
restrictions against withdrawal of moneys from the treasury other than by appropriation made
by law, on the one hand, and that provision, on the other hand, "essential to the existence of
free government," that private property may not be appropriated for public use without
just compensation.
____________________

3
We do not deal at length with the opinion in State v. Eggers, but since it deals with Article 4, section 19, of
the constitution prohibiting money to be drawn from the treasury, but in consequence of appropriations made
by law, and since it contains expressions to the effect that all appropriations must be within the legislative
will, we refer to NRS 408.970 under whose provisions the state highway department is authorized to acquire
privately owned property necessary for highway construction and to exercise, on behalf of the state, the power of
eminent domain for the purpose. Subsection 4 provides that the cost thereof shall be paid out of the state
highway fund.
essential to the existence of free government, that private property may not be appropriated
for public use without just compensation. We agree with that court's conclusion that, while
respecting the reservation to the legislature of the exclusive power of deciding how, when,
and for what purpose public funds should be used by governmental agencies in carrying on
the state's business, it was never intended that such provision should be a bar to the protection
of the citizens against the abuse or misuse of the power of eminent domain, an inherent
attribute of the state's sovereignty, by appropriating the citizen's property and then remitting
him to succeeding legislatures for compensation.
[Headnote 4]
Petitioners further contend that the respondent court acted in excess of its jurisdiction in
granting the state the right to immediate entry and possession without first finding and
determining the damages occasioned thereby to petitioners, and that in such respect the court
disregarded the requirements of NRS 37.100, subsection 2. This requirement however is only
for the purpose of determining the amount of bond to be fixed by the court, and is not
applicable where the public faith and credit of the state are pledged as security in lieu of
bond.
The petition for certiorari is denied and the proceedings are dismissed.
____________
76 Nev. 257, 257 (1960) Nelson v. Sierra Construction Corp.
HERBERT E. NELSON and WALLACE R. NELSON, Appellants, v. SIERRA
CONSTRUCTION CORPORATION, a Nevada Corporation, Respondent.
Nos. 4262 and 4263
May 16, 1960 352 P.2d 125
Appeals from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
Department No. 2.
Proceedings wherein motions were made to dissolve attachments. The trial court refused
to dissolve attachments and movants appealed. The Supreme Court, McNamee, C. J., held
that where reviewing court did not know what evidence was considered by lower court,
reviewing court would assume that lower court's conclusion was supported by competent
evidence.
Affirmed on both appeals.
[Reporter's note: Petition for writ of certiorari was denied by the Supreme Court of the United States
November 7, 1960.]
Morton Galane, of Las Vegas, for Appellants.
Morse, Graves and Compton and James H. Phillips, of Las Vegas, for Respondent.
Appeal and Error.
Where reviewing court did not know what evidence was considered by lower court prior to issuing
order refusing to dissolve an attachment, reviewing court would assume that lower court's conclusion was
supported by competent evidence. Dstrict Court Rules, rule 20.
OPINION
Two cases of the same title have been consolidated for oral argument on appeal. The
questions involved pertain to each case except as hereinafter noted.
Appeal is from an order refusing to dissolve an attachment.
In case number 4262 the court had personal jurisdiction over appellants by reason of their
appearance in said action.
said action. They made the following three motions in the court below:
1. Motion to quash the levy of a writ of attachment, filed October 5, 1959;
2. Motion to dissolve, vacate, and discharge the attachment and garnishment purportedly
levied by service on Nevada Savings and Loan Association on April 15, 1959, filed October
22, 1959;
3. Motion to dissolve, vacate, and discharge the attachment and garnishment purportedly
levied by service on Nevada Savings and Loan Association on October 19, 1959, filed
October 22, 1959.
The grounds for motion number 1 were (a) the sheriff failed to serve upon the Nevada
Savings and Loan Association a notice that the debts owing by it to appellants or the credits
or other personal property in possession or under its control belonging to the defendants were
attached in pursuance of said writ as required by subsection 4 of NRS 31.060; (b) the sheriff
failed to serve upon the Nevada Savings and Loan Association a notice stating the stock or
interest of the defendants was attached in pursuance of the writ of attachment as required by
subsection 3 of NRS 31.060; (c) the sheriff failed to actually seize stock certificates, and the
certificates had not been surrendered to Nevada Savings and Loan Association and their
transfer by the holder had not been enjoined as required by NRS 79.170; (d) the contract
whereby Nevada Savings and Loan Association would pay cash for the stock of the
defendants was not attachable.
The grounds for motion number 2 were (a) the amount payable to appellants by Nevada
Savings and Loan Association under contract contemplates a cash transaction not a
debtor-creditor relationship and was not subject to attachment and garnishment; (b) the
sheriff in serving the writ of attachment on Nevada Savings and Loan Association failed to
accompany it with any notice that the debts owing by it to the appellants or the credits or
other personal property in its possession or under its control belonging to the defendants were
attached in pursuance of said writ of attachment; {c) the sheriff served a writ of
attachment to Nevada Savings and Loan Association but failed to accompany it with any
notice stating that the stock or interest of the defendants was attached in pursuance of
said writ of attachment; {d) the sheriff failed to actually seize any of the stock certificates
and the certificates had not been surrendered to the Nevada Savings and Loan
Association and their transfer by the holder have not been enjoined; {e) Marilynn D.
attached in pursuance of said writ of attachment; (c) the sheriff served a writ of attachment to
Nevada Savings and Loan Association but failed to accompany it with any notice stating that
the stock or interest of the defendants was attached in pursuance of said writ of attachment;
(d) the sheriff failed to actually seize any of the stock certificates and the certificates had not
been surrendered to the Nevada Savings and Loan Association and their transfer by the holder
have not been enjoined; (e) Marilynn D. Nelson and Mary Virginia Nelson were not joined as
parties defendant in the main action and the records of the Nevada Savings and Loan
Association indicate that they have an interest as joint tenants in the stock purportedly levied
upon.
The grounds for motion number 3 were (a) the amount payable by Nevada Savings and
Loan Association under contract contemplates a cash transaction not a debtor-creditor
relationship and is not subject to attachment and garnishment; (b) the sheriff failed to actually
seize any of the stock certificates and the certificates had not been surrendered to Nevada
Savings and Loan Association and their transfer by the holder had not been enjoined; (c)
Marilynn D. Nelson and Mary Virginia Nelson were not joined as parties defendant in the
main action and the records of the Nevada Savings and Loan Association indicate that they
have an interest as joint tenants in the stock purportedly levied upon.
In case number 4263 appellants were not personally served in this action and entered no
general appearance therein. By special appearance they filed a motion to dissolve, vacate, and
discharge the attachment and garnishment purportedly levied by service on Nevada Savings
and Loan Association on October 19, 1959.
The grounds for the motion in this case were (a) the amount payable to appellants by
Nevada Savings and Loan Association under contract contemplated a cash transaction not a
debtor-creditor relationship and is not subject to attachment or garnishment; (b) the sheriff
failed to actually seize any of the stock certificates and the certificates had not been
surrendered to Nevada Savings and Loan Association and their transfer by the holder had
not been enjoined; {c) Marilynn D.
Savings and Loan Association and their transfer by the holder had not been enjoined; (c)
Marilynn D. Nelson and Mary Virginia Nelson were not joined as parties defendant in the
main action and the records of the Nevada Savings and Loan Association indicate that they
have an interest as joint tenants in the stock purportedly levied upon.
The three motions in case number 4262 and the one motion in case number 4263 were
consolidated for argument in the lower court and all four motions were denied on October 26,
1959 and a written order to this effect was filed in the cases. Appeal in each case is from the
order refusing to dissolve an attachment made and entered on the 26th day of October 1959.
The statutory grounds for discharge of attachment are found in NRS 31.200 which reads as
follows:
1. The defendant may also, at any time before trial, apply upon motion, upon reasonable
notice to the plaintiff, to the court in which the action is brought or to the judge thereof, for a
discharge of the attachment on the following grounds:
(a) That the writ was improperly issued.
(b) That the property levied upon is exempt from execution.
(c) That the levy is excessive.
2. If the court or the judge thereof on the hearing of such motion shall find that any of the
grounds stated in subsection 1 exist, the attachment and levy thereof shall be discharged. If
the motion is based upon paragraph (c) of subsection 1 only, and the same is found to exist,
the discharge of attachment shall be only as to the excess.
It is apparent from the foregoing that none of the grounds stated in appellants' several
motions for discharge of attachment was one of the statutory grounds specified in NRS
31.200. Each of the grounds upon which the motions were based pertains to the improper
levy of the writ as distinguished from an improper issue thereof.
The record on appeal does not contain any of the proceedings which took place at the
hearing on said motions other than the oral decision of the court wherein the learned judge
thereof stated:
I think the argument is highly technical. I think the transaction by the letters is a closed
transaction. I think now the stock belongs to the Nevada Savings and Loan Association. I
think they would have a right to transfer that stock on their books whether they had actual
possession of the stock certificate or not.
I think when the Nelsons made that offer to sell the stock to the Nevada Savings and
Loan Association and Nevada Savings and Loan Association has by Resolution on their
minutes accepted it that transaction became closed.
The only difference would be the payment of the money. So, they wrote a check but they
could not pay the money because it was attached; so, inasmuch as it was a closed transaction I
think the money was attachable.
Now, the next question is whether or not the writ of attachment contains a sufficient
allegation as to owing the debt and I think it is a rule you have to comply with the law in
every respect.
The law is highly technical. I think the Association holds the money now that belongs to
the Nelsons.
I cannot see any sufficient grounds to discharge or dissolve the attachment.
Was the writ improperly issued? I don't think so.
Was the property levied upon exempt from execution? There was nothing shown as to an
exemption.
Was the levy excessive? Nothing was shown.
So the motion to quash the levy or writ of attachment and the motion to dissolve and
vacate and discharge the attachment and garnishment purportedly levied by service on
Nevada Savings and Loan Association be denied.
What evidence was considered by the court, if any at all, in support of or in opposition to
the grounds upon which appellants' motions were based does not appear from the record.
from the record. We have only the court's bald statement in said decision, to wit, I cannot see
any sufficient grounds to discharge or dissolve the attachment.
1

Whether it would have been proper for the court below on a motion for discharge of
attachment to grant a discharge on grounds other than the three statutory grounds is a question
unnecessary for us to decide on these appeals. The court refused to grant the motions and
nothing appears in the records on appeal from which this court can determine that error was
committed.
On the oral argument herein, counsel for respondent conceded that the purported levy on
the stock was ineffectual because the stock certificates were not seized by the officer making
the levy or surrendered to Nevada Savings and Loan Association which issued it, or the
holder had not been enjoined, as required by NRS 79.170, but this concession loses
significance in view of the lower court's decision that Nevada Savings and Loan Association
was the owner of the stock and that the purchase price therefor in the hands of said
association at the time of the levy was attachable.
We do not know what evidence was considered by the lower court which resulted in this
conclusion and in the absence thereof we must assume that the lower court's conclusion was
supported by competent evidence. State ex rel. Lyon v. Lyon, 75 Nev. 495, 346 P.2d 709.
The order appealed from is affirmed in each case.
____________________

1
The opening sentence of the quoted oral decision of the district judge indicates that the decision was
rendered immediately following oral argumentand apparently immediately following the reply argument of the
movant. What preceded the argument is left to conjecture. Under Rule 20 of the District Court Rules, regulating
procedure on motions, the moving party reads his moving papers or introduces oral evidence. The party
opposing reads his opposing papers or introduces his oral evidence. The moving party then proceeds in like
manner in rebuttal. Counsel then make their respective arguments. Not only was the hearing of the motions
apparently unreported, but the record is devoid of even the clerk's court minutes. Appellants' designation of
contents of the record on appeal designates the pleadings, the motions, the orders of court, and all minutes of
court on each and every hearing of any matter or motion concerned herein. Respondent made no counter
designation. No minutes appear nor any evidence by way of affidavits or otherwise.
____________
76 Nev. 263, 263 (1960) White Pine Power v. Public Service Commission
WHITE PINE POWER DISTRICT NO. 9, a Municipal Corporation, Appellant, v. PUBLIC
SERVICE COMMISSION OF NEVADA, and Its Members, J. G. ALLARD, NOEL A.
CLARK, and RICHARD G. CAMPBELL; WELLS POWER COMPANY, a Corporation;
WELLS RURAL ELECTRIC COMPANY, a Corporation; ROBERT R. WRIGHT, a
Subscriber for Electric Power Proposed to be Served by the Wells Rural Electric Company;
CHARLES C. READ, a User of Electric Power Served by Wells Power Company; Said
ROBERT R. WRIGHT and CHARLES C. READ Being Made Defendants for Themselves
and All Other Persons Similarly Situated, Respondents.
No. 4306
May 18, 1960 352 P.2d 256
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Motion for injunction and stay of proceedings during pendency of appeal. Action to enjoin
a power company from selling its assets to another electric company, and for certain other
relief. Plaintiff moved to enjoin defendant from consummating the sale in question. The
Supreme Court held that in view of lack of showing of any irreparable injury which plaintiff
might suffer through failure to grant the motion, it would be denied.
Motion denied.
Robert R. Gill, of Ely, Nevada, and Elias Hansen, of Salt Lake City, Utah, for Appellant.
Roger D. Foley, Attorney General, for Respondent Public Service Commission of Nevada
and its members.
Orville R. Wilson, of Elko, for Respondent Wells Power Company.
Vaughn & Hall, of Elko, for Respondents Wells Rural Electric Company, Robert R.
Wright and Charles C. Read.
Appeal and Error.
A motion to enjoin consummation of a sale of assets pending plaintiff's appeal from an order
dismissing its action to enjoin a sale of such assets would be denied where there was no showing of any
irreparable injury which plaintiff might suffer through failure to grant requested motion.
OPINION
Per Curiam:
Appellant commenced an action in the court below seeking to enjoin respondent Wells
Power Company from selling its assets to respondent Wells Rural Electric Company and
praying that the court declare null and void the approval by the respondent Public Service
Commission of Nevada of such sale. The motion of respondents to dismiss the action was
granted on the ground that the complaint failed to state a claim against respondents. Appeal is
pending from the order of dismissal. The present proceeding is a motion by appellant
pursuant to Rule 62(g) NRCP to enjoin respondent Wells Power Company from
consummating the sale of its assets to respondent Wells Rural Electric Company and
enjoining respondents Public Service Commission of Nevada and its members from
transferring to respondent Wells Rural Electric Company the certificate of public convenience
and necessity heretofore issued to Wells Power Company during the pendency of the appeal.
The granting or denial of the present motion lies within the sound discretion of the court.
Nev. Tax Commission v. Mackie, 74 Nev. 273, 330 P.2d 496. This was conceded by
appellant during oral argument.
It has not been pointed out in appellant's points and authorities on this motion nor in its
oral argument any irreparable injury which it might suffer through our failure to grant said
motion. In fact, how appellant could suffer an irreparable injury during the pendency of the
appeal would be difficult to understand in light of the admitted facts that appellant has not
been granted a certificate of public convenience and necessity by the Public Service
Commission of the State of Nevada, nor has it been granted a franchise by the State of
Nevada or the County of Elko, State of Nevada, or the City of Wells, County of Elko, State
of Nevada, to serve any of the residents or inhabitants of that area of Nevada included
within the existing franchise of the Wells Power Company or the certificate of public
convenience and necessity heretofore issued to Wells Power Company and under which
said company is now operating.
has it been granted a franchise by the State of Nevada or the County of Elko, State of Nevada,
or the City of Wells, County of Elko, State of Nevada, to serve any of the residents or
inhabitants of that area of Nevada included within the existing franchise of the Wells Power
Company or the certificate of public convenience and necessity heretofore issued to Wells
Power Company and under which said company is now operating. See Lovelock Merc. Co. v.
Lovelock Irr. Dist., 51 Nev. 179, 272 P. 1.
We do not regard such requested relief as relating to a preservation of the status quo.
Save as a provisional remedy in aid of collection of a money judgment such relief does not
appear to relate to the effectiveness of any judgment we might render. That the effectiveness
of our ultimate judgment might be defeated should we fail to act does not appear at all.
Kassabian v. Jones, 72 Nev. 314, 304 P.2d 962, 963.
Motion denied.
McNamee, C. J., Pike, J., and Bowen, D. J.
Badt, J., being disqualified, the Governor designated Honorable Grant L. Bowen, Judge of
the Second Judicial District, to sit in his stead.
____________
76 Nev. 265, 265 (1960) Kraemer v. Kraemer
MARGARET KRAEMER, aka MARGARET HAHN, Individually, and dba FORTY NINER
MOTEL, Appellant, v. WILLIAM D. KRAEMER, Respondent.
No. 4261
May 20, 1960 352 P.2d 253
Action by husband to recover amount that represented money and value of materials
allegedly furnished by him as loan to wife. The trial court rendered judgment for husband
and wife appealed. The Supreme Court, Pike, J., held that evidence sustained finding that
sums advanced by husband to wife were intended to be and were understood to be a
loan.
husband and wife appealed. The Supreme Court, Pike, J., held that evidence sustained finding
that sums advanced by husband to wife were intended to be and were understood to be a loan.
Judgment affirmed.
Edward G. Marshall, of Las Vegas, for Appellant.
G. William Coulthard and Franklin N. Smith, of Las Vegas, for Respondent.
Under statute providing that husband and wife may make contracts with each other, contract whereby
husband agreed to advance money to wife as a loan with money to be used in improving wife's separate
property was permissible. NRS 123.070.
In action by husband against wife to recover amount that represented money and value of materials
allegedly furnished by him as loan to wife, evidence sustained finding that sums advanced by husband to
wife are intended to be and were understood to be a loan. NRS 123.070.
3. Frauds, Statute of.
Refusal to permit wife several months after conclusion of trial to amend her answer to include affirmative
defense that statute of frauds precluded recovery by husband of amount of alleged loan was not an abuse of
discretion. NRS 123.070.
OPINION
The parties are husband and wife, and this appeal is by the wife from a judgment in favor
of the husband for $43,065.
The amount of the judgment represents the principal amount sought to be recovered by the
husband in his suit against the wife. At the trial he had produced evidence in support of his
claim that it represented money and the value of materials furnished by him as a loan to the
wife. The purpose of the loan was to enable the wife to enlarge and improve motel premises
owned by her before marriage and constituting her separate property.
The wife conceded the receipt of the money and the materials and that they were used to
improve her separate property, but denied any indebtedness to the husband, contending that
the money and materials constituted a gift from him to her. She also disputed the value of the
materials furnished by the husband as being that of $6,050, seeking to prove that they had a
lesser value and contended that as he had furnished no support to her during coverture, certain
sums included in the total amount sought to be recovered by the husband should be deducted
therefrom, in the event that the court should conclude that the money and materials were not a
gift to the wife.
[Headnote 1]
The husband testified that prior to the construction work being performed he and the wife
had agreed that he was to advance the money to her as a loan. A contract of this nature
between the spouses was permissible under provisions of the Nevada law, NRS 123.070.
Although the husband produced no direct corroboration of his testimony relating to the actual
entering into of the asserted oral agreement with his wife, two other witnesses called by him
testified to being present and participating in conversations, with both spouses present, prior
to the commencement of construction work on the motel premises. Each recounted a separate
occasion when, with the wife and the witness both present, the husband had referred to
lending the money to the wife to enable her to have the improvements added to her motel.
There was no evidence that the wife expressed a view contrary to such arrangements on either
occasion. The husband admitted that he had not furnished support for the wife, stating in that
regard, She had the income of the court [motel]. The wife had received money from
property owned by her in another state and also from her mother, as well as rental income
from the motel, in addition to the funds received from respondent during the period under
consideration. She deposited and commingled the funds from these several sources. The
construction costs for the ten units which were added to her motel, and the other
improvements to the motel, were included in the disbursements made by her from such
deposits.
motel, were included in the disbursements made by her from such deposits.
The wife's testimony denied that there had been an agreement between the parties that the
advances by the husband to her constituted a loan, and also denied having participated in the
conversations recounted by other witnesses which tended to show her knowledge or
acquiescence relating to any such agreement. She did not testify and did not offer any other
evidence to the effect that the husband ever made any direct statement to her that the
advances were to be considered a gift from him to her. She did testify, however, that in
connection with discussions between them relating to the contemplated improvements, the
husband had said that he would help me in any way he could. Language of this import was
reiterated by her throughout her testimony.
The parties to this litigation were of mature years when they first became acquainted at the
wife's motel in Las Vegas, Nevada about early September 1955. Two thousand dollars in cash
was received by the wife from the husband in November 1955 prior to their marriage about
January 15, 1956. This initial sum was followed by the delivery of a check for $15,000 from
the husband to the wife in April 1956 and, including a sum transmitted by him to her on
October 23, 1956, a total of some $34,700 of the funds under consideration had been received
by the wife by that date. As indicated, all of these funds were advanced by the husband within
a period of less than a year following the initial advance made by him in November 1955.
There is evidence that the new motel units and certain other improvements had been
completed prior to the final advance made by the husband in the sum of $1,000 by check
dated December 9, 1956. The proceeds of this last-mentioned check were used to pay for
costs of paving in the motel area which, according to the husband, was not within the purview
of the contemplated improvements to the premises.
The wife had purchased the motel premises, which then had some 17 rental units, in 1955
for a purchase price of $120,000.
price of $120,000. Shortly after acquiring the premises she had listed them for sale and after
the improvements here under discussion had been made and a swimming pool had been
added, the premises were listed for sale with an asking price of $185,000.
The trial court, sitting without a jury, tried the issue of whether or not the entire amount
advanced by the husband constituted a loan as contended by the husband or constituted a gift
as claimed by the wife. Although the wife denied any oral agreement between the parties that
the advances from the husband to her constituted a loan and had construed his oral
expressions of wishing to do whatever he could to be of help to her as indicating his intention
to treat the advances as a gift to her, she also placed reliance in a legal presumption asserted
by her as applying to the factual situation relating to the advances. She argued that, in the
absence of a specific agreement to the contrary, the use of the husband's separate property to
improve the wife's separate property created a presumption of a gift from him to her, citing a
decision of this court in Lombardi v. Lombardi, 44 Nev. 314, 195 P. 93. The decision of this
court just referred to held that the expenditure by the husband of his separate funds to
improve the wife's separate property, does not operate to change the title; that, as between
them in the absence of any specific agreement to the contrary, the title to the improvement
follows the land.
The husband did not dispute the proposition of law referred to and relied upon by the wife,
but urged that, as there had been a specific agreement to the contrary between the parties,
namely, that the advances were to be considered loans, the oral agreement between them was
within the recognized exception to the rule asserted by the wife.
[Headnote 2]
Upon this conflicting evidence the trial court entered its written decision in favor of the
husband, stating that he had sufficiently carried the burden of proof and that the sums
advanced by the plaintiff to the defendant were intended to be, and were understood to be
between the parties, a loan."
were intended to be, and were understood to be between the parties, a loan. This written
decision of the court was followed by its findings and judgment in favor of the husband. As
there is substantial evidence supporting the judgment, it must be affirmed. Bloomfield v.
Koval, 72 Nev. 17, 19; 292 P.2d 1073, 1074.
Certain specifications of error by appellant, not already disposed of herein by the
foregoing, require consideration. (1) Appellant refers to the fiduciary relationship existing
between the husband and wife and reviews legal authorities, stating the requirement that any
contract between them be fair and reasonable. We find the substance of the same requirement
stated in the Nevada statute hereinabove referred to pertaining to contracts of this nature
between the spouses. At the close of all the testimony the trial court reviewed at some length
the relationship of the parties and stated, prior to the filing of its written decision and
judgment, That is the finding of this court with no dirty hands on either side. This and other
concurrent expressions of the court negate any failure on the part of the husband to comply
with the requirements of the law based upon the confidence and trust of the marital
relationship, in entering into the agreement with the appellant. The agreement asserted by the
husband was that the funds had been loaned by him to her. The relief sought by him was the
repayment by her of the loan, together with the interest. The trial court entered judgment in
favor of the husband for the principal amount of the loan and refused a judgment for interest,
stating in its written decision as a basis for such denial that there was no proof that the loan
was to bear interest, and in its findings that no rate of interest for the loans had been specified
by the parties.
[Headnote 3]
(2) Appellant also assigns error on the part of the trial court in its denial of appellant's
motion to amend her answer to include the affirmative defense that the statute of frauds
precluded recovery by the husband. This motion to amend was filed on August 24, 1959,
several months after the conclusion of the trial. The denial of the motion to amend was
within the discretion of the trial court.
denial of the motion to amend was within the discretion of the trial court. Ramezzano v.
Avansino, 44 Nev. 72, 80; 189 P. 681, 684.
Judgment affirmed.
Badt, J., and Gregory, D. J., concur.
McNamee, C. J., having disqualified himself, the Governor designated Honorable Frank B.
Gregory, Judge of the First Judicial District Court to sit in his place and stead.
____________
76 Nev. 271, 271 (1960) Riff v. Kowal
GEORGE RIFF and NETTIE RIFF, Appellants, v. JACK KOWAL, aka JOHN KOWAL,
PENNY KOWAL, Respondents.
No. 4224
May 25, 1960 352 P.2d 819
Action by creditors against debtors to recover sum of money lent to debtor and value of
jewelry purchased by debtors from plaintiffs. From judgment of the trial court dismissing the
complaint, plaintiffs appealed. The Supreme Court, Pike, J., held that where cause of action
had become barred by statute of limitations, and thereafter defendants made a part payment,
not accompanied by written promise to pay the remainder, the statute of limitations was not
tolled, and cause of action was barred.
Judgment affirmed.
Robert Cohen, of Las Vegas, for Appellants.
Murray Posin, of Las Vegas, for Respondents.
1. Limitation of Actions.
Where cause of action for money lent to defendants and for value of jewelry purchased by defendants
from plaintiffs had become barred by statute of limitations, and thereafter defendants made a part
payment, not accompanied by a written promise to pay the remainder, the statute of
limitations was not tolled, and the cause of action was barred.
76 Nev. 271, 272 (1960) Riff v. Kowal
defendants made a part payment, not accompanied by a written promise to pay the remainder, the statute of
limitations was not tolled, and the cause of action was barred. NRS 11.190, 11.200, 11.390.
2. Limitation of Actions.
Under statute providing that whenever any payment on principal or interest has been made upon an
existing contract, the limitation shall commence from the time the last payment was made, the phrase
existing contract refers to an existing enforcible contract, and part payment of an amount due does not
extend the period of time within which suit may be brought where the enforcement of the contract has
already been barred by the statute of limitations at the time of the payment. NRS 11.200.
OPINION
Appellants, who were plaintiffs in the trial court, appeal from a judgment of dismissal,
with prejudice, of plaintiffs' complaint. The complaint alleged that about October 1945
defendants had agreed to pay to plaintiffs the sum of $2,777 representing money borrowed
and the value of jewelry then purchased by defendants from plaintiffs. It also alleged that,
although demand had been made for payment, no part of the obligation had been paid except
the sum of $100 paid about August 1958. Plaintiffs sought judgment for the unpaid balance
of $2,677.
Thus the allegations of the complaint disclose that, after the obligation was incurred by the
defendants, nearly 13 years had elapsed before defendants made any payment on account of
the same.
Defendants' motion to dismiss was based upon the ground that the complaint failed to state
a claim upon which relief could be granted. In presenting such motion defendants relied upon
the statute of limitations as barring the enforcement of the indebtedness. Reference was made
to NRS 11.190 as supporting authority. That statute provides that suit must be brought within
four years upon an open account or obligation not founded upon an instrument in writing.
Defendants also cited the decision of this court in Wilcox v. Williams, 5 Nev. 206, as
authority for the proposition that the part payment made by defendants and
unaccompanied by any written acknowledgment or promise to pay the indebtedness
executed by defendants, was not sufficient to toll the statute.
76 Nev. 271, 273 (1960) Riff v. Kowal
proposition that the part payment made by defendants and unaccompanied by any written
acknowledgment or promise to pay the indebtedness executed by defendants, was not
sufficient to toll the statute. The statute then under consideration, 30, Ch. 12, Stats. of Nev.
1861, p. 31, was identical with NRS 11.390, hereinafter set forth, except for the italicized
language of the present statute which was added by amendment after the decision in Wilcox
v. Williams, supra. No acknowledgment or promise shall be sufficient evidence of a new or
continuing contract whereby to take the case out of the operation of this chapter, unless the
same be contained in some writing signed by the party to be charged thereby, except as
provided in NRS 11.200.
NRS 11.200 provides, The time in NRS 11.190 shall be deemed to date from the last
transaction or the last item charged or last credit given; and whenever any payment on
principal or interest has been or shall be made upon an existing contract, whether it be a bill
of exchange, promissory note or other evidence of indebtedness if such payment be made
after the same shall have become due, the limitation shall commence from the time the last
payment was made. NRS 11.190, referred to in NRS 11.200, prescribes the periods of
limitations for the commencement of actions based upon particular types of obligations.
[Headnotes 1, 2]
Appellants assert that, by reason of the amendment of the statute, the decision in Wilcox v.
Williams, supra, is no longer controlling and that the part payment made by respondent was
sufficient to remove the bar of the statute. In this connection appellant construes NRS 11.200
to provide that any payment on principal or interest made on an existing contract after the
same shall have become due, extends the period of time within which suit may be brought,
not limiting the effect of such payments to those made prior to the running of the statute. We
are unable to agree with appellants' construction of the statute. There is a clear distinction
between an existing contract which shall have become due within the purview of NRS
11.190 and a contract which has not only become due but the enforcement of which has
become barred by the statute of limitations.
76 Nev. 271, 274 (1960) Riff v. Kowal
which has not only become due but the enforcement of which has become barred by the
statute of limitations. Rather, the language existing contract, as used in NRS 11.200, when
considered with its context and the language of related statutory provisions hereinabove
referred to, must be construed to mean an existing enforcible contract and not a contract the
enforcement of which has already been barred by the statute of limitations.
Appellants refer to the decision of the California Supreme Court in Eilke v. Rice, 45
Cal.2d 66, 74, 286 P.2d 349, 353, construing a 1947 amendment to the California statute as
persuasive authority supporting appellants' contentions. However, the following statement
contrary to appellants' contentions appears in that decision: Any payment made after the first
four years have run without extension or after four years have passed since the last extension
by part payment, will not have the effect of tolling the statute.
Judgment affirmed.
____________
76 Nev. 274, 274 (1960) Pinana v. State
THELMA PINANA, Appellant, v. THE
No. 4216
May 31, 1960 352 P.2d 824
Department No. 1.
Defendant was found guilty of murder in the first degree. The trial court rendered
judgment and defendant appealed. The Supreme Court, McNamee, C. J., held, inter alia, that
court did not err in refusing to permit pretrial inspection of autopsy report, blood alcohol test,
and statements of defendant and that it did not err with respect to instructions and that
evidence sustained conviction.
and statements of defendant and that it did not err with respect to instructions and that
evidence sustained conviction.
Affirmed.
Roger D. Foley, Attorney General, William J. Raggio, District Attorney, Washoe County,
and Emile J. Gezelin, Chief Deputy District Attorney, Washoe County, for Respondent.
1. Courts.
Statute providing that rules of evidence in civil actions shall be applicable to criminal actions, except as
otherwise provided, had no application to rules of civil procedure which were adopted subsequent to its
enactment. NRS 178.225; NRCP 34-37.
2. Criminal Law.
Statute providing that rules of evidence in civil actions shall be applicable to criminal actions, except as
otherwise provided, does not refer to procedure and does not authorize pretrial inspection of an autopsy
report, blood alcohol test, and statements of defendant. NRS 178.225.
3. Criminal Law.
Unless trial judge is required by statute to permit particular type of inspection, it is not erroneous for him
to deny inspection where the basic rights of defendant would not be thereby prejudiced.
4. Criminal Law.
As trial court's denial of request that defendant be permitted pretrial inspection of autopsy report, blood
alcohol test, and of her statements, in murder prosecution, did not prevent her from having fair trial, it was
not error.
5. Criminal Law.
Defendant was not prejudiced in respect to a substantial right by trial court's denial of her motion that she
be given pretrial psychiatric and medical examination at expense of county where she was examined before
trial by physician and surgeon of her own choosing who was specialist in psychiatry and who testified that,
at time of shooting giving rise to prosecution, she suffered from mental disease, that she had acute
psychosis, that she was in state of confusion and did not know nature of act which was committed.
6. Pardon and Parole.
The constitutional provision empowering the Governor, justices of the Supreme Court, and Attorney
General to remit fines and forfeitures, commute punishments, and grant pardons after convictions does not
preclude the legislature from conferring power of parole upon a court, and the statutory provision
permitting jury to fix penalty for first degree murder at life without possibility of
parole is not violative of such constitutional provision.
sion permitting jury to fix penalty for first degree murder at life without possibility of parole is not violative
of such constitutional provision. NRS 200.030, subd. 4; Const. art. 5, 14.
A parole is distinguishable from a pardon.
Parole is not a constitutional right; it is bestowed by legislative grace. NRS 200.030, subd. 4; Const.
art. 4, 1.
9. Criminal Law.
Legislature has exclusive power to determine length of imprisonment for a felony, and statutory provision
permitting jury to fix penalty for first degree murder at life without possibility of parole was merely an
exercise of constitutional powers. NRS 200.030; Const. art. 4, 1.
10. Constitutional Law; Criminal Law.
Statutes giving courts or juries discretion in fixing punishment, with respect both to nature thereof (a fine
or imprisonment or both) and to extent thereof within certain fixed limits are not violative of constitutional
equal protection provisions. NRS 200.030, 213.120, subd. 1.
11. Criminal Law.
Until maximum sentence, as fixed by parole board for sentence of life imprisonment, would have been
served, defendant sentenced to life without possibility of parole would be deprived of no substantial right
by such sentence. NRS 200.030, subd. 4.
12. Criminal Law.
Trial court did not err in sustaining State's objection to production of statements made by defendant,
pursuant to subpoena duces tecum directed to prosecuting attorney where subpoena was being used solely
for purposes of discovery, necessity for production of such statements at that stage of proceedings was not
shown and such statements were later received in evidence.
13. Witnesses.
The office of a subpoena duces tecum is not to require production of books and papers for a party's
inspection.
14. Criminal Law.
Proceedings, in justice court, stating that complaint was filed against defendant being present in court,
she was duly and regularly arraigned, and upon being advised of her rights, and of her right to obtain
private counsel to defend her at time of her preliminary hearing, time for such hearing was set and
defendant was held to answer, sufficiently disclosed compliance with requirements of statute that
magistrate immediately inform defendant of charge. NRS 171.370.
15. Criminal Law.
Term arraignment refers to initial appearance of a defendant in district court after indictment or
information has been filed. NRS 174.130.
16. Criminal Law.
Where defendant proceeded to trial on merits without raising any objection to proceedings in justice's
court, she thereby waived any irregularities which might have occurred therein.
thereby waived any irregularities which might have occurred therein.
17. Criminal Law.
Instruction, in murder prosecution, that all murder which is perpetrated by means of lying in wait is
murder in first degree was not erroneous under claimed infirmities of failing to state that murder must first
be established before question of lying in wait can be considered, where, in other instructions, court
defined murder and stated that to find defendant guilty, all elements must have been proven beyond
reasonable doubt, and instruction as given was warranted by the evidence.
18. Homicide.
Instruction in murder prosecution, paraphrasing statutory provision stating degrees of murder was
properly and necessarily given in order to inform jury of nature of its duty in event it found defendant
guilty of first degree murder and no further guidance to jury in fixing punishment was required. NRS
200.030.
19. Homicide.
In murder prosecution, instruction properly defining second degree murder was not erroneous for court's
refusal to add thereto repetitious sentence stating definition in similar but rearranged words.
20. Criminal Law.
Instruction in murder prosecution explaining when drunkenness is no excuse for commission of a crime
was proper statement of law.
21. Criminal Law.
A mind capable of knowing right from wrong is a mind capable of entertaining intent, and of deliberating
and premeditating.
22. Criminal Law.
Instruction, in murder prosecution, stating that a mind capable of knowing right from wrong is a mind
capable of entertaining intent and of deliberating and premeditating was proper statement of law and was
not misleading when considered with other instructions.
23. Criminal Law.
Court properly refused to give instructions where subject matter thereof was substantially and properly
covered in instructions given. NRS 169.110.
24. Criminal Law.
Affidavits concerning hearsay statements of one of the jurors, and amounting to indirect way of
permitting juror to impeach his own verdict, were not entitled to consideration on motion for new trial.
25. Criminal Law.
Personal testimony of jurors, as to asserted misconduct, proffered as attempt to have jurors impeach their
own verdict by showing that they had answered questions on voir dire examination improperly and that
they had considered facts outside record was properly refused.
26. Homicide.
Evidence sustained murder conviction.
27. Criminal Law.
Duty of an appellate court to review evidence has been performed when it has determined that there is
substantial evidence to support the verdict.
OPINION
Appellant by jury verdict was found guilty of murder in the first degree and the jury by its
verdict fixed the penalty at confinement in the state prison for life without possibility of
parole. Appeal is from the judgment based on said verdict and from the order denying a new
trial.
On September 14, 1958, in the home of appellant and her husband in Reno, Nevada,
appellant shot her husband. The shooting occurred at 8 o'clock in the morning after the parties
had been out all night visiting several bars and consuming a number of drinks. Immediately
preceding the shooting they had engaged in an argument and had discussed a divorce.
According to appellant's testimony the pistol had been in a drawer of the nightstand in the
bedroom. She stated she intended to unload the gun and while it was in her hands it
discharged. After being shot, the victim walked outside the house and fell dying in the street.
Appellant was interrogated by police officials on the day of the shooting before she knew her
husband had died and also on the next day after she had been informed of the death of her
husband. An autopsy was performed on the deceased, revealing that three bullets had pierced
the body of the victim.
Several weeks after the shooting, appellant was examined by a psychiatrist at the request
of the district attorney. Thereafter a motion by her counsel that she be examined from a
medical and psychiatric standpoint at county expense was denied. A motion for an order
compelling the pre-trial disclosure of an autopsy and blood alcohol report on the deceased, a
blood alcohol test on appellant, and of certain statements made by appellant to law officials
was denied. A petition for a writ of mandamus to compel such pre-trial disclosure was filed
in this court and denied upon the ground that mandamus does not lie to control judicial
discretion or to review the propriety of judicial action.
mandamus to compel such pre-trial disclosure was filed in this court and denied upon the
ground that mandamus does not lie to control judicial discretion or to review the propriety of
judicial action. Pinana v. Second Judicial District Court, 75 Nev. 74, 334 P.2d 843.
The specifications of error are hereinafter considered separately:
(1) Did the trial court err in refusing to permit pretrial inspection of the autopsy report,
blood alcohol tests, and statements of appellant?
[Headnotes 1, 2]
Appellant concedes that there was no common-law right of discovery or inspection prior to
trial in criminal cases. Such right was created in England in modern times upon the adoption
there of a pre-trial procedure which permits counsel for a defendant to have in his possession
before the trial begins all of the evidence that can be presented at the trial. Of course, this
change of the common law occurred long after the adoption of the common law in this state.
Appellant contends that the adoption of the Nevada Rules of Civil Procedure which provide
for pre-trial disclosure in civil cases should be likewise applied to criminal actions because of
NRS 178.225 which provides: The rules of evidence in civil actions shall be applicable also
to criminal actions, except as otherwise provided in this Title. This statute is identical with
section 604 of the 1911 Act regulating proceedings in criminal cases found in NCL(1929)
11251. It obviously could have no application to Nevada Rules of Civil Procedure which
were adopted January 1, 1953. People v. Wilkins, 135 Cal.App. 2d 371, 287 P.2d 555. See
State ex rel. Keast v. District Court, 135 Mont. 545, 342 P.2d 1071. Furthermore, by its very
terms it refers to evidence in civil actions and not to procedure.
In the absence of statute giving a defendant the right to pre-trial inspection of the
prosecution's evidence, the decisions are not harmonious in dealing with this matter. The
general rule is that in the absence of statute the allowance of such inspection rests within the
discretion of the trial court. Appellant concedes this in the oral argument.
oral argument. We assumed such to be the rule in Nevada, when in refusing to issue a writ of
mandamus to compel the lower court to permit inspection we stated that mandamus would
not lie to control judicial discretion. Pinana v. Second Judicial District Court, supra.
[Headnotes 3, 4]
There are many good reasons why courts in the exercise of their discretion should be
liberal in allowing pre-trial inspection of prosecution evidence, but proper limitations to such
inspections must be respected. See People v. D'Andrea, 20 Misc.2d 1070, 195 N.Y.S.2d 542.
Unless a trial judge is required by statute to permit a particular type of inspection, it is not
erroneous for him to deny inspection where the basic rights of a defendant would not thereby
be prejudiced. The trial judge before whom the situation can easily be presented is able to
determine better than an appellate court what is proper in a particular case. We fail to find
anything in the record to support appellant's contention that this denial of pre-trial disclosure
prevented her from having a fair trial.
In her reply brief appellant states that if the court had inherent discretionary authority to
permit pre-trial inspection it refused to exercise such discretion. This assertion is based upon
this statement of the court: However, it may be a good thing to have pre-trial discovery in
criminal cases, but until the Legislature tells me otherwise, the motion will be denied. All
that the court's statement amounts to is that, absent statutory compulsion, he would not grant
the particular motion, under the particular circumstances, in the particular instance. But, in
any event, as heretofore stated, no prejudice was shown to appellant by the court's ruling and,
thus, no reversible error can be claimed therefrom. State v. Squier, 56 Nev. 386, 54 P.2d 227;
NRS 169.110.
[Headnote 5]
(2) Appellant claims that the court erroneously denied appellant's motion that she be given
a pre-trial psychiatric and medical examination at the expense of the county.
Counsel concede that there is no statutory basis for such a motion but contend that the
court has inherent discretionary power to grant such a motion, and for it to decline to
consider the motion "upon the ground that there is no statutory authority represents an
abuse of discretion."
such a motion but contend that the court has inherent discretionary power to grant such a
motion, and for it to decline to consider the motion upon the ground that there is no statutory
authority represents an abuse of discretion. The record does not disclose that such was the
reason for the court's denial of the motion. Nor does anything appear in the record to show
that the court was of the opinion that it had no inherent power to grant such a motion. In our
opinion this contention is without merit.
The court's denial of this motion did not result in a miscarriage of justice nor was appellant
actually prejudiced in respect to a substantial right in view of the fact that she was examined
before the trial by Dr. Raymond M. Brown, a physician and surgeon of her own choosing who
was a specialist in psychiatry. His testimony at the trial based upon such examination was to
the effect that appellant at the time of the shooting was suffering from a mental disease, that
she had an acute psychosis, and was in a state of confusion, and that she did not know the
nature and quality of the act which was committed.
We fail to see where appellant could have profited more from testimony given by such a
specialist merely because his services were paid for by the county.
(3) Appellant contends that subsection 4 of NRS 200.030 is unconstitutional in so far as it
permits a jury to fix the penalty for first degree murder at life without possibility of parole.
[Headnote 6]
In her opening brief she fails to distinguish between pardon and parole. It is her contention
that Article 5, 14, of the Nevada Constitution, which empowers the governor, justices of the
supreme court, and attorney general to remit fines and forfeitures, commute punishments,
and grant pardons, after convictions precludes the legislature from conferring the power of
parole upon a court. The contention is without merit.
[Headnote 7]
A parole is distinguishable from pardon. Ex parte Anderson, 191 Ore. 409, 229 P.2d 633,
230 P.2d 770, 29 A.L.R.2d 1051; State ex rel.
29 A.L.R.2d 1051; State ex rel. Murphy v. Superior Court, 30 Ariz. 332, 246 P. 1033, 47
A.L.R. 401; 39 Am. Jur., 11, Pardon, Reprieve and Amnesty, p. 525. The rule by some
decisions is that the power to pardon includes the power to parole. 67 C.J.S. 19, p. 600.
However the law seems well settled that no infringement upon the powers of the executive to
grant pardons, reprieves, or commutations of sentences occurs, where a statute empowers an
administrative body to establish a system of parole. Commonwealth ex rel. Banks v. Cain,
345 Pa. 581, 28 A.2d 897, 143 A.L.R. 1473 (Annot., p. 1486); Application of Fredericks, 211
Ore. 312, 315 P.2d 1010.
Likewise the pardoning and sentence-suspending power of the executive could not be
infringed by statute giving the courts power over paroles.
In Commonwealth ex rel. Banks v. Cain, supra, [345 Pa. 581, 28 A.2d 899] the
Pennsylvania Supreme Court said: The constitutionality of this statute is attacked on two
principal grounds. The first is that it infringes upon the power of the Governor to grant
commutations of sentence and pardons * * * . There is no novelty in this contention; it has
been made many times in the courts of other states in which parole systems are administered
by boards or prison managers, and has been rejected in practically all jurisdictions. (Citing
cases.) There is a radical difference between a pardon and a parole. A pardon is the exercise
of the sovereign's prerogative of mercy. It completely frees the offender from the control of
the state. It not only exempts him from further punishment but relieves him from all the legal
disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in
the eye of the law, he is thereafter as innocent as if he had never committed the offense:
(Citing cases.) A parole, on the other hand, does not obliterate the crime or forgive the
offender. It is not an act of clemency, but a penological measure for the disciplinary treatment
of prisoners who seem capable of rehabilitation outside of prison walls. It does not set aside
or affect the sentence; the convict remains in the legal custody of the state and under the
control of its agents, subject at any time, for breach of condition, to be returned to the
penal institution.
affect the sentence; the convict remains in the legal custody of the state and under the control
of its agents, subject at any time, for breach of condition, to be returned to the penal
institution. Neither is a parole a commutation of sentence, within the meaning of that term in
the constitutional provision. When our present constitution was adopted, parole, as a
penological expedient, was unknown to American jurists and legislators, and commutation'
was then generally understood as meaning a reduction in the length of the sentence, effecting
a discharge of the prisoner without any further supervision over him by the state authorities.
The constitutional power of the Governor to grant pardons and commutations of sentence is
exclusive, so that the fact that the legislature has, by various statutes, given the power of
parole to the criminal courts, to the board of managers of the Industrial Reformatory at
Huntingdon, and to the board of trustees of the State Industrial Home for Women, indicates
that parole has never been considered as being within the category of either pardon or
commutation. The courts in other states have held that a parole is not a commutation as that
term is employed in their respective constitutions. (Citing cases.)
[Headnote 8]
The subject of parole in this state is within the legislative authority given by the
constitution to the legislature. Art. 4, Sec. 1, Nevada Constitution. Parole is not a
constitutional right; it is a right bestowed by legislative grace. Zink v. Lear, 28 N.J.Super.
515, 101 A.2d 72.
[Headnote 9]
The legislature has the exclusive power to determine the length of imprisonment for a
felony. In re Callahan's Petition, 348 Mich. 77, 81 N.W.2d 669. And in the enactment of NRS
200.030 it was merely exercising its constitutional powers.
[Headnote 10]
Appellant also contends that NRS 200.030 is unconstitutional in that it violates the equal
protection clause of the federal constitution by empowering the jury to give some persons
convicted of first degree murder life sentences with the possibility of parole and to deny
the possibility of parole to others.1 This argument loses force in view of appellant's
admission that a jury upon finding a person guilty of first degree murder may properly
determine the punishment at death or life imprisonment.
of the federal constitution by empowering the jury to give some persons convicted of first
degree murder life sentences with the possibility of parole and to deny the possibility of
parole to others.
1
This argument loses force in view of appellant's admission that a jury upon
finding a person guilty of first degree murder may properly determine the punishment at death
or life imprisonment. Statutes giving courts or juries discretion in the fixing of punishment,
with respect both to the nature thereof (a fine or imprisonment or both), and to the extent
thereof within certain fixed limits are not violative of constitutional equal protection
provisions. Cochran v. Simpson, 143 Kan. 273, 53 P.2d 502; cf. Ughbanks v. Armstrong, 208
U.S. 481, 28 S.Ct. 372, 52 L.Ed. 582; People v. Dixon, 400 Ill. 449, 81 N.E.2d 257.
[Headnote 11]
As to the effectiveness of the provision in the verdict against parole, it may be that it can
be considered at the time appellant, in the absence of such a provision, would otherwise
become eligible for parole. Until the minimum sentence as fixed by the parole board for a
sentence of life imprisonment has been served appellant would not be deprived of any
substantial right. In re Current, 76 Nev. 41, 348 P.2d 470. The said provision of course would
not bar a pardon or a commutation of the sentence.
[Headnote 12]
(4) Appellant's counsel had issued a subpoena duces tecum directed to the prosecuting
attorney herein and requiring him to produce certain statements made by appellant on
September 14, 1958. The lower court's action in sustaining the state's objection to the
production of said statements is cited as error. We believe however that this action of the trial
court was proper.
It is to be noted that the prosecuting attorney was willing to take the stand and testify
regarding those matters contained in the statements which were related to him by appellant,
but it is apparent from the record that appellant's counsel was not interested in the
statements for an evidentiary purpose but solely to peruse them and become familiar with
their contents.
____________________

1
Subsection 1 of NRS 213.120 provides: No prisoner imprisoned under a verdict or judgment and sentence
of life imprisonment without possibility of parole shall be eligible for parole.
that appellant's counsel was not interested in the statements for an evidentiary purpose but
solely to peruse them and become familiar with their contents. In other words the subpoena
duces tecum was being used solely for the purpose of discovery, and an attempted pre-trial
discovery with respect to said statements had already been denied appellant. The necessity for
the production of said statements at this stage of the proceedings was not shown and,
furthermore, the statements were later received in evidence.
[Headnote 13]
The office of a subpoena duces tecum is not to require the production of books and papers
for a party's inspection. American Car & Foundry Co. v. Alexandria Water Co., 221 Pa. 529,
70 A. 867, 128 Am.St.Rep. 749; 58 Am.Jur., 20, Witnesses, p. 33.
[Headnote 14]
(5) Appellant claims that she is being deprived of her liberty without due process of law
because she was not advised of her rights in the preliminary hearing, and because the state did
not comply with the law pertaining to preliminary hearings.
The proceedings in the justice's court disclose that on September 10, 1958, a complaint
was filed and appellant being present in court, she was duly and regularly arraigned, and
upon being advised of her rights, and of her right to obtain private counsel to defend her at
the time of her preliminary hearing, said hearing is hereby set for September 29, 1958, at the
hour of 2 p. m. That at the time so set, the preliminary hearing took place and appellant was
held to answer.
In our opinion this shows a compliance with the provisions of NRS 171.370 which states
that when the defendant is brought before the magistrate upon an arrest on a charge of having
committed a public offense, the magistrate must immediately inform him of the charge
against him, and of his right to the aid of counsel at every stage of the proceedings.
[Headnote 15]
The record does not expressly state that she was informed of the charge, but the recital that
she was "arraigned" implies that she was so informed.
arraigned implies that she was so informed. It is true that arraignment refers to the initial
appearance of a defendant in the district court after an indictment or information has been
filed. It consists in part of reading the indictment or information to the defendant. NRS
174.130. It is apparent that the justice of the peace in stating that the appellant was duly and
regularly arraigned was recording the fact that she was informed of the charge against her by
the reading of the complaint.
[Headnote 16]
Although the record fails to state that appellant was informed of her right to counsel at
every stage of the proceeding she was informed of her right to have counsel at the
preliminary hearing, which was the only hearing prior to trial, and at the trial and subsequent
thereto she was at all times represented by counsel. Appellant proceeded to trial on the merits
without raising any objection to the proceedings in the justice's court, and in doing so waived
any irregularities which might have occurred therein. See State v. Dale, 66 S.D. 418, 284
N.W. 770; State v. Reddington, 7 S.D. 368, 64 N.W. 170.
[Headnote 17]
(6) Error is claimed in the giving and refusing to give certain instructions.
a. Instruction 12 states in part: All murder which is perpetrated by means of lying in wait
is murder of the first degree. Appellant contends that this instruction was defective because
the court failed to explain that murder must first be established before the question of lying in
wait can arise. In the other instructions given the court defined murder and stated that to find
appellant guilty thereof all of the elements must have been proven beyond a reasonable doubt.
In view of the appellant's own testimony the jury could properly have inferred that she was
lying in wait for the victim at the time of the shooting. Under such circumstances this
instruction was proper to aid the jury in determining the degree of the offense in the event
they found the appellant guilty of murder.
[Headnote 18]
b. Instruction 18 paraphrases subsection 4 of NRS 200.030. It was properly and necessarily
given in order to inform the jury of the nature of its duty in the event it found the defendant
guilty of murder in the first degree. No further guidance to the jury in fixing the punishment
is required.
[Headnote 19]
c. In instruction 19 the court properly defines second degree murder. It was not error for
the court to refuse to add thereto a repetitious sentence stating the definition in similar
rearranged words.
[Headnote 20]
d. Instruction 25 explains when drunkenness is no excuse for the commission of a crime. This
instruction substantially states the law on the subject. State v. Thompson, 12 Nev. 140.
[Headnotes 21, 22]
e. Instruction 29 reads: A mind capable of knowing right from wrong is a mind capable of
entertaining intent, and of deliberating and premeditating. This is a correct statement of the
law. Fox v. State, 73 Nev. 241, 316 P.2d 924. Considered with the other instructions it could
not be misleading, as claimed by appellant.
[Headnote 23]
f. Appellant contends that it was error for the court to refuse to give her requested
instructions on intent, reasonable doubt, presumption of innocence, state of mind, insanity,
and intoxication. All of these matters were substantially and properly covered in the
instructions given. If it were error not to have given any particular requested instruction, the
same will not be considered on appeal in the absence of a showing that appellant was
prejudiced thereby. NRS 169.110.
(7) Appellant claims error in the court's refusal on the motion for new trial to permit her to
show that the jury was guilty of misconduct.
The motion for new trial was grounded upon the alleged errors heretofore considered and
also upon the ground that the jury was guilty of misconduct in that it received evidence out
of court and that the "verdict has been decided by a means other than a fair expression of
opinion on the part of all of the jurors."
it received evidence out of court and that the verdict has been decided by a means other than
a fair expression of opinion on the part of all of the jurors.
[Headnote 24]
In support of this latter ground appellant offered in evidence the affidavits of Leslie B.
Gray, one of appellant's counsel, and of Ernest R. Ferguson. These affidavits concerned only
hearsay statements of Richard Haman, one of the jurors, and amounted to an indirect way of
permitting a juror to impeach his own verdict. The court properly held that they were entitled
to no consideration. Priest v. Cafferata, 57 Nev. 153, 60 P.2d 220.
[Headnote 25]
The motion for new trial stated that in addition to said two affidavits it would be based on
the personal testimony of the jurors. When several of the jurors were called to testify,
objection to the admission of such testimony was sustained by the trial court. From the offer
of proof presented the purpose of this testimony was an attempt to have the jurors impeach
their own verdict by showing they had answered questions on their voir dire examination
improperly and that they had considered facts outside the record. As stated in Priest v.
Cafferata, supra: Scarcely any rule of law is more thoroughly entrenched in the jurisprudence
of this country than the general one that a juror will not be heard to impeach his own verdict.
The court did not err in refusing to permit the jurors to testify under these circumstances. So.
Nev. M. Co. v. Holmes M. Co., 27 Nev. 107, 73 P. 759, 103 Am.St.Rep. 759.
[Headnote 26]
(8) Appellant's last assignment of error is that the verdict is contrary to the law and that the
evidence is insufficient to sustain a verdict of murder in the first degree.
It clearly appears from the record that there was sufficient evidence from which the jury
could determine that appellant consciously conceived an intent to kill her husband, that she
had the capacity at the time of the shooting to reflect and to understand the
consequences of her actions, that the killing was willful, deliberate, and premeditated,
and, as stated before, there was evidence of lying in wait which with the other evidence
establishing murder would support a verdict of murder in the first degree.2
husband, that she had the capacity at the time of the shooting to reflect and to understand the
consequences of her actions, that the killing was willful, deliberate, and premeditated, and, as
stated before, there was evidence of lying in wait which with the other evidence establishing
murder would support a verdict of murder in the first degree.
2

[Headnote 27]
The duty of an appellate court to review the evidence has been performed when it has
determined that there is substantial evidence to support the verdict.
In State v. Bourdlais, 70 Nev. 233, 255, 265 P.2d 761, 771, this court said:
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.
No prejudicial error appearing, the judgment and order denying the motion for a new trial
are affirmed, and the application for modification of the judgment by reducing the degree of
the crime is denied.
____________________

2
Some of the evidence in the record which supports the verdict is as follows: a pillow in front of the
bathroom door with an apparent bullet hole through it, evidentiary of an attempt to silence the shots; appellant's
act of tearing up her marriage license prior to the shooting; the existence of three bullet wounds in the body of
the victim and the testimony that the shots weren't real close together; appellant's taking the gun into the
bathroom from where the first shot was fired; appellant's concealing herself in the bathroom with the door
partially open; and appellant's statement immediately after the shooting that I shot him. I killed him. He was
going to leave me and I fixed him good.
____________
76 Nev. 290, 290 (1960) St. John v. Building Trades Council
THEODORE B. ST. JOHN, dba TED'S PLUMBING, Appellant, v. BUILDING TRADES
COUNCIL OF RENO AND VICINITY and PLUMBERS AND STEAMFITTERS UNION,
LOCAL NO. 350, and ADAM ALGER, Respondents.
No. 4266
June 2, 1960 352 P.2d 820
Department No. 1.
Action brought by plumber, who did his own work and employed no help, to recover from
building trades union for losses sustained by reason of black-listing of plumber. The trial
court denied the relief sought, and plaintiff appealed. The Supreme Court, Badt, J., held that
inducing plumber to confine his working hours to 40-hour week was a lawful union objective
and that black-listing was a proper means of coercive action to attain such objective.
Affirmed.
Ernest S. Brown, Ray S. Flanary, and Jack I. McAuliffe, of Reno, for Appellant.
Harry A. Busscher and Roger Bissett, of Reno, and Brundage, Neyhart, Grodin and
Miller, of San Francisco, for Respondents.
1. Labor Relations.
Inducing plumber, who did his own work and employed no help, to confine his working hours to 40-hour
week was a lawful union objective; and black-listing such plumber was a proper means of coercive action
by building trades union to attain such objective.
2. Labor Relations.
In action brought by plumber, who did his own work and employed no help, to recover from building
trades union for losses sustained by reason of black-listing of plumber, evidence sustained finding that
attempted regulation of work week bore reasonable relevance to labor conditions and that it was not
unlawful for union to black-list plaintiff in an attempt to require him to observe 40-hour labor week.
3. Labor Relations.
Right to work law did not make it unlawful for union to black-list plumber, who did his own work and
employed no help, in order to coerce him to confine his working hours to a 40-hour week.
OPINION
St. John, who was engaged in the contracting and subcontracting of plumbing work in
Washoe County had bid upon two jobs with T & T Engineering Company to do the plumbing
work on the construction of two service station buildings. His bids were the low bids on these
jobs. He had undertaken the plumbing subcontracts for T & T for a number of years in the
past. He did his own work and employed no help. T & T would have accepted St. John's bid
and would have employed him on these two jobs, but for the fact that the building trades
council and the local union had put St. John on their We do not patronize list. The reason
for such action was St. John's refusal to confine the hours of his work to a 40-hour week. St.
John sued for damages for a common-law tort, asserting that by reason of the loss of these
two contracts he had suffered special damages in the amount of $1,500, and further general
damages. From a judgment in favor of defendants, St. John has appealed.
[Headnote 1]
The question presented for our determination is whether the coercive action of the
defendants in putting the plaintiff on their We do not patronize list was for a lawful
objective. We have concluded that it was and that the judgment must accordingly be affirmed.
Appellant concedes that the circulating of a We do not patronize list is not an improper
means of coercive action.
The district court filed a written opinion and decision which contained its own findings
and conclusions and, without making formal findings, directed that judgment be entered in
accordance therewith.
The trial court found that there were no threats against either St. John or T & T
Engineering Company, that there was no unlawful coercion, no unlawful intimidation, and
that the allegations of the complaint as to these factual issues had not been substantiated. The
court concluded that the circulation of the We do not patronize list as a means of coercion
was not unlawful in itself, nor was its purpose unlawful in attempting to require plaintiff to
accede to a 40-hour labor week with no weekend activity, as such attempted regulation bears
a reasonable relevance to labor conditions * * * and directed towards something which is
reasonably related to employment and working conditions.
[Headnote 2]
This is amply supported by the record. The business agent testified: [I]n our craft, the
plumbing industry, out of the 35 contractors in Reno and Sparks, more than half are
self-employed, because in our books, when a man goes to work with his tools, he's working,
he's self-employed. We have so many plumbing contractors in this area that are in about the
same category as Mr. St. John. They work with tools, and, on occasion, when there is more
work than they can handle, they employ men, and they have agreed to observe the 40 hours
which is so important to the working man, that he has strived for centuries to obtain, and
especially in our community the 40-hour week is essential, in the building construction
industry. * * * If [violation of the eight-hour day] is permitted, we would lose the eight-hour
day. It would impair our ability to enforce a collective bargaining agreement. Other
contractors could not compete against a utility contractor that did not observe the eight-hour
day.
Appellant has made his position clear by the use of the following language:
The conflict involved here, however, was not the conflict between employer and
employee. Rather, in essence, it was a conflict between laborers. Requiring appellant to work
only forty hours a week could not possibly advance the welfare of the Union. The Trial Court
suggests that the Union was protecting its hard-earned working conditions.
working conditions. But the problem seems to be deeper. How did the Union protect itself?
By approaching appellant as an employer? No. It was done by demanding only that appellant
work no more than forty hours a week, which, in effect, is a demand that appellant as a
laborer, not as an employer, comply with the Union standards.
If this is true, which appellant contends, then this problem cannot be solved by the use of
the privilege to inflict injury because such privilege is accorded only in a conflict with an
employer. This is coercion applied by laborers to another laborer. This is an interference with
the right of appellant to labor and is not and cannot be justified on the basis of the
competition which occurs between labor and management.
The foregoing contention is amplified throughout many pages of the opening and reply
briefs and was orally argued with great earnestness. Such contention, however, has been
repeatedly rejected by the United States Supreme Court. Senn v. Tile Layers Protective
Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229; Cafeteria Employees Union v. Angelos,
320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58; Bakery Drivers Local v. Wohl, 315 U.S. 769, 62
S.Ct. 816, 86 L.Ed. 1178. These and many other cases were cited and discussed at length in
the prevailing and dissenting opinions both on the original hearing and on the motion for
rehearing in State ex rel. Culinary Workers v. Eighth Judicial District Court (known as the
White Cross Drug case), 66 Nev. 166, 207 P.2d 990, 210 P.2d 454. That case concerned itself
entirely with Nevada's right to work law (sec. 10473 NCL 1929; now NRS 613.130), as did
Jensen v. Reno Central Trades and Labor Council (known as the Lake Street Pharmacy case),
68 Nev. 269, 229 P.2d 908, decided under that same statute and under issues arising prior to
the amendment of March 14, 1951 (Nev. Stats. 1951, 111), now NRS 613.130, and prior to
the effective date of the initiative act passed at the general election of Nov. 4, 1952 (Stats.
1953, 1), now NRS 613.230-613.300.
Many state cases are in accord. In Colorado peaceful picketing to persuade a contractor to
adopt prevailing wage rates was permitted.
wage rates was permitted. Pueblo Building and Construction Trades Council v. Harper
Construction Company, 134 Colo. 469, 307 P.2d 468. In Arkansas an injunction against
picketing was denied where the cause of the coercion was that the employer employed
nonunion electricians at wages below the prevailing union wage. Self v. Wisener, 226 Ark.
58, 287 S.W.2d 890. (Incidentally it was claimed there, as here, that the coercion was for the
purpose of enforcing employees to join the union.) In Arizona it was held that the picketing
was not unlawful where the employer refused to discuss the situation with reference to the
economic effect of the wage rate and conditions of employment prevailing on the employer's
job contrary to those prevailing in the state building industry. International Brotherhood of
Carpenters and Joiners v. Todd L. Storms Const. Co., 84 Ariz. 120, 324 P.2d 1002. It should
be noted that Arkansas and Arizona have right to work laws, and Colorado has a restrictive
statute. Appellant distinguishes these cases because in them the coercive pressure was
directed against the respective employers. Under the federal cases discussed, we do not
recognize this as a distinction. In Jensen v. Reno Central Trades and Labor Council, supra,
Justice Merrill, speaking for this court, said (68 Nev. 269, 229 P.2d 912): Both the Senn and
Hanke cases dealt with injunctions against picketing of self-employers * * *. (Italics
supplied.) The same is also true in Cafeteria Employees Union v. Angelos, supra.
Appellant contends that this case is controlled by International Brotherhood of Teamsters,
Etc. Union v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995, in which the Supreme Court
of the United States sustained an injunction against picketing a used-car sales business
conducted by the owner himself without employees. The purpose of the picketing was to
compel observance of a restricted work day and work week and a restriction against weekend
sales to conform with union rules and standards. The Supreme Court of the United States
bowed to the judgment of the Washington courts in striking a balance not inconsistent with
rooted traditions of a free people, and refused to say that in making its choice it offended the
Constitution.
its choice it offended the Constitution. In such action the supreme court considered that
Washington had concluded that it was more important to safeguard the value which the state
placed upon self-employers. The supreme court said: The relatively small interest of the
unions considerably influenced the balance that was struck. Of 115 used car dealers in Seattle
maintaining union standards, all but ten were self-employers with no employees. From this
fact,' so we are informed by the Supreme Court of Washington, the conclusion seems
irresistible that the union's interest in the welfare of a mere handful of members (of whose
working conditions no complaint at all is made) is far outweighed by the interests of
individual proprietors and the people of the community as a whole, to the end that little
businessmen and property owners shall be free from dictation as to business policy by an
outside group having but a relatively small and indirect interest in such policy.' 33 Wash.2d at
659, 207 P.2d at 213. The court found nothing inconsistent in such holding with the holdings
in the A. F. of L. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Bakery Drivers Local
v. Wohl; or Cafeteria Employees Union v. Angelos, both cited supra. Nor does the Hanke
case justify any divergence on our part from recognition of the holdings in those cases.
Appellant also relies upon Building Service Employees International Union v. Gazzam,
339 U.S. 532, 70 S.Ct. 784, 789, 94 L.Ed. 1045, decided on the same day as the Hanke case.
There the United States Supreme Court affirmed Washington's injunction against peaceful
picketing to compel an employer to sign a contract with a labor union which would have
coerced his employees' choice of bargaining representative. It held that the public policy of
Washington was that workers should be free to join or not to join a union and that they should
be free from the coercion or restraint of employers of labor in the designation of their
representatives for collective bargaining, and that coercion by picketing was an attempt to
induce a transgression of this policy. The court said that it was not for it to judge the wisdom
of that policy. The injunction granted was tailored to prevent a specific violation of an
important state law.
[Headnote 3]
Appellant argues that such is the case here; that the union's insistence that St. John
conform to union hours could well be extended to an insistence that he conform to union
requirements as to payment of time and a half or payment of double time for overtime work,
provisions for allowance of meal time, requirement for permission of a shop steward or
business agent to work overtime, payment of travel expenses and subsistence under certain
conditions, contributions to a welfare fund, payment of double time for certain kinds of work,
allowance of pick-up time for gathering of tools and equipment, and similar requirements. If
such were true, it would in essence amount to coercion to compel St. John in effect to become
a member of the union, contrary to the provisions of Nevada's right to work law. While such
argument is not without its appeal, this case comes to us on its own limited facts, supported
by evidence as aforesaid, and for its own limited objective of the coercion practiced.
Regulation of hours and wages is basic with all unions. Regulations with respect to other
matters vary in different localities and with different unions within the same localities, and
many of them have no relation to and are without effect on the general economy and welfare.
For the union to insist that St. John conform to the 40-hour week is a far different thing from
insisting that he join the union, or from insisting that he comply with union regulations other
than hours and wages. Self v. Wisner, 226 Ark. 58, 287 S.W.2d 890. We are therefore
compelled to reject this argument.
This court in Jensen v. Reno Central Trades and Labor Council, 68 Nev. 269, 229 P.2d
908, succinctly evaluated the extent of the holdings in the Hanke and Gazzam cases largely
along the lines discussed above. See also International Brotherhood, Etc. v. Vogt, Inc., 354
U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347; United Association of Journeymen Plumbers &
Steamfitters v. Graham, 345 U.S. 192, 73 S.Ct. 585, 97 L.Ed. 946.
Unless and until the legislature of this state should see fit to enlarge or extend the
proscriptions of its present right to work law so as to make unlawful such union activity as
that here engaged in, which is now lawful, the same may not be enjoined by the courts of
this state.
activity as that here engaged in, which is now lawful, the same may not be enjoined by the
courts of this state.
Judgment affirmed.
____________
76 Nev. 297, 297 (1960) Ervin v. Leypoldt
In the Matter of the Application of Robert
Kenneth Ervin for Writ of Habeas Corpus.
ROBERT KENNETH ERVIN, Appellant v. W. E. LEYPOLDT, Sheriff of
Clark County, Respondent.
No. 4290
June 2, 1960 352 P.2d 718
Department No. 4.
Habeas corpus proceeding by one accused of murder. From order of the trial court denying
writ, petitioner appealed. The Supreme Court, McNamee, C. J., held that fact of death and the
criminal agency of another causing the death constitutes corpus delicti of homicide, and
identity of the perpetrator is not an element of the corpus delicti, and that evidence on
preliminary hearing was sufficient to justify justice of the peace in holding petitioner to
answer for the crime alleged in the complaint.
Affirmed.
Dickerson and Miles, of Las Vegas, for Appellant.
Roger D. Foley, Attorney General; George Foley, District Attorney, Clark County, and
Thomas J. O'Donnell, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Evidence on preliminary hearing was sufficient to justify justice of the peace in holding accused to
answer for murder.
2. Homicide.
The fact of death, and criminal agency of another causing the death constitutes the corpus delicti of
homicide and identity of perpetrator of crime is not an element of such corpus delicti.
3. Habeas Corpus.
On appeal from order denying application for writ of habeas corpus brought on theory that evidence on
preliminary hearing was insufficient, duty of the Supreme Court is not to pass upon sufficiency of the
evidence to warrant conviction, but merely to determine whether there is sufficient legal evidence to make
it appear that a public offense has been committed and that there is sufficient cause to believe the appellant
guilty thereof.
OPINION
This appeal is from an order denying a writ of habeas corpus.
A complaint was filed in the justice's court of Las Vegas township, Clark County, Nevada,
charging appellant with the murder on July 6, 1959, of Dolores Ann Stafford, a female child
of the age of six years. After a preliminary hearing before the justice of the peace appellant
was bound over for trial in the district court.
The only question before us on this appeal is whether or not sufficient evidence was
presented at the preliminary hearing to justify the justice of the peace in holding the appellant
to answer for the crime charged in the complaint.
Juanita Stafford testified that her daughter, Dolores Ann Stafford left her home at about
2:45 P.M. on July 6, 1959 and she did not again see her daughter alive. Shortly thereafter,
appellant upon leaving his apartment walked by Mrs. Stafford without saying a word. On July
7 the body of Dolores Ann Stafford was found in the attic of appellant's locked apartment
where at the time he was living alone and which was in close proximity to the Stafford home.
Evidence was introduced to show that appellant left Las Vegas, Nevada, for Los Angeles,
California, by train at 4:45 P.M. on July 6, 1959 and arrived in Los Angeles at midnight the
same day.
Angeles at midnight the same day. Thereafter and at about 6:30 A.M. on July 7, police officer
James Rose entered appellant's said apartment. The television set was by the front door, there
was broken glass on the floor, a davenport was unfolded with a stain in the center thereof, and
beside the davenport was a pair of child's panties wadded up. On the doorjamb leading into
the bedroom from the living room there was a stain, possibly of blood. On the back porch
there was a long smear of what appeared to be blood by the light switch. The condition of this
apartment as so testified by officer Rose is materially different from what officers Sleeper,
McCauley, and Heenan testified they saw when entering the said apartment at approximately
8:40 P.M. the evening before. None of these last three officers testified as to any stain on the
davenport, as to seeing a pair of child's panties beside the davenport, or as to the position of
the television set by the front door. Officer McCauley testified that the davenport was in an
upright position and that he saw nothing unusual as concerned it at all; that when he returned
the next morning the panties were lying by the couch and had not been there before, and there
was only one light burning while all of the lights were on in the house the night before. He
also noticed that the couch was not in an upright position as it was the night before. Officer
Heenan's testimony similarly related a change in the condition of the apartment from the
evening of July 6 to the morning of July 7. The body of the victim was found the morning of
July 7 and at approximately noon of that day a postmortem examination of the body was
made by Dr. Modglin. He testified that the child died as a result of a wound made by a fairly
dull knife inflicted to the anterior and internal jugular vein, that death would have resulted
within an hour after the wound had been inflicted, that the child had been dead not less than
six hours nor more than thirty hours, that his best estimate as to the time of death was about
14 or 15 hours prior to such examination, and that the wound was not self-inflicted.
With such testimony in the record appellant contends that it would have been impossible
for him to have committed the crime, because 14 or 15 hours prior to the post-mortem
examination would have been approximately 9:00 P. M. on July 6, 1959 and at that time he
would have been on the train.
Other evidence in the record discloses that when officer Rose found the child's body in the
attic he observed a blanket or bedspread and a doll by the side thereof. A knife was found in
the attic and there was evidence that a set of similar knives had been in the possession of
appellant and his wife prior to their separation a few days before. When appellant returned to
Las Vegas on July 8 and while he was enroute to the Las Vegas police station after departing
from the train, in answer to the question asked by one McColl, a newspaper editor, Did you
kill the girl? he answered Yes, and stated he had killed her because he thought she was his
wife and she had left him and the first time he realized that the girl was not his wife was
when he was in California.
Officer Handlon of the Las Vegas Police Department testified that appellant after his
return from Los Angeles stated to him that he killed the girl with a knife, then took her to the
attic, then left the house returning thereto some time thereafter on the same day, and then he
departed for Los Angeles.
A conversation between appellant and Dr. Shannon, a psychiatrist who was examining him
on behalf of the state, had been tape recorded and the tape recording was produced and heard
by the court. This conversation revealed that when the victim came into the apartment, and
asked for appellant's wife, appellant grabbed her when she attempted to leave. He took off her
panties, picked her up and put her in the attic while the little girl's mother was calling her
from outside. There he cut her or hit her with the knife, put the spread over her head, and
threw her doll into the attic.
[Headnotes 1, 2]
There was other and additional evidence in the lengthy transcript. While much of it is
conflicting and, disregarding his admissions, could warrant a finding that appellant was not in
Las Vegas at the time the crime was committed, still there is sufficient evidence to connect
him with the crime. The evidence shows that a knife wound resulted in the death of the victim
and was inflicted through the agency of another. As applied to homicide cases these two
elements, to wit, the fact of death and the criminal agency of another causing the death,
constitute the corpus delicti of the crime. They were proven aliunde any confession or
admission of appellant. The identity of the perpetrator of the homicide is not an element of
the corpus delicti. Sefton v. State, 72 Nev. 106, 295 P.2d 385; State v. Fouquette, 67 Nev.
505, 221 P.2d 404.
The evidence to connect appellant with the commission of the crime other than his
admissions consisted in part of the following: the criminal act took place in appellant's locked
apartment from where he was seen walking soon after the disappearance of the victim; he had
been the sole occupant of the apartment on the day of the homicide; the finding of the child's
doll beside her body and the body covered by the blanket all as related by the appellant in his
admission. See Sefton v. State, supra.
Other facts and circumstances appearing from the record in addition to the evidence
aforesaid would tend to identify appellant as the perpetrator of the crime, but further detailing
the evidence is not required because what has already been set out would in itself be adequate
to justify the conclusion of the justice of the peace that there was sufficient cause to believe
appellant guilty as charged.
[Headnote 3]
In this appeal it is not our duty to pass upon the sufficiency of the evidence to warrant the
conviction of the appellant.
the appellant. All that is required is that there be sufficient legal evidence to make it appear
that a public offense has been committed and that there is sufficient cause to believe the
appellant guilty thereof. Raggio v. Bryan, 76 Nev. 1, 348 P.2d 156.
Affirmed.
____________
76 Nev. 302, 302 (1960) Kennedy v. Kennedy
MAGGI KENNEDY, Appellant, v.
JACK KENNEDY, Respondent.
No. 4267
June 10, 1960 352 P.2d 833
Appeal from the Second Judicial District Court, Washoe County; Clel Georgetta, Judge,
Department No. 3.
Tort action by wife against her husband to recover damages for personal injuries resulting
to her from a bullet which she alleged her husband negligently discharged from a gun. The
trial court rendered judgment for defendant and plaintiff appealed. The Supreme Court,
McNamee, C. J., held that common-law rule that wife cannot sue husband for personal tort
prevails in absence of permissive statute to contrary, and neither statute relating to actions by
or against a married woman nor statute granting wife right to sue alone to enforce against
third persons her common-law right to security of her person is such a statute.
Affirmed.
Nada Novakovich, of Reno, for Appellant.
Goldwater, Taber and Hill, of Reno, for Respondent.
1. Statutes.
Nevada legislature by readopting California Code of Civil Procedure was presumed to have intended to
adopt therewith construction placed on provision thereof by Supreme Court of California. West's Ann.Cal.
Code Civ.Proc. 370; NRS 12.020.
Common-law rule that wife cannot sue husband for personal tort prevails in absence of permissive statute
to contrary, and neither statute relating to actions by or against a married woman nor statute granting wife
right to sue alone to enforce against third persons her common-law right to security of her person is such a
statute. NRS 12.020, 41.170.
OPINION
This is a tort action by a wife against her husband to recover damages for personal injuries
resulting to her from a bullet which she alleges her husband negligently discharged from a
gun. The lower court granted the husband's motion to dismiss the complaint. Appeal is from
the judgment of dismissal.
The sole question involved in this appeal is whether a wife has a cause of action against
her husband for personal injuries caused by his negligence.
At common law there was no cause of action in favor of a wife against her husband
sounding in either tort or contract. Although appellant in her opening brief concedes this to be
the common-law rule, she maintains that the rule has been abrogated in Nevada by NRS
12.020.
1

This statute by its express provisions has modified the common law to the extent of
creating in the wife a cause of action in her favor against her husband when the action
concerns either her separate property or her interest in the homestead. She already had such
right as against third persons at common law, but she was unable to enforce the same until the
enactment of said statute without joining her husband as a party plaintiff. But even this statute
did not empower her to sue alone to enforce against third persons her common-law right to
security of her person. It was not until 1949 that such right was given her by the legislature.
____________________

1
NRS 12.020: Action by or against a married woman. When a married woman is a party, her husband must
be joined with her, except: 1. When the action concerns her separate property, or her right or claim to the
homestead property, she may sue alone. 2. When the action is between herself and her husband, she may sue or
be sued alone. 3.* * *.
right was given her by the legislature. Nev. Stats. 1949, ch. 42 (now NRS 41.170).
By the weight of authority in the United States the rule is that even under statutes similar
to NRS 12.020 the wife has no cause of action against her husband to recover for an injury to
her person. There is a respectable minority, however, which holds that such a statute
impliedly creates in the wife such a cause of action. The annotation in 43 A.L.R.2d 632
summarizes the rule in each of the various states.
It is not necessary to consider at this time the reasons given to support either the majority
or minority rule, because of our conclusion that the majority rule is the law in Nevada.
In the case of Peters v. Peters (1909), 156 Cal. 32, 103 P. 219, 221, 23 L.R.A. (n.s.) 699,
the California Supreme Court held that section 370 of the California Code of Civil Procedure,
the pertinent provisions of which are identical with NRS 12.020, could not be construed to
show an intention to permit actions for tort between husband and wife. It would be a forced
interpretation to attempt to discern in that declaration (Code Civ. Proc. 370), or in any of
the provisions of the Civil Code, an intent to make a departure from the common law so
radical, and so opposed to its general policy, as the authorization of a suit by the husband or
wife against the other for injuries to the person or character. In Watson v. Watson, 39 Cal.2d
305, 246 P.2d 19, in approving its decision in the Peters case the same court said as late as
1952: It is the established rule generally and is the law in California that where the parties
are lawful spouses the one may not sue the other for damages in tort.
[Headnote 1]
In 1911 our legislature readopted the California Code of Civil Procedure, which included
Code Civ. Proc. 370 (1911 CPA 47; 1912 RL 4989; NCL 8546; NRS 12.020);
2
so
we must presume that the legislature in 1911 intended to adopt this statute with the
construction already given it by the supreme court of the parent state.
____________________

2
A similar statute adopted from the Practice Act of California had been in existence in Nevada since 1861
(Sec. 7, Chap. 103, of the 1861 Laws of the Territory of Nevada) and can be found in Cutting, Compiled Laws
of Nevada (1900) sec. 3102.
1911 intended to adopt this statute with the construction already given it by the supreme court
of the parent state. Minden Butter Mfg. Co. v. District Court, 57 Nev. 29, 56 P.2d 1209;
O'Brien v. Commissioners, 41 Nev. 90, 167 P. 1007. See also Williams v. Glasgow, 1 Nev.
533, 538; Whitmore v. Shiverick, 3 Nev. 288, 303; Weil v. Howard, 4 Nev. 384, 393.
Appellant directs attention to the case of Fredrickson-Watson Constr. Co. v. Boyd (1940),
60 Nev. 117, 102 P.2d 627, which approved the rule that damages for personal injuries to a
wife are her separate property.
3
Because of this rule she contends that NRS 12.020 which
gives her the right to sue alone when the action concerns her separate property and which,
when the action is between her and her husband, gives her the right to sue alone, is a positive
declaration changing the common-law rule by permitting her to sue her husband for a
personal tort. The Fredrickson case was a suit by husband and wife against a third person for
personal injuries to the wife negligently inflicted. The said rule emerging therefrom as well as
NRS 41.170 merely express the common-law rule. They did not create any new cause of
action in favor of a wife, nor broaden the scope of NRS 12.020 so as to give her thereunder a
remedy where she had no existing cause of action. Cf. Strong v. Strong, 70 Nev. 290, 267
P.2d 240, 269 P.2d 265.
[Headnote 2]
It is our conclusion that the common-law rule that a wife cannot sue her husband for a
personal tort prevails in Nevada in the absence of a permissive statute to the contrary and
neither NRS 12.020 nor NRS 41.170 is such a statute.
Affirmed.
____________________

3
The ruling of the Fredrickson case in this respect was made statutory in 1949. NRS 41.170.
____________
76 Nev. 306, 306 (1960) Poe v. La Metropolitana Co.
CARL POE Appellant, v. LA METROPOLITANA COMPANIA NACIONAL DE
SEGUROS, S.A., HAVANA, CUBA, Respondent.
No. 4272
June 13, 1960 353 P.2d 454
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge, Department No. 1.
Action on policy insuring truck against fire. The trial court rendered judgment denying
relief and insured appealed. The Supreme Court, Badt, J., held that where insured tried his
action on theory that representations made in his written application for insurance were not
false and could not be held to void the policy, insured did not object to evidence of fraud
upon ground that fraud had not been pleaded and, even in his briefs, filed in trial court,
insured raised no question attacking insufficiency in pleading fraud as a defense, on appeal,
insured could not assume attitude of insufficiency of the special plea of fraud.
Affirmed.
Stewart & Horton, and John J. McQune, of Reno, for Appellant.
Vargas, Dillon & Bartlett, and Alex. A. Garroway, of Reno, for Respondent.
Where plaintiff tried his action on policy insuring truck against fire on theory that representations made in
his written application for insurance were not false and could not be held to void the policy, plaintiff did
not object to evidence of fraud upon ground that fraud had not been pleaded and, even in his briefs, filed in
trial court, the plaintiff raised no question attacking insufficiency in pleading fraud as a defense, on appeal,
plaintiff could not assume attitude of insufficiency of the special plea of fraud. NRCP 15(b), 52(a).
2. Insurance.
In action on policy insuring truck against fire, evidence sustained finding that false representations of
insured, including giving his home address as business and garage address, whereas business was
conducted and truck kept in garage at premises of insured's father-in-law, who purportedly
had sold truck to insured after father-in-law admitted committing arson and his fire
insurance was canceled, induced contract of insurance.
premises of insured's father-in-law, who purportedly had sold truck to insured after father-in-law admitted
committing arson and his fire insurance was canceled, induced contract of insurance. NRCP 8(c), 9(b).
3. Insurance.
In action on policy insuring truck against fire, wherein insurer contended that after insured's
father-in-law's fire policies had been canceled because father-in-law had admitted committing arson, a
scheme was devised whereby truck would be sold to insured, who would be able to procure insurance and
keep trucks running, admission in evidence of written confession of father-in-law that he had been guilty of
arson was not error. NRCP 8(c), 9(b).
OPINION
Appellant has appealed from the district court's judgment denying him relief for loss by
fire of a truck insured by respondent. The loss occurred March 18, 1958.
Although appellant lists the issues involved in this appeal as (1) whether the
representations of appellant in the application for insurance constituted fraud; (2) whether
appellant's conduct in relation to respondent constituted fraud; and (3) whether appellant's
representations in his application for insurance constituted misrepresentations justifying
avoidance of the policy; and although appellant's conclusion is that the evidence does not
justify a finding of fraud, appellant does include in his opening brief the contention that fraud
was not pleaded as an affirmative defense and that this defect in the pleading requires a
reversal.
In support of this contention appellant relies on NRCP Rule 8(c): Affirmative Defenses.
In pleading to a preceding pleading, a party shall set forth affirmatively * * * fraud, * * * and
any other matter constituting an avoidance or affirmative defense. * * * He also relies upon
NRCP Rule 9(b): Fraud * * *. In all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with particularity. * * * The company's answer
pleaded as a special defense:
The company's answer pleaded as a special defense:
In his application for insurance Carl Poe was guilty of misrepresentations. In reliance upon
that application, certificate No. A 1087 was issued by defendant but said certificate was null
and void because of such misrepresentations.
Assuming that by reason of the foregoing rules, as well as often enunciated rules of
pleading prior to the adoption of the rules, that the above-quoted pleading is defective as a
plea of fraud, it is nonetheless clear to us that such defective pleading cannot require a
reversal in the present instant. NRCP Rule 15(b) provides: When issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. * * * [F]ailure * * * to amend [to conform
to the evidence] does not affect the result of the trial of these issues. * * *
At the beginning of the trial, after plaintiff's counsel had stated the nature of his case and
the court asked defendant's counsel to give his version of his defense, the latter stated:
[Plaintiff] made an application for the policy, and we contend that in the application he
made certain representations [or] warranties which became a part of the policy, and that the
policy was issued upon the strength of those representations and warranties, and that they
were wrong. In other words, he misrepresented certain facts * * *.
During the course of the trial when respondent's application for the insurance was offered
in evidence appellant, on objecting, argued: The application is material in this case on one
thing only, and that is this: did materially false representations, warranties, induce said
contract? If they did, then we are out. In other words, the contract never became a contract if
materially false representations induced it * * * [The application] is a representation upon
which the contract is based.
Requests for sundry admissions had been made by both parties before trial. The nature of
these requests, and more particularly the answers thereto, made it abundantly evident that
the asserted fraudulent misrepresentations of the plaintiff would be the basis of the
defendant's defense to the action.
more particularly the answers thereto, made it abundantly evident that the asserted fraudulent
misrepresentations of the plaintiff would be the basis of the defendant's defense to the action.
[Headnote 1]
Although numerous objections were made to the admission of evidence at the trial, it does
not appear that any of such objections were made upon the ground that fraud had not been
pleaded. Appellant tried the case below on the theory that the representations made in his
written application for insurance were not false and could not therefore be held to void the
insurance policy. Even in his briefs filed in the trial court, he raised no question attacking the
insufficiency in pleading fraud as a defense. Under the circumstances he cannot on this appeal
assume the attitude of the insufficiency of the special plea. Rule 15(b) supra. Clark County v.
State, 65 Nev. 490, 199 P.2d 137. See also in general and well-recognized support of this rule
71 C.J.S. 1137, Pleading, sec. 564 (2); id. 1176, Pleading, sec. 592; id. 1146, Pleading, sec.
573.
No formal findings were made by the court and for the facts found we look to the written
opinion and decision. NRCP Rule 52(a).
It is evident that August Manke, the father-in-law of plaintiff, was the owner of the
Diamond T tractor, as well as other trucking equipment; that he had been engaged in the
business of public hauling in Nevada and California for a number of years and was the
possessor of a certain Public Service Commission Certificate, No. 57 which was in effect on
January 28, 1958, when on that day, August Manke executed an assignment of the License
No. 57 and a bill of sale of the trucking equipment, including the Diamond T tractor, with the
understanding being, according to the assignment and bill of sale, that Poe would assume
certain indebtedness against some of the equipment, execute a $12,000 promissory note
without interest payable in three years, and in addition it appears from defendant's Exhibit 6
that the profits from the business were to be turned over to August Manke.
profits from the business were to be turned over to August Manke.
August Manke's insurance on the vehicle in question with the Atlas Insurance
Underwriters was cancelled on January 20, 1958, after August Manke previously had
admitted committing the crime of arson.
While one might expect a certain change in the operation of the business after January 28,
1958, there appears to be none. A random recital of those factors would indicate that the
trucks and equipment remained at Mr. Manke's residence, 597 Grand Canyon Boulevard,
although plaintiff's residence was 1570 Clemson Drive, that business calls concerning the use
of the equipment were made to August Manke as usual; that the books of the business were
kept by Mr. Manke's old bookkeeper until at least June or July, 1958; and that plaintiff didn't
have access to the books until that time, some months after the fire; that while plaintiff had
worked for Manke, while stationed at Stead Air Force Base, he went to work for Shoshone
Bottling Works in 1956, later transferring to Pepsi Cola in 1957, where he had an 8 hour, 5
day a week job and was so employed on March 18th; that Bill and Bob Manke had been
employed prior to January 28, 1958, by August Manke and were so employed after that, and
although it does appear that plaintiff sought to show they were his employees after January
28, 1958, no social security, withholding or other employment taxes were withheld. In fact no
evidence was given to show any labor payments were made by the plaintiff at any time after
that.
A fair appraisal of the entire record clearly indicates to me that matters were the same
after January 28 as they were before.
It is true that plaintiff filed an application to transfer Manke's Public Service Commission
Permit No. 57 on February 5, 1958, but the transfer was not approved until August 25, 1958,
and then only after two conferences with Robert Allen of the Commission.
There is testimony that the green title certificates were endorsed by August and Mabel
Manke, that they were delivered to Bill Manke to take to Carson City to effect a transfer,
that that had not been done by March 1S, and that they were destroyed in the fire.
effect a transfer, that that had not been done by March 18, and that they were destroyed in the
fire.
Perhaps there are other facts, which I have overlooked, but essentially those enumerated
clearly indicate a situation where Mr. Manke could not obtain any insurance on his trucks,
either fire or public liability, as required by the Statutes of Nevada, that a scheme was devised
whereby a sale would ostensibly be effected whereby Poe would become the new owner, who
would then be able to procure insurance and keep the trucks running.
[Headnote 2]
The written application for insurance contained the following:
This application shall not be binding on Underwriters unless and until a policy shall be
issued and delivered in accordance herewith * * * and in accordance with all terms thereof
and the said applicant hereby covenants and agrees to and with Underwriters that the
foregoing statements and answers are a just, full and true exposition of all the facts and
circumstances with regard to the risk to be insured, insofar as same are known, to the
applicant, and the same are hereby made the basis and condition of this insurance.
The learned trial judge commented that in answer to questions, appellant stated on the
application: Has permit in Nevada when in fact he did not; that, having the opportunity of
describing the true facts in answer to other questions, he chose not to answer. The court
referred to the occasions of his giving his home address as his business address and garage
address, whereas the business was conducted and the truck kept in garage, as in the past, at
the premises of appellant's father-in-law; that appellant's statement that he operated all
equipment owned was not in accordance with the fact. The court held that the matters were
material and that they did not give the true picture of ownership, operation, or business
experience; that the representations were not just, full, and true, and that the situation
warranted a conclusion that judgment must be entered for the defendant.
The record contains substantial evidence justifying the trial court's conclusion that the
false representations induced the contract of insurance.
[Headnote 3]
Error is asserted in the admission in evidence, over objection, of the written confession of
August Manke that he had been guilty of arson on January 7, 1958 when he set fire to his
home. As a result of this confession, the insurance company concealed the then existing fire
insurance. The only grounds of the objection were that the written confession was hearsay
and upon the further ground that it is not relevant or germane to any issue in this case.
Appellant's failure to make a full disclosure made the statement relevant to the issue of
misrepresentation. It was not offered to prove the truth of the matters therein stated, but only
the fact of its execution. Whether true or not, it tended to justify respondent's cancellation of
the earlier policies issued to Manke. It was properly admitted.
McNamee, C.J., and Pike, J., concur.
____________
76 Nev. 312, 312 (1960) Wood v. State
ROBERT CHARLES WOOD, Appellant, v.
No. 4269
June 16, 1960 353 P.2d 270
Appeal from the Eighth Judicial District Court, Clark County; John C. Mowbray, Judge,
Department No. 3.
Defendant was convicted of embezzlement. The trial court rendered judgment and
defendant appealed. The Supreme Court held that under statute to effect that when offense is
described with sufficient certainty to identify the act, an erroneous allegation as to person
injured shall not be deemed to be material, failure to allege identity of civic organization as
a legal entity was immaterial and did not go to sufficiency of information charging that
defendant had unlawfully appropriated moneys entrusted to him by the civic
organization.
76 Nev. 312, 313 (1960) Wood v. State
allege identity of civic organization as a legal entity was immaterial and did not go to
sufficiency of information charging that defendant had unlawfully appropriated moneys
entrusted to him by the civic organization.
Affirmed.
Robert Santa Cruz, of Las Vegas, for Appellant.
Roger D. Foley, Attorney General, George Foley, District Attorney, Clark County, and
Charles L. Garner, Deputy District Attorney, Clark County, for Respondent.
1. Indictment and Information.
Under statute to effect that when offense is described with sufficient certainty to identify the act, an
erroneous allegation as to person injured shall not be deemed to be material, failure to allege identity of
civic organization as a legal entity was immaterial and did not go to sufficiency of information charging
that defendant had unlawfully appropriated moneys entrusted to him by the civic organization. NRS
173.280, 174.310, 175.560.
By failing to demur to information, defendant waived all defects therein except as to sufficiency of
information to state a public offense. NRS 174.310.
3. Embezzlement.
Evidence sustained conviction for embezzlement. NRS 173.280.
4. Embezzlement.
In prosecution for embezzlement of civic organization's funds entrusted to defendant, bank check of
organization signed by its treasurer and president sufficiently evidenced fact that organization was capable
of owning property in view of defendant's admissions that he received money or credits therefor. NRS
173.280.
OPINION
Per Curiam:
Defendant was charged by information with the crime of embezzlement in that he being a
member of the Las Vegas Junior Chamber of Commerce, and having been entrusted with the
sum of $355 lawful money of the United States, said money being the property of the said Las
Vegas Junior Chamber of Commerce, wilfully, unlawfully and feloniously [did] appropriate
and use the said monies for purposes other than that for which the same was entrusted,
with the intent to steal the same and defraud the owner thereof."
76 Nev. 312, 314 (1960) Wood v. State
unlawfully and feloniously [did] appropriate and use the said monies for purposes other than
that for which the same was entrusted, with the intent to steal the same and defraud the owner
thereof.
After a trial by jury, defendant was found guilty and this is an appeal from the judgment
based on jury verdict.
Several errors have been assigned, but by deciding whether the information sufficiently
charges an offense and the proof sustains the charge, all of the matters contained in the
assigned errors will have been disposed of.
Defendant contends that the failure of the information to designate the nature of the Las
Vegas Junior Chamber of Commerce as a corporation or other entity capable of owning
property renders it fatally defective, and therefore the allegations in the information were
insufficient to give the trial court jurisdiction.
Many authorities sustaining such contention can be found in the annotation appearing in
88 A.L.R. 485. These authorities are not controlling in Nevada because of statute.
[Headnote 1]
NRS 173.280 provides: Erroneous statement as to person injured: Effect. When an
offense involves the commission of or an attempt to commit private injury, and is described
with sufficient certainty in other respects to identify the act, an erroneous allegation as to the
person injured, or intended to be injured, shall not be deemed to be material.
Under a statute containing identical provisions, it was held in People v. Cloud, 100
Cal.App. 792, 281 P. 79, 80, that an information which charged the defendant with stealing a
rug, the property of William Fox, was sufficient, though the evidence disclosed the fact that
the rug was rented, not by William Fox, but by William Fox Film Corporation, which
corporation had possession of the rug at the time it was stolen. The court in that case said:
[T]he undoubted weight of authority is to the effect that, where the identification of the
transaction which resulted in the commission of the offense is established to the extent
that in the event of a second prosecution of the defendant for the same offense he may
readily protect himself by proper plea, the allegation in the first action as to ownership of
the stolen property is immaterial."
76 Nev. 312, 315 (1960) Wood v. State
which resulted in the commission of the offense is established to the extent that in the event
of a second prosecution of the defendant for the same offense he may readily protect himself
by proper plea, the allegation in the first action as to ownership of the stolen property is
immaterial. And in People v. Leong Quong, 60 Cal. 107, the California Supreme Court said:
The name of the owner of the property stolen is not a material part of the offense charged.
It should be noted also that the rule relied on by appellant, though favored in early
decisions of some 10 or 11 states, has not met with general acceptance. In People v. Mead,
200 N.Y. 15, 92 N.E. 1051, 140 Am.St.Rep. 616, in which the defendant was indicted for
grand larceny for having appropriated to his own use a sum of money the property of The
People's Mutual Life Insurance Association and League' and in which the statute defined
embezzlement from any person, association or corporation, the court of appeals of New
York said: Under the old rule which prevailed long ago in England, which required great
particularity in the description of persons, it was necessary to allege the incorporation of a
corporation. But that rule has not been generally accepted in this country, though there is
much contrariety between the decisions of the various states. It concluded that the failure to
charge that the League was an association or corporation was not vital.
In McCowan v. State, 58 Ark. 17, 22 S.W. 955, although the court held the indictment to
be insufficient as laying the ownership of the embezzled property simply in W. L. Connevey
& Co.,
1
the court quoted Wharton Crim. Pl. sec. 166b as finding the reason for the rule
enabling the defendant successfully to plead his acquittal or conviction should he be again
indicted for the same offense, being the same reason stated in People v. Cloud, supra.
____________________

1
The Arkansas court in reaching this conclusion relied upon earlier California cases which did not have the
approval of People v. Cloud and other later California cases. Furthermore the same court reversed itself in this
respect in Hughes v. State, 109 Ark. 403, 160 S.W. 209.
76 Nev. 312, 316 (1960) Wood v. State
In the case of Evershaw v. Moran, 57 Nev. 417, 65 P.2d 877, 878, this court had occasion
to consider NCL 10854 (now NRS 173.280) and said: It is the evident purpose of this statute
to obviate mistrials where the defendant is in no way misled by such a mistake as appears in
this case. That the defendant was not misled appears from his own testimony and from the
fact that he makes no contention that he was. He is here relying upon a bare technicality,
which the statute above quoted sought to and does overcome.
[Headnote 2]
Defendant did not at his arraignment either before or after he entered his not guilty plea
nor did he at any time during the presentation of the evidence at the trial raise any objection
to the form or sufficiency of the information. Objection to the information as being defective
was not raised until after all the evidence was in. That defendant was not misled by any
defects in the information appears from this conduct of the defendant. The information, it
must be admitted, is far from being a model, but by failing to demur to the information
defendant waived all defects therein except as to the sufficiency of the information to state a
public offense. NRS 174.310; State v. Derst, 10 Nev. 443; State v. O'Flaherty, 7 Nev. 153;
see also NRS 175.560. For the reasons hereinbefore stated, the failure to allege the identity of
the Las Vegas Junior Chamber of Commerce as a legal entity is immaterial and does not go to
the sufficiency of the information.
If it may be said that NRS 173.280, People v. Cloud, supra, People v. Leong Quong, supra,
and Evershaw v. Moran, supra, modified and relaxed the common-law rule only with respect
to the identity of the person from whom the embezzlement is charged, it appears to us to be a
logical sequence or a natural extension of those authorities to hold that the old rule is likewise
modified and relaxed with reference to the necessity for allegation and proof of the corporate
or other entity of the person from whom the money or property was embezzled. In the instant
case the identification of the transaction, People v. Cloud, supra, is such, both in the
information and the proof, that in the event of a second prosecution for the same offense
he could readily protect himself by proper plea.
76 Nev. 312, 317 (1960) Wood v. State
information and the proof, that in the event of a second prosecution for the same offense he
could readily protect himself by proper plea.
During the trial the state offered evidence to prove that defendant became a member of the
Las Vegas Junior Chamber of Commerce March 25, 1959. On April 8, 1959 he was
appointed Helldorado Float Chairman by the President of the Junior Chamber and on April
16, 1959, he received a check from the Junior Chamber in the sum of $450 to pay the
expenses anticipated in preparing a float for the Helldorado Parade. On April 23, 1959 while
he was in the county jail charged with an offense unconnected with the present case, he was
told that the Junior Chamber wanted its money back. On April 30, 1959 defendant refunded
$95 to the Junior Chamber,
2
and at that time stated he no longer had money sufficient to
make restitution in full, that the money was gone, and that it was not used for the purpose for
which it was entrusted. No work whatsoever was ever done on the float for this $450.
[Headnotes 3, 4]
This evidence was sufficient to prove all of the material allegations contained in the
information. State v. Trolson, 21 Nev. 419, 32 P. 930. The bank check of the Las Vegas
Junior Chamber of Commerce, signed by its treasurer and president, sufficiently evidenced
the fact that the Las Vegas Junior Chamber of Commerce was capable of owning property in
view of defendant's admissions that he received money or credits therefor.
Judgment affirmed.
____________________

2
The refund was in the form of his personal bank check for this amount. The balance in defendant's bank
account was insufficient to cover this check until the President of the Junior Chamber made a deposit of $16.66
to defendant's account.
____________
76 Nev. 318, 318 (1960) Johnson v. Johnson
FREDERICK RICHARD JOHNSON, Appellant, v.
BOBBIE BEATRICE JOHNSON, Respondent.
No. 4273
June 17, 1960 353 P.2d 449
Appeal from judgment of the Second Judicial District Court, Washoe County; A. J.
Maestretti, Judge, Department No. 2.
Action by wife for a divorce, wherein husband filed a counterclaim. The trial court
rendered judgment granting plaintiff a divorce and other relief, and defendant appealed. The
Supreme Court, Pike, J., held, inter alia, that the evidence sustained finding and judgment
granting wife a divorce on ground of extreme cruelty, and that awarding community property
asset, consisting of a coffee shop, to husband and requiring him to pay wife in installments
$5,000 for her interest therein and one-half of balance owing on community indebtedness,
incurred in connection with acquisition of coffee shop and secured by deed of trust on
dwelling house, owned by wife as her separate property, constituted in effect a division of
community property within the jurisdiction of court under statute. NRS 125.150.
Judgment affirmed.
(Rehearing denied July 15, 1960.)
Belford, Anglim & Brown, of Reno, for Appellant.
Parraguirre, Parraguirre & Parraguirre, of Reno, for Respondent.
1. Divorce.
Where trial court in granting wife a divorce found that allegations of her complaint as to extreme cruelty
of husband were true but made no finding on issue of adultery, divorce must have been granted on ground
of extreme cruelty, though conclusions and decree did not specifically so state, and failure to find on issue
of adultery must be construed as showing failure of wife to establish such cause for divorce.
2. Divorce.
In divorce action by wife, evidence sustained finding that acts of husband, relied on by wife as
constituting extreme cruelty and hence ground for divorce, were without cause or
provocation by wife.
acts of husband, relied on by wife as constituting extreme cruelty and hence ground for divorce, were
without cause or provocation by wife.
3. Divorce.
In divorce action by wife, evidence showed more than a single act of violence by husband, constituting
extreme cruelty as ground for divorce, though all such acts occurred on a single occasion.
4. Divorce.
The character of a single act and the circumstances under which it was committed may be such as
reasonably to cause apprehension of a repetition and be sufficient to establish extreme cruelty as ground for
divorce.
5. Divorce.
In divorce action by wife, trial court, having both parties before it, was in a position to evaluate the
consequences of husband's unprovoked conduct as basis for causing wife to have a continuing
apprehension of the repetition of such conduct.
6. Divorce.
Evidence sustained finding and judgment granting wife a divorce on ground of extreme cruelty.
7. Divorce.
Record on appeal from judgment granting wife a divorce on ground of extreme cruelty sufficiently
disclosed that issue of extreme cruelty was tried with consent of the parties, as shown by their respective
testimony, though further testimony by wife, after she had testified concerning various acts of cruelty, had
been objected to on ground that complaint did not sufficiently allege extreme cruelty as ground for divorce,
and where husband did not raise the point on appeal, under rules of procedure, issue of extreme cruelty
must be treated in all respects as though it had been raised in the pleadings. NRCP 15(b).
8. Divorce.
In granting a divorce and awarding to husband community property asset, consisting of coffee shop,
which it was impracticable for the parties to continue operating together and which could not be divided,
ordering husband to pay wife in installments $5,000 for her interest in coffee shop and one-half of the
balance owing on community indebtedness, incurred in connection with acquisition of coffee shop and
secured by deed of trust on dwelling house, owned by wife as her separate property, constituted in effect a
division of community property within statutory jurisdiction of court. NRS 125.150.
9. Divorce.
The amount of community property indebtedness must be considered in disposing of community property
under statute in granting a divorce. NRS 125.150.
OPINION
[Headnote 1]
This is an appeal by the husband from a judgment of the trial court granting a divorce and
other relief to the wife. The wife's amended complaint alleged in Paragraph VIII thereof,
That on or about the 25th day of May, 1958, the defendant struck and hit the plaintiff and as
a result of such striking and hitting, the plaintiff suffered a fractured rib, bruises about her
head and body and was otherwise injured. Paragraph IX alleged, That since the marriage of
the parties, defendant has committed adultery, remaining unforgiven. The husband's answer
denied the allegations of cruelty and adultery and his counterclaim alleged extreme cruelty on
the part of the wife as a cause for divorce. The court, sitting without a jury, found in favor of
the wife on the issue of divorce. It found, That since the marriage of the parties, defendant
has treated plaintiff with extreme cruelty as alleged in Paragraph VIII of plaintiff's complaint,
and that such allegations are true, and that all of the acts of extreme cruelty were without
cause or provocation on the part of plaintiff and have caused said plaintiff intense pain,
anguish and suffering and seriously interfered with and impaired her health and made further
cohabitation impossible. As the court made no finding with reference to adultery, it
necessarily appears that the divorce was granted on the ground of extreme cruelty although
the conclusions and decree do not specifically so state. Also, the failure of the court to find on
the issue of adultery must be construed as showing a failure on the part of the wife to
establish that cause for divorce. State ex rel. Department of Highways v. Olsen, 76 Nev. 176,
351 P.2d 186; Peterson v. Wiesner, 62 Nev. 184, 146 P.2d 789; Burlington Transportation
Co. v. Wilson, 61 Nev. 22, 24, 110 P.2d 211, 114 P.2d 1094.
[Headnote 2]
Appellant contends that the finding of extreme cruelty is not supported by the evidence.
is not supported by the evidence. As the basis for this contention, he urges that the
uncontradicted testimony of the husband establishes that any of the acts of cruelty found by
the court were provoked by conduct on the part of the wife. As to the occurrence of May 25,
1958, the testimony of the wife and that of the husband is diametrically opposed with
reference to hitting, biting, kicking, striking, provocation or lack thereof. There was ample
evidence before the trial court to sustain its finding that the acts committed by the husband
were without cause or provocation on the part of the wife.
[Headnotes 3, 4]
The husband contends that the finding of a single act of violence by him does not support
the judgment of divorce. The evidence shows more than a single act of violence, although it is
true all occurred on a single occasion. However, the character of a single act and the
circumstances under which it was committed, may be such as reasonably to cause
apprehension of a repetition and suffice to establish the ground of extreme cruelty. Kapp v.
District Court, 31 Nev. 444, 103 P. 235; Crabtree v. Crabtree, 154 Ark. 401, 242 S.W. 804,
806, 24 A.L.R. 912.
[Headnote 5]
The trial court had both parties before it and was in a position to evaluate the
consequences of the husband's unprovoked conduct as a basis for causing the wife to have a
continuing apprehension of the repetition of such conduct by the husband. Cf. Coolman v.
Coolman, 76 Nev. 43, 348 P.2d 471.
[Headnote 6]
The finding of the trial court that the husband treated the wife with extreme cruelty, and
the judgment thereon, must be sustained.
[Headnote 7]
After the wife had testified concerning the occurrences of May 25 and other acts of cruelty
on the part of the husband, further testimony by the wife was objected to on the ground that
the complaint did not sufficiently allege extreme cruelty as a cause for divorce. Appellant
does not raise this point on appeal, and we find it unnecessary to consider the sufficiency
of respondent's pleading of the cause of action upon which she prevailed.
does not raise this point on appeal, and we find it unnecessary to consider the sufficiency of
respondent's pleading of the cause of action upon which she prevailed. The record sufficiently
discloses that the issue of extreme cruelty was tried with the consent of the parties as shown
by their respective testimony. Accordingly, such issue must be treated in all respects as
though it had been raised in the pleadings. NRCP 15(b).
During coverture the parties had acquired a coffee shop and certain other assets, all of
which were community property. Prior to the marriage the wife owned a dwelling house,
constituting her separate property. There was an indebtedness of about $4,000 on the dwelling
house at the time that the parties intermarried. In connection with the acquisition of the coffee
shop the parties to this appeal, after their marriage, borrowed $5,700 with a deed of trust on
the dwelling house to secure payment of the same. Some $4,000 of the proceeds of this loan
was used to pay off the preexisting indebtedness on the property, and about $1,500 was
applied to either the purchase or improvement of the coffee shop.
[Headnote 8]
The husband and wife ceased to live together on May 18, 1958 and after that date the
husband continued to operate the coffee shop while the wife, living separate and apart from
him, had employment at a casino. The testimony of the wife, with reference to more than
three years during which she worked long hours at the coffee shop, and her other
contributions to such community property, were before the court. After granting an absolute
divorce to the wife the divorce decree made provision for the custody and support of a minor
child and provided that the husband pay to the wife the sum of $5,000, * * * as and for
plaintiff's interest in the business known as Bobbies Coffee Shop, * * * in installments of
$1,000 each, on or before specified dates, and also that the husband pay to the wife one half
of the balance owing on the loan and secured by the deed of trust on the wife's house, such
payments to be made in monthly installments.
in monthly installments. The decree also provided for a specific division to be made between
the parties of certain corporate stock shown to have been their community property.
Appellant contends that the trial court was without power to direct appellant to pay to
plaintiff $5,000 for her interest in the coffee shop or to pay one half of the balance unpaid on
the promissory note. In support of this contention he cites the decision of this court in Thorne
v. Thorne, 74 Nev. 211, 326 P.2d 729, as restricting the power of the court in granting a
divorce, to the granting of alimony, to the disposition of the community property and to the
setting apart of such portion of the husband's separate property for the support of the wife as
appears proper. Appellant argues that, as there was nothing in the pleadings, evidence, or
findings that there was any money belonging to the community, the payments required to be
made by defendant after the divorce would be from his separate funds, and that such
provisions of the judgment were not within the jurisdiction of the court.
We are unable to agree with appellant's contention. Appellant does not dispute that the
coffee shop was a community property asset of the parties. Evidence as to the value of this
community asset varied but, under any construction of the evidence, the coffee shop appears
to have had a substantial value. Defendant had listed it for sale with a real estate firm for
$20,000. The husband had operated it for a number of years and, from all that appears, it
would have been impracticable to undertake a division of this asset. The relationship of the
parties was such as to have completely discounted the continued operation of the coffee shop
with both of them participating.
Accordingly, we view the action taken by the trial court as being in effect a division of
community property, with the husband receiving the community property asset and being
required to pay the wife for her interest in the same. As above noted, the trial court so stated
in this portion of the judgment. Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355.
[Headnote 9]
At the time of the trial the $5,700 secured indebtedness on the wife's separate property had
been reduced, by payments made, to a balance remaining of about $4,000. The court ordered
the husband to pay to the wife one half of such remaining balance of the indebtedness, or
what amounted to $2,000, in monthly payments of $50 each. This indebtedness was an
indebtedness of the community, incurred by the parties in 1953, and in ordering the husband
to pay his one half of such indebtedness the court was likewise within its jurisdiction in
making a division of community property. In determining the value of the community
property assets, the amount of community property indebtedness had to be considered, and
the court took this means of equalizing the division. NRS 125.150. Leland v. Leland, 71 Nev.
346, 291 P.2d 905; Ormachea v. Ormachea, supra.
Thorne v. Thorne, supra, relied upon by respondent, may be distinguished. In that case this
court pointed out that there was no community property owned by the parties and, likewise,
as there was no issue concerning the rights or needs of the wife for continuing support, the
court under NRS 125.150 was lacking in statutory power to make a division of the husband's
separate property.
Judgment affirmed.
____________
76 Nev. 325, 325 (1960) Ortiz Co. v. Hotel Flamingo
BENJAMIN L. ORTIZ CO., a Nevada Corporation, Appellant, v. HOTEL FLAMINGO, Inc.,
a Nevada Corporation, Respondent.
No. 4270
June 20, 1960 353 P.2d 268
Action to recover the reasonable value of surveying services allegedly performed and for
materials furnished in connection therewith, at special instance and request of defendant. The
trial court entered judgment for defendant, and plaintiff appealed. The Supreme Court, Pike,
J., held that substantial evidence supported finding that the chief engineer for a large
resort-type hotel operated by defendant was neither an express agent nor an ostensible agent
for defendant at time he contracted with plaintiff for the surveying services in question.
Judgment affirmed.
John W. Bonner, of Las Vegas, for Appellant.
Morse, Graves & Compton and James H. Phillips, of Las Vegas, for Respondent.
Principal and Agent.
In action to recover the reasonable value of surveying services allegedly performed and for materials
furnished in connection therewith, at special instance and request of defendant, substantial evidence
supported finding that the chief engineer for a large resort-type hotel operated by defendant was neither
an express agent nor an ostensible agent for defendant at time he contracted with plaintiff for the
surveying services in question.
OPINION
Appellant, plaintiff in the trial court, sought judgment against respondent in the sum of
$1,813.23 as the reasonable value of surveying services alleged to have been performed and
materials furnished in connection therewith, at the special instance and request of
respondent.
performed and materials furnished in connection therewith, at the special instance and request
of respondent.
The trial court denied the relief sought by appellant and entered judgment in favor of
respondent. This is an appeal from that judgment and also from the order denying appellant's
motion for new trial.
Appellant had sought to prove that one Garvin, chief engineer for the large, resort-type
hotel operated by respondent, was acting as agent for respondent when he contracted with
appellant to perform the surveying services.
However, the basis of the trial court's decision and judgment on the merits and also for its
denial of the motion for new trial, was that appellant had failed to prove that the surveying
services had been performed at the request of respondent. The court, sitting without a jury, in
finding appellant's proof concerning Garvin's agency to be insufficient, indicated its view of
the evidence as showing that a certain firm of architects, rather than respondent, had engaged
appellant's services. Thereafter, appellant took the deposition of one Honnold, a member of
the architectural firm referred to by the court, and used it in support of the motion for new
trial. Appellant introduced the architect's deposition for the purpose of clarifying the
testimony of one Parvin, president of respondent corporation, which testimony was readily
susceptible to the interpretation that respondent had paid the architects for the surveying
services rendered by appellant. The additional objective sought to be attained through the
architect's testimony was to rebut Garvin's testimony in which he disclaimed having
participated in contracting for appellant's services.
Garvin had testified that he had introduced Ortiz to the two men representing the
architects, * * * the people who wanted the surveythey were out there, and they would
show him [Ortiz] what they wanted done. His testimony had denied any recollection of the
particular conversation which had taken place when appellant's bill for services was presented
to Parvin by appellant's representative. Testimony produced on behalf of appellant had been
that, although Parvin had then informed appellant's representative in Garvin's presence
that respondent had not authorized the services and would not pay for them, Garvin
thereafter requested an itemized bill from appellant and suggested to Ortiz that the
amount of the bill be reduced, stating that the "Flamingo people" considered it excessive.
appellant's representative in Garvin's presence that respondent had not authorized the services
and would not pay for them, Garvin thereafter requested an itemized bill from appellant and
suggested to Ortiz that the amount of the bill be reduced, stating that the Flamingo people
considered it excessive. Appellant also had produced testimony that, on a previous occasion,
Garvin had engaged appellant to do surveying for the hotel and that respondent had paid
appellant $255.49 for the same, about May 29, 1958. This date of payment was only a few
days prior to the discussions had between Garvin and Ortiz and the architects' representatives.
Although Parvin did not deny the May 29, 1958 payment, he stated that any such payment, if
made, would have been made only after certain hotel procedures relating to the authorization
of work had been complied with. No hotel records substantiating this contention were
produced and Ortiz testified he had no knowledge of any such requirements.
Honnold's deposition denied that the architects had contracted for appellant's services. He
also testified as an expert witness concerning customary practice in the locality that the
owner, rather than the architect, paid for engineering costs and that the architects had not
received any payment from respondent for services in connection with the proposed
convention hall. In that connection he testified that his firm had not presented any bill to
respondent for such services and, by way of explanation, stated that he considered any
services which had been so rendered a relatively small matter. His testimony was that his
firm, however, had been paid for services in connection with the construction of a new wing
for about 92 rooms added to respondent's hotel after the convention hall project had been
abandoned by respondent.
The written decision of the trial court denying the motion for new trial states that
Honnold's testimony had the effect of reconciling in the mind of the court any apparent
contradiction of testimony relating to payment of architect's fees by respondent. Such
decision pointed out that Honnold's testimony and certain affidavits also used in support of
the motion did not suffice to change the previously expressed view of the court that
appellant had failed to prove agency on the part of Garvin.
the previously expressed view of the court that appellant had failed to prove agency on the
part of Garvin.
If it be conceded that there was failure of proof of an express agency existing between
respondent as principal and Garvin as agent, there was before the trial court evidence in
support of an ostensible agency on the part of Garvin. Such evidence showed the performance
of the prior surveying services by appellant at the instance of Garvin, and that the same had
been paid for by respondent. In Harrah v. Home Furniture, 67 Nev. 114, 117, 214 P.2d 1016,
1017, this court said, [A] single act of the agent and a recognition of it by the principal may
be so unequivocal and of so positive and comprehensive a character, as to place the authority
of the agent to do similar acts for the principal beyond any question. The value of such proof
does not depend so much on the number of acts as upon their character.' However, the trial
court, in entering judgment in favor of respondent, apparently considered the previous
occasion of payment insignificant compared to the present situation where the value of the
services was claimed to be $1,813.23, and found that appellant had not made a sufficient
showing of any actual or apparent authority on the part of Garvin to bind respondent to a
contract requiring payment of such a sum. Later, even with the testimony of Honnold before
it, the trial court denied appellant's motion for a new trial. Although, as triers of the facts, by
reason of the evidence relating to ostensible agency on the part of Garvin, we might have
come to a different conclusion, such consideration does not permit us to disturb the judgment
of the court as substantial evidence supports both the findings and such judgment. Mahan v.
Hafen, 76 Nev. 220, 351 P.2d 617. In denying the motion for new trial the court was within
the exercise of its discretion and no abuse of that discretion appears.
Judgment affirmed.
____________
76 Nev. 329, 329 (1960) United Tungsten v. Corporation Service
UNITED TUNGSTEN CORPORATION, a Nevada Corporation, and GEORGE G. MOORE,
Appellants, v. CORPORATION SERVICE, Inc., a Nevada Corporation, Respondent.
No. 4274
June 21, 1960 353 P.2d 452
Department No. 2.
Action on contract for employment of plaintiff corporation by individual and corporate
defendant for purpose of sending out certain literature to various stockholders. The trial court
entered judgment for plaintiff corporation and defendant corporation and individual defendant
appealed. The Supreme Court, Badt, J., held that where complaint alleged cause of action in
quantum meruit and during trial counsel for defendants agreed that the only issue in case was
the matter of compensation to be received for services, statement would be treated as having
raised issue as though pleadings were amended to conform to evidence, and evidence
sustained finding as to the reasonable value of plaintiff corporation's services in sending out
letters in question.
Affirmed.
John W. Bonner, of Las Vegas, for Appellants.
Paul L. Larsen, of Las Vegas, for Respondent.
Appeal and Error.
Where action was brought by plaintiff corporation to recover for services performed for defendant
corporation and individual defendant in sending out notices to certain stockholders, and during trial
attorney for defendants agreed that the only issue was the matter of compensation for services for which
plaintiff claimed it was to get $5 each for the letters mailed and defendants claimed plaintiff was to
receive $5 only for each transaction completed, and there was substantial evidence to support court's
formal findings that sum claimed by plaintiff corporation was in accordance with plaintiff's version of
contract, case called for application of rules requiring that when an issue not raised by pleading is raised
by consent of parties it shall be treated as if raised in pleadings, failure to amend pleadings to
conform to evidence does not affect result of trial of the issues, and rule prohibiting
disturbance of judgment for sundry errors unless error appeared to be inconsistent
with substantial justice.
amend pleadings to conform to evidence does not affect result of trial of the issues, and rule prohibiting
disturbance of judgment for sundry errors unless error appeared to be inconsistent with substantial
justice. NRCP 15(b), 52, 61.
OPINION
We have before us for determination the validity of appellants' contention that the
judgment must be reversed because it is based upon an express contract between the parties,
whereas respondent sought judgment upon a quantum meruit. We have decided that the
contention is without merit and that the judgment must be affirmed.
The action is concerned with the employment of Corporation Service, Inc., by United
Tungsten Corporation and George G. Moore for the purpose of sending out certain literature
to the stockholders of Atlas Consolidated Tungsten Mines, Inc., and to stockholders of
Petroleum Investment Trust, Ltd., describing the plans of United Tungsten for the issuance
and sale of Tungsten stock and involving a proposed exchange for Atlas and Petroleum stock.
Blank forms were enclosed for such purpose and sundry instructions given. The nature of the
proposals is unimportant. The necessary forms to be used were to be prepared and printed,
printing and postage to be furnished by Corporation Service, the necessary bank account to be
opened for deposit of moneys received, correspondence to be engaged in, letters of transmittal
to be forwarded, with copies to United Tungsten for its information, and other incidental
service. The arrangement was made between Henry O. Hart, as president of Corporation
Service, and George G. Moore, as president of United Tungsten. These two persons were the
main witnesses for the respective parties at the trial.
The complaint is divided into two counts. In count 1 plaintiff alleges a cause of action in
quantum meruit for the reasonable value of its services, in the sum of $1,995, in sending out
the material described, and further alleges that after such services had been performed,
United Tungsten had agreed to pay said sum therefor.
alleges that after such services had been performed, United Tungsten had agreed to pay said
sum therefor. In count 2 plaintiff alleges that appellant Moore individually requested plaintiff
to perform such services, that the reasonable value thereof was $1,995, and that Moore, when
requesting such service, personally and individually expressly agreed to pay the reasonable
value of the services and agreed that such reasonable value was $1,995; that after crediting
payment of $815, there was a balance due of $1,180. Defendants answered and
counterclaimed, seeking return of part of the $815 they had paid. From the allegations of such
counterclaim and the allegations and denials of the reply thereto, it became evident that the
real dispute of the parties was whether, under the terms of the oral contract, Corporation
Service was to receive $5 for each of the letters mailed or $5 for each completed transaction.
The trial had not progressed to any great length before, on ruling on an objection as to the
relevancy of certain evidence offered by the plaintiff, the learned trial judge stated: It seems
to me the only thing before the court is the matter of compensation. I think the services were
rendered and [plaintiff] claims [it] was to get $5.00 [each] for three hundred and ninety- [nine
letters mailed]; [it] was paid so much and they owe a balance, and the [defendants claim
plaintiff was] to receive $5.00 for each one completed. That is the only difference. Mr.
Bonner (attorney for defendants): That is the only issue. Court: That is the only issue
before the court.
This court has repeatedly given effect to the provisions of NRCP Rule 15(b) to the effect
that when issues not raised by the pleadings are treated by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the pleadings and that,
though the pleadings may be amended to conform to the evidence, failure to amend does not
affect the result of the trial of such issues. Johnson v. Johnson, 76 Nev. 318, 353 P.2d 449.
We have also given effect on many occasions to NRCP Rule 61 (a repetition of earlier
statutes) prohibiting the disturbance of a judgment for sundry errors of the trial court, unless
such errors appeared to this court inconsistent with substantial justice, and that this
court must disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.
sundry errors of the trial court, unless such errors appeared to this court inconsistent with
substantial justice, and that this court must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.
The court, in its written decision, held that the sum claimed by the plaintiff was the
reasonable value of its services. See NRCP Rule 52. In its formal findings the court found
that the sum claimed by plaintiff was in accordance with the plaintiff's version of the contract.
The written decision rejected the defendants' version. Both on the issue of the reasonable
value of the services and on the issue of the precise contract entered into, the evidence was in
conflict.
This is a typical case calling for the application of Rules 15(b), 52, and 61, supra. In any
event, as the trial court accepted plaintiff's testimony as to the stipulated price of its services,
this became the quantum meruit. Warren v. Glasgow Exploration Co., 40 Nev. 103, 160 P.
793; Maitia v. Allied L. & L. S. Co., 49 Nev. 451, 248 P. 893.
____________
76 Nev. 332, 332 (1960) Reno Newspapers v. Bibb
RENO NEWSPAPERS, INC., a Corporation, and NEVADA INDUSTRIAL COMMISSION,
Appellants, v. FORREST M. BIBB, Guardian ad Litem for JOHN STEPHEN BIBB,
Respondent.
No. 4286
July 1, 1960 353 P.2d 458
Motion to dismiss an appeal from the Second Judicial District Court, Washoe County; Clel
Georgetta, Judge, Department No. 3.
Action for personal injuries. The trial court entered judgment from which defendants
appealed. On motion to dismiss appeal, the Supreme Court, McNamee, C. J., held that
where defendant appealed from judgment without designating in his notice of appeal the
part thereof from which appeal was taken, and judgment was in three paragraphs, the
first of which merely stated court's reasons upon which the other two paragraphs were
based, the second of which was in favor of defendant, and the third of which was not
against defendant, but was against another defendant, restrictive nature of notice of
appeal left nothing for Supreme Court to consider or adjudicate.
to dismiss appeal, the Supreme Court, McNamee, C. J., held that where defendant appealed
from judgment without designating in his notice of appeal the part thereof from which appeal
was taken, and judgment was in three paragraphs, the first of which merely stated court's
reasons upon which the other two paragraphs were based, the second of which was in favor of
defendant, and the third of which was not against defendant, but was against another
defendant, restrictive nature of notice of appeal left nothing for Supreme Court to consider or
adjudicate.
Appeal dismissed.
Bible, McDonald and Jensen, of Reno, for Appellant Reno Newspapers, Inc.
William J. Crowell, of Carson City, for Appellant Nevada Industrial Commission.
Gordon W. Rice, of Reno, for Respondent.
Under rule requiring that notice of appeal designate the judgment or part therefrom appealed from, only
those parts of judgment which are included in notice of appeal will be considered by appellate court. NRCP
73(b).
Where defendant appealed from judgment without designating in his notice of appeal the part thereof
from which appeal was taken, and judgment was in three paragraphs, the first of which merely stated
court's reasons upon which the other two paragraphs were based, the second of which was in favor of
defendant, and the third of which was not against defendant, but was against another defendant, restrictive
nature of notice of appeal left nothing for Supreme Court to consider or adjudicate. NRCP 73(b).
OPINION
In the court below plaintiff (respondent Bibb) sued Reno Newspapers, Inc., Nevada
Industrial Commission, and others on account of injuries received by him when he was
knocked to the ground by an automobile while he was delivering newspapers to subscribers
of the Nevada State Journal, a newspaper owned by Reno Newspapers, Inc.
he was delivering newspapers to subscribers of the Nevada State Journal, a newspaper owned
by Reno Newspapers, Inc.
After a pre-trial conference, the court on January 5, (1960) entered a judgment:
1. That as between plaintiff and Reno Newspapers, Inc., the compensation and benefits
provided by the Nevada Industrial Insurance Act are exclusive;
2. That the action be dismissed as to Reno Newspapers, Inc.;
3. That plaintiff be awarded judgment against the Nevada Industrial Commission for the
full amount of compensation and benefits due him under the provisions of the Nevada
Industrial Insurance Act. [NRS 616.010 et seq.]
After rendition of judgment plaintiff's attorney served on defendants a notice of entry of
judgment which stated that On January 5, 1960, the court duly entered a judgment
dismissing said action as to Reno Newspapers, Inc., and entered its judgment against Nevada
Industrial Commission and in favor of plaintiff.
Reno Newspapers, Inc., has appealed from that certain final judgment made and entered
on the 5th day of January 1960 in favor of the plaintiff and against this defendant. The notice
of appeal is silent with respect to said judgment of dismissal. A separate and independent
appeal has been taken by Nevada Industrial Commission.
The matter now before this court for determination is a motion by respondent to dismiss
the appeal of Reno Newspapers, Inc.
Obviously Reno Newspapers, Inc. has not appealed from paragraph 2 of said judgment
because paragraph 2 is an adjudication in its favor and against plaintiff, or from paragraph 3
which is a judgment not against Reno Newspapers, Inc. but against the Nevada Industrial
Commission. Paragraph 1 is not a judgment in favor of plaintiff and against Reno
Newspapers, Inc. but is merely the court's reason upon which those parts of the judgment in
paragraphs 2 and 3 are based.
[Headnotes 1, 2]
Rule 73 (b) NRCP provides that the notice of appeal shall designate the judgment or part
thereof appealed from. Only those parts of the judgment which are included in the notice of
appeal will be considered by the appellate court. Scheeline Banking & Trust Co. v.
Stockgrowers' & Ranchers' Bank of Reno, 54 Nev. 346, 16 P.2d 368; Glassco v. El Sereno
Country Club, Inc., 217 Cal. 90, 17 P.2d 703; Walta v. Bayer Construction Co., 185 Kan.
408, 345 P.2d 631; Borgen v. Wiglesworth, 185 Kan. 108, 340 P.2d 365; Walton v. Blauert,
256 Wis. 125, 40 N.W.2d 545.
The restrictive nature of the notice of appeal leaves nothing for this court to consider or
adjudicate.
It is ordered that the appeal of Reno Newspapers, Inc. be dismissed.
____________
76 Nev. 335, 335 (1960) Barnato v. District Court
BARBARA B. BARNATO, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT of
the State of Nevada, in and for the COUNTY OF WASHOE, and HONORABLE CLEL
GEORGETTA, Judge Thereof, Respondents.
No. 4313
July 7, 1960 353 P.2d 1103
Prohibition proceeding to prevent District Court from proceeding in husband's divorce
action on ground that court had no jurisdiction over wife. The Supreme Court, McNamee, C.
J., held that under rule permitting certain defenses, including (2) lack of jurisdiction over
person, (3) insufficiency of process, and (4) insufficiency of service of process, to be asserted
by motion and providing that defenses 2-4 are waived if joined with one or more defenses
other than defenses 2-4, motion by wife to dismiss husband's divorce action because of
lack of jurisdiction over her person, lack of sufficiency of process, and insufficiency of
service of process, and to quash service made on her in Nevada, constituted "general
appearance" invoking general jurisdiction of the court.
motion by wife to dismiss husband's divorce action because of lack of jurisdiction over her
person, lack of sufficiency of process, and insufficiency of service of process, and to quash
service made on her in Nevada, constituted general appearance invoking general
jurisdiction of the court.
Original proceedings in prohibition. Alternate writ vacated and proceedings
dismissed.
(Petition for rehearing denied September 7, 1960.)
Adams, Reed and Bowen, of Reno, for Petitioner.
Springmeyer, Thompson and Dixon, of Reno, for Respondents.
1. Divorce.
In determining whether wife's motion to dismiss complaint in husband's divorce action constituted
general appearance and had effect of bringing her within jurisdiction of court, Supreme Court was not
bound by advisory committee's intention not to adopt federal rule permitting motions to dismiss in cases of
defective service. NRCP 12(b).
2. Divorce.
Under rule permitting certain defenses, including (2) lack of jurisdiction over person, (3) insufficiency of
process, and (4) insufficiency of service of process, to be asserted by motion and providing that defenses
2-4 are waived if joined with one or more defenses other than defenses 2-4, motion by wife to dismiss
husband's divorce action because of lack of jurisdiction over her person, lack of sufficiency of process, and
insufficiency of service of process, and to quash service made on her in Nevada, constituted general
appearance invoking general jurisdiction of the court. NRCP 12(b).
OPINION
Petitioner seeks a writ of prohibition to prevent respondent court from proceeding in a
divorce action on the ground that it has no jurisdiction over petitioner.
Michael J. Barnato commenced an action for divorce against petitioner in the respondent
court. Petitioner, the defendant in the action, made the following motions in said court: 1.
1. To dismiss the action because of lack of jurisdiction over the person of defendant.
2. To dismiss the action because of lack of sufficiency of process.
3. To dismiss the action because of insufficiency of service of process.
4. To quash the service made on her at Las Vegas, Nevada.
Respondent court granted the motion to quash on the ground that plaintiff Barnato had
fraudulently enticed defendant into the State of Nevada. At the same time it denied the
motions to dismiss the action, and held that the defendant by moving to dismiss the entire
action had made a general appearance and had placed herself within the general jurisdiction
of the court for further proceedings.
The sole question to decide is whether the motions to dismiss the action constituted a
general appearance and had the effect of bringing defendant within the jurisdiction of the
court.
Prior to the adoption of the Federal Rules of Civil Procedure in this state, a motion to
quash service of summons was the proper method of attacking an improper service and did
not constitute a general appearance. Brockbank v. Second Judicial District Court, 65 Nev.
781, 201 P.2d 299. However the rule in most jurisdictions has been that a motion to dismiss
an action even when based on a ground which would warrant the granting of a motion to
quash service of summons constituted a general appearance regardless of the fact that it was
designated a special appearance. Clawson v. Boston Acme Mines Development Co., 72 Utah
137, 269 Pac. 147, 59 A.L.R. 1318; Ricks v. Wade, 97 Utah 402, 93 P.2d 479; Application of
Goodrich, 51 Wyo. 463, 68 P.2d 597; Dallas v. Luster, 27 N.D. 450, 147 N.W. 95. Petitioner
claims that Rule 12(b) NRCP has changed the law in this respect and that now the objection
to an improper service of summons may be made by a motion to dismiss the action or by a
motion to quash the service. This rule reads in part as follows: "{b) How Presented.
(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading,
whether a claim, counterclaim, crossclaim, or third party claim, shall be asserted in the
responsive pleading thereto if one is required, except that the following defenses may at the
option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter
appearing on the face of the pleading, (2) lack of jurisdiction over the person, (3)
insufficiency of process, (4) insufficiency of service of process, (5) failure to state a claim
upon which relief can be granted, (6) failure to join an indispensable party. A motion making
any of these defenses shall be made before pleading if a further pleading is permitted. No
defense or objection is waived by being joined with one or more other defenses or objections
in a responsive pleading or motion, except defenses numbered (2)-(4) are waived if joined
with one or more defenses other than defenses (2)-(4), or by further pleading after denial of
such defenses. If a pleading sets forth a claim for relief to which the adverse party is not
required to serve a responsive pleading, he may assert at the trial any defense in law or fact to
that claim for relief.
In the federal courts a motion to dismiss the action under Rule 12(b) based on improper
service of process does not constitute a general appearance. In fact Form 19, Federal Rules of
Civil Procedure, 28 U.S.C.A., expressly prescribes this method of procedure in case of
defective service of process.
1

Arizona is in accord with the federal decisions in this respect. In Onan v. Superior Court,
65 Ariz. 255, 179 P.2d 243, the Arizona Supreme Court held that Rule 12(b) constituted a
departure from the practice in effect in Arizona prior to its adoption of the federal rules. It is
to be noted, however, that Rule 84 of the Federal Rules of Civil Procedure was omitted from
the Arizona Rules of Civil Procedure. The reviser's note with respect thereto states that
Rule S4 is omitted because federal forms of pleading are available to lawyers who desire
to follow them.
____________________

1
Rule 84 F.R.C.P., 28 U.S.C.A., provides as follows: The forms contained in the Appendix of Forms are
sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules
contemplate.
thereto states that Rule 84 is omitted because federal forms of pleading are available to
lawyers who desire to follow them. This in effect is an implied approval of the federal forms.
The Nevada Rules of Civil Procedure contain Rule 84 but some of the forms contained in
its Appendix of Forms differ materially from those in the federal Appendix of Forms. In
particular, Form 19 of the Nevada Appendix of Forms deletes entirely the form for a motion
to dismiss an action for improper service of process. In this connection the Advisory
Committee Notes relating to Rule 12(b) which follow the Rules and Forms, state: The
federal rule is further revised to provide that the defenses of lack of jurisdiction over the
person, of insufficiency of process, and of insufficiency of service of process, are waived if
joined with one or more defenses other than those defenses, or by further pleading after denial
of such defenses. This, in substance, is intended to retain existing practice on motions to
quash * * *. Cf. Sec. 8573, N.C.L. 1929.
2

[Headnote 1]
It appears to us that the Advisory Committee intended to retain the practice of employing
motions to quash service of process and not to adopt the federal rule permitting motions to
dismiss in cases of defective service. While we are not bound by the Committee's intentions,
we do feel that the situation existing in this state requires an interpretation of Rule 12(b)
consistent with the Advisory Committee's intentions.
[Headnote 2]
The district courts of this state frequently exercise jurisdiction over cases in rem and quasi
in rem as differentiated from the common practice of the federal courts. In such cases to
permit a defendant to invoke the power of the court to dismiss the entire action on account
of a defect in the process or the service thereof would produce harsh and undesirable
results such as liability on attachment and garnishment undertakings, complications in
lien foreclosure cases, and would cause unnecessary refiling of complaints requiring
payment of additional fees or preclude refilings where the statute of limitations could be
invoked.
____________________

2
NCL 8573 provides that after the filing of the complaint a defendant in the action may appear by answer,
demurrer, or notice of motion filed in the cause, excepting motions to quash service, or denying the sufficiency
of process or the jurisdiction of the court over the subject-matter or the person, whether the summons has been
issued or not, and such appearance shall be deemed a waiver of summons.
of the court to dismiss the entire action on account of a defect in the process or the service
thereof would produce harsh and undesirable results such as liability on attachment and
garnishment undertakings, complications in lien foreclosure cases, and would cause
unnecessary refiling of complaints requiring payment of additional fees or preclude refilings
where the statute of limitations could be invoked.
We therefore conclude that Rule 12(b) as adopted in this state has not changed the general
rule in existence at the time of its adoption which is to the effect that a defendant who
requests relief additional to that necessary to protect him from defective service of process
renders his appearance general.
It is apparent not only from the wording of her motions in the divorce action but also from
the grounds upon which they were based that petitioner was seeking relief other than the
quashing of the service of the summons, to wit, dismissal of the action. Her affidavit attached
to her written motion and made a part thereof challenged the jurisdiction of the court over the
subject matter of the action by stating that plaintiff's Nevada residence, upon which
jurisdiction for the divorce action was based, was simulated, and that for approximately
twenty years plaintiff has been and now is a resident of California; that he has substantial
assets in California and none in Nevada; and that an action for divorce is pending between the
parties in California.
In our opinion petitioner invoked the general jurisdiction of the court in the divorce action
and therefore the present proceedings in prohibition must be dismissed.
The alternative writ of prohibition is vacated and the proceedings dismissed.
____________
76 Nev. 341, 341 (1960) Delaney v. Shellabarger
ALVIN DELANEY and LUCILLE DELANEY, Appellants, v. DORIS T.
SHELLABARGER, Respondent.
No. 4219
July 8, 1960 353 P.2d 903
Appeal from judgment of the First Judicial District Court, Douglas County; Frank B.
Gregory, Judge, Department No. 1.
Action for injunctive relief and damages allegedly suffered when a water pipeline leading
to plaintiff's land was cut. From a judgment of the trial court granting damages and injunctive
relief, defendants appealed. The Supreme Court, Pike, J., held that where vendor, under
whom plaintiff claimed easement to maintain water pipeline, had agreed to convey to
purchaser any 520-acre tract which purchaser might choose out of a total of 3,518.91 acres
which vendor owned, and where contract of sale was recorded, the contract was valid and
enforcible and the recordation placed anyone succeeding to vendor's rights, including
plaintiff, on notice that purchaser or anyone succeeding to purchaser's interest was entitled to
receive a conveyance to 520 acres of the type specified in the contract notwithstanding any
subsequent conveyance of vendor.
Reversed and remanded.
Ralph M. Tucker, of Reno, for Appellants.
Paul D. Laxalt, of Carson City, for Respondent.
1. Vendor and Purchaser.
A contract for the sale and purchase of a part of a larger parcel of land, which gives the purchaser the
right to select the particular part, does not for that reason alone render the contract unenforcible.
2. Vendor and Purchaser.
Where vendor agreed to convey to purchaser any 520-acre tract which purchaser might choose out of a
total of 3,518.91 acres which vendor owned, and where contract of sale was recorded, the contract was
valid and enforcible and the recordation placed anyone succeeding to vendor's rights on notice that
purchaser or anyone succeeding to purchaser's interest was entitled to receive a conveyance to
520 acres of the type specified in the contract notwithstanding any subsequent
conveyances of vendor.
entitled to receive a conveyance to 520 acres of the type specified in the contract notwithstanding any
subsequent conveyances of vendor. NRS 111.320.
OPINION
This is an appeal from a judgment of the trial court granting to respondent permanent
injunctive relief, $85 special damages, and $5,000 punitive damages.
The singular surname is used throughout this opinion to represent both husband and wife.
Respondent's complaint alleged the granting on August 22, 1955 to respondent and her
deceased husband of a right-of-way passing through a portion of the NW 1/4, of the NW 1/4,
Sec. 25, T. 13 N., Range 18 E., M.D.B. & M.; the construction by respondent of a pipeline
over the same to respondent's land adjacent thereto; that during the period January 1 through
June 15, 1958 defendants had deliberately and maliciously cut and otherwise damaged said
pipeline, thereby stopping the flow of water to plaintiffs' dwelling house and land.
Appellants' answer, after denying the allegations of respondent's complaint, by way of
counterclaim, sought damages alleged to have been caused to defendants by reason of a
restraining order which had been issued by the trial court upon the application of respondent.
The trial court recognized the validity of the grant of right-of-way dated August 22, 1955,
and refused to recognize the validity of a certain contract and option dated March 1, 1954 by
reason of its being * * * so indefinite in its terms as to be unenforcible in its executory parts
because of a right of selection given the purchaser as hereinafter detailed.
Appellants in support of their claim that their land was not servient to the right-of-way had
relied upon the recordation on August 2, 1954 of such contract as having given constructive
notice of certain rights on the part of one Palady so as to defeat the validity of the grant of the
right-of-way subsequently made to respondent. Under the terms of such contract one West
had agreed to sell to Palady and Palady had agreed to buy from West 520 acres out of a
tract of 3,51S.91 acres and to pay for the same within a period of five years, with the
right of selection of the particular 520 acres given to Palady.
the terms of such contract one West had agreed to sell to Palady and Palady had agreed to buy
from West 520 acres out of a tract of 3,518.91 acres and to pay for the same within a period
of five years, with the right of selection of the particular 520 acres given to Palady.
On August 25, 1954 West deeded to Palady a tract containing 40 acres. The particular land
covered by such conveyance is not involved in the present controversy, and the conveyance
appears to have significance only as having apparently been made pursuant to the contract
above referred to.
Placerville Lumber Company, a partnership, by deed from West dated March 30, 1955,
had received title to all of the lands designated in the West-Palady contract, with the
exception of the 40-acre tract previously conveyed by West to Palady. The grant of easement
made by the partnership to respondent on August 22, 1955 was recorded on August 25, 1955.
The record shows appellants to be the purchasers of a ten-acre tract under a contract of sale
with Lindberg Investment company as seller. Although such contract, and certain of the other
mesne conveyances under the title derived by Palady from West, contain reservations of
rights-of-way, the language of such reservations shows each of them to have been personal to
the particular grantor and his successors, and that the descriptions contained no exception of
the right-of-way claimed by respondent.
Appellants urge that the trial court erred in finding the West-Palady agreement of March 1,
1954 to be unenforcible.
Appellants contend that the easement would materially affect the right of Delaney to a
conveyance of title free from restrictions on the use of the land, and that both Placerville
Lumber Company as grantor of the easement and Shellabarger as grantee were chargeable
with knowledge that Palady, and his successors in interest, should he select this particular
tract, were entitled to receive it free from any such restriction. The point is well taken.
[Headnotes 1, 2]
The authorities are to the effect that a contract for the sale and purchase of a part of a
larger parcel of land, which gives the purchaser the right to select the particular part, does not
for this reason alone render the contract unenforcible. DeRemer v. Anderson, 41 Nev. 287,
169 P. 737, 25 A.L.R. 775; Calder v. Third Judicial District Court, 2 Utah 2d 309, 273 P.2d
168, 46 A.L.R. 2d 887; Kelley v. Russell, 50 Cal.App.2d 520, 123 P.2d 606; Fleishman v.
Woods, 135 Cal. 256, 67 P. 276; Brown v. Munger, 42 Minn. 482, 44 N.W. 519; Dozier v.
Troy Drive-In Theatres, 265 Ala. 93, 89 So.2d 537; Peckham v. Lane, 81 Kan. 489, 106 P.
464, 25 L.R.A., N.S., 967; 49 Am.Jur. 660, Statute of Frauds 350. Because we construe the
contract to be valid and enforcible, when recorded it gave notice of its provisions to
respondent at the time respondent received her grant of easement. NRS 111.320. In effect it
gave notice that should Palady or anyone succeeding to his rights under his said contract with
West, select and pay for the particular areas, selected and paid for in accordance with the
contract, such person would then be entitled to receive a conveyance of the character
specified in the contract.
The trial court, having construed the West-Palady contract as void, found it unnecessary to
consider any of the conveyances from Palady made subsequent thereto, and found in effect
that West's deed to Placerville Lumber Company gave the latter and its successors in interest,
including respondent, rights paramount to Palady and his successors in interest. Accordingly,
this case is remanded to the trial court with instructions to grant a new trial to determine the
rights of the parties in view of our holding herein that the West-Palady contract is valid and
enforcible. Reversed and remanded. No costs allowed.
____________
76 Nev. 345, 345 (1960) Commercial Credit Corp. v. Smith
COMMERCIAL CREDIT CORPORATION, a Maryland Corporation, Appellant, v. CLARK
SMITH, dba PHOENIX AUTO AUCTION, and TED CLAREMONT, Respondents.
No. 4276
July 8, 1960 353 P.2d 905
Department No. 2.
Action by credit corporation against automobile owner, who had recovered possession of
automobile after having delivered possession of it to used car dealer, who sold automobile
and assigned contract for unpaid balance to credit corporation, for the return of the
automobile or its value. The trial court rendered judgment for automobile owner, and credit
corporation appealed. The Supreme Court, Badt, J., held that where owner never was paid for
automobile, and never delivered title certificate to dealer, and where neither purchaser of
automobile nor credit corporation inquired about any indicia of title other than possession,
mere delivery of the possession did not so clothe dealer with indicia of title as to estop owner
from asserting his title as against credit corporation.
Affirmed.
Calvin C. Magleby, of Las Vegas, for Appellant.
James L. Wadsworth, of Las Vegas, for Respondents.
1. Estoppel.
Where automobile owner, who had delivered possession of automobile to used car dealer, never was paid
for automobile, and never delivered title certificate thereto to used car dealer, and neither purchaser of
automobile from used car dealer nor credit corporation inquired about any indicia of title other than
possession, mere delivery of possession of automobile did not so clothe dealer with indicia of title as to
estop owner from asserting his title as against credit corporation which advanced money upon assignment
to it by dealer of contract for sale by such dealer to third-party purchaser. NRS 96.320, 482.400,
482.405.
2. Automobiles.
Where automobile owner never was paid for automobile and never delivered title certificate to used car
dealer, and used car dealer sold automobile, and assigned contract for unpaid balance
to credit corporation, and where neither purchaser of automobile nor credit
corporation inquired about any indicia of title other than possession, credit
corporation was not in possession of an innocent purchaser, and took contract from
dealer at its own risk.
used car dealer sold automobile, and assigned contract for unpaid balance to credit corporation, and where
neither purchaser of automobile nor credit corporation inquired about any indicia of title other than
possession, credit corporation was not in possession of an innocent purchaser, and took contract from
dealer at its own risk. NRS 96.320, 482.400. 482.405.
OPINION
The question presented is whether the owner of an automobile who sells a car to a
used-car-lot dealer, with title certificate attached to a 20-day draft on the purchaser sent to a
bank with instructions to deliver the certificate on payment of the draft, permitting the
purchaser in the meantime to hold the car on his sales lot for sale, has so clothed the
purchaser with indicia of title as to estop the owner from asserting his title as against a credit
company that advances money upon an assignment to it by the used-car-lot dealer of a
contract of sale from such dealer to a third party purchaser. Neither the credit company,
plaintiff below and appellant herein, who asserts the estoppel as against the true owner, in
buying the paper, nor the purchaser, in buying the car from the used-car-lot dealer, inquired
about a registration certificate or title certificate or assignment or transfer thereof or
registration of the car, or any other indicium of title other than possession.
As stated the question seems confusing. It will be simplified by a statement of the facts.
Smith, a wholesale and retail dealer in used cars in Phoenix, Arizona, was the owner of the
car in question. He sold to Claremont, a used-car dealer in Las Vegas. He delivered
possession of the car but retained the title certificate. He drew a 20-day draft on Claremont,
attached the certificate of title to the draft, and sent it to a Las Vegas bank, with instruction
for the delivery of the certificate on payment of the draft within 20 banking daysotherwise
to return the certificate. Claremont sold the car to one Fields for a down payment of $432 and
a contract to pay the balance. Claremont then assigned the Fields contract to Commercial
Credit Corporation, receiving from that company $SS9.90.
Fields contract to Commercial Credit Corporation, receiving from that company $889.90. In
Claremont's assignment to Commercial Credit of the Claremont-Fields contract, Claremont
assigned all his right, title, and interest in the car, warranted that he had complied with all
laws with respect to the sale, that he was transferring clear title, subject only to the contract,
that the lien of his balance due from Fields appeared on the certificate of title, as required by
law, as a first lien, and that all of Claremont's obligations in the contract had been fully
performed, and that he made such warranties for the purpose of inducing Commercial Credit
to purchase the contract. These warranties were all false. Neither Fields, in buying the car
from Claremont, nor Commercial Credit Corporation, in buying from Claremont its contract
of sale to Fields, made any inquiry as to registration of the vehicle or possession of the
certificate of title or any assignment thereto by the original owner to Claremont. Claremont,
of course, could not have assigned or delivered or even exhibited a certificate of title or a
certificate of ownership, as he had not obtained the same by payment of the draft.
Claremont, after obtaining the $432 from Fields and the $889.90 from Commercial Credit
Corporation, absconded. Smith came to Las Vegas, made contact with Fields, exhibited to
Fields Smith's ownership certificate, and Fields voluntarily returned the car to Smith.
Commercial Credit sued Smith for the return of the car or its value.
[Headnotes 1, 2]
The district court rendered judgment for the defendant, Smith, holding that he was not
estopped, it being concluded that something more than mere possession and control is
necessary, and possession must be accompanied by indicia of title to protect a person who has
dealt with one in possession; that [Commercial Credit] is not in the position of an innocent
purchaser and under the facts of this case took the mortgage from [Claremont] at its own
risk. He held further, that the fact that neither Claremont nor Fields was in possession of
any indicia of ownership created a defect in the title which was sufficient to put
[Commercial Credit] upon inquiry to ascertain the true facts."
any indicia of ownership created a defect in the title which was sufficient to put [Commercial
Credit] upon inquiry to ascertain the true facts. We are in accord with this holding.
Appellant relies on Heaston v. Martinez, 3 Utah 2d 259, 282 P.2d 833, 835, which
involved a similar transactiona sale to a dealer with draft attached to certificate of title, and
sale by the dealer to a third party, except that assignment by the third party to a credit
company was not involved. The Utah court enunciated the general principle that a person
cannot transfer a better title to personal property than he has, but applied the exception,
unless the owner of the goods is by his conduct precluded from denying the seller's authority
to sell. The quotation is from Utah's Uniform Sales Act, U.C.A. 1953, 60-2-7, and the same
provision appears in Nevada's Uniform Sales Act, NRS 96.320. It further applied the rule that
where one of two innocent parties must suffer through the act of a third person, the loss
should fall on the one who by his conduct created the circumstances which enabled the third
party to perpetrate the wrong or cause the loss, citing Al's Auto Sales v. Moskowitz, 203 Okl.
611, 224 P.2d 588; L. B. Motors, Inc. v. Prichard, 303 Ill.App. 318, 25 N.E.2d 129; and
Garrett v. Hunter (Miss.), 48 So.2d 871.
In direct opposition to the Heaston case, and in accord with the theory of the two
dissenting opinions in that case,
1
is the case of Moberg v. Commercial Credit Corporation,
230 Minn. 469, 42 N.W.2d 54, 55. The syllabus by the court in that case reads as follows: In
order that the real owner of personal property may be estopped from asserting his title against
a person who has dealt with one in possession in faith of his apparent ownership, it is the
general rule that something more than mere possession and control is necessary.
____________________

1
The opinion was written for the majority of the court by Cowley, District Judge. Justice Crockett was
disqualified, and Justice Henriod and Chief Justice McDonough dissented. The dissenting judges held that where
the true owner retained title and all evidence of ownership save bare possession and refused to make the
purchaser a transferee or an owner, the bare transfer of possession without other indicia of ownership, was
insufficient to constitute an estoppel.
mere possession and control is necessary. The authorities indicate that possession must be
accompanied by indicia of title. To like effect are Deahl v. Thomas (Tex. Civ. App.), 224
S.W.2d 293, and Bustin v. Craven, 57 N.M. 724, 263 P.2d 392.
It should be remembered that this suit was not commenced by the so-called innocent
purchaser but by the Commercial Credit Corporation to whom Claremont had assigned the
Fields contract. It is quite patent that Commercial Credit, instead of looking for indicia of
ownership, looked to the written warranties of Claremont. As it turned out, these guaranties
were worthless. We cannot accept the contention of appellant that Smith was the one
responsible for Commercial Credit Corporation's loss. In point is the last paragraph of the
opinion in Moberg v. Commercial Credit Corporation, supra: It is our opinion that defendant
here was not in the position of an innocent purchaser, but was an experienced loan agency
engaged in the business of financing new and used automobiles. If it chose to attempt to take
a mortgage from the dealer under the facts and circumstances of this case, it did so at its own
risk. The foregoing is the more in point by reason of appellant's insistence that the
assignment to Commercial Credit of the Claremont-Fields contract was a security
transaction. If so, then the appellant's contention that plaintiff is estopped is all the less valid.
See Tropical State Bank v. Sunshine Motor Co., 137 Fla. 703, 188 So. 595; Pacific Finance
Corporation v. Hendley, 119 Cal.App. 697, 7 P.2d 391; National Guarantee & Finance Co. v.
Pfaff Motor Car Co., 124 Ohio St. 34, 176 N.E. 678.
So far as the provisions of our statutes bear upon the plea of estoppel, we need only refer
to those parts of NRS 482.400 and 482.405 which were in effect at the time of the
transactions in question. The provisions of subsections 1 and 2 of NRS 482.400 are in
substance the same as subsections (a) and (b), and the provisions of NRS 482.405 are the
same as subsection (c) of Stats. 1931, 322, Ch. 202 15, 1931 NCL 4435.14, An Act * * *
to provide for the transfer of interest in and to motor vehicles * * *."
motor vehicles * * *. These require that every transferee shall, upon transferring his interest
or title to another, * * * indorse the certificate of ownership as herein provided and deliver
the certificate of ownership to the new legal owner and the certificate of registration to the
new owner. Commercial Credit Corporation was charged with knowledge of this
requirement. Nor can appellant derive any comfort from Nevada's Uniform Sales Act. NRS
96.320, under subtitle Transfer of Title. Sale by a Person Not the Owner, reads in part as
follows: 1. Subject to the provisions of this chapter, where goods are sold by a person who is
not the owner thereof, and who does not sell them under the authority or with the consent of
the owner, the buyer acquires no better title to the goods than the seller had, unless the owner
of the goods is by his conduct precluded from denying the seller's authority to sell. 2. Nothing
in this chapter, however, shall affect: (a) The provisions of any factor's acts, recording acts, or
any enactment enabling the apparent owner of goods to dispose of them as if he were the true
owner thereof. Unless Smith provided appellant, through Claremont and Fields, with a duly
executed assignment or transfer of Smith's certificate of title, the estoppel recited in the
foregoing would not be effective.
If, on the other hand, as held in some of the authorities, the laws of the state where the
transaction took place will govern, we find similar provisions in 9 Arizona Revised Statutes,
Annotated, 311, Motor Vehicle Registration, Transfer of Title, 28-314. The vehicle in
question bore Arizona license plates. Under Arizona, as well as Nevada law, Commercial
Credit was charged with knowledge of the statutory requirement. See Bustin v. Craven, 57
N.M. 724, 263 P.2d 392.
The holding of the court below to the effect that respondent herein, the legal owner of the
car in question, was not estopped from asserting his title, was correct.
____________
76 Nev. 351, 351 (1960) Bekins Van & Storage Co. v. Anderton
BEKINS VAN & STORAGE CO., a Corporation, Appellant v. FANNY MILLER
ANDERTON and DEIRDRE COAKLEY, Respondents.
No. 4258
July 15, 1960 354 P.2d 188
Action by shippers against common carrier for value of goods destroyed by fire in carrier's
agent's warehouse at destination. From judgment of the trial court for shippers, carrier
appealed. The Supreme Court, Badt, J., held that under Western States Movers' Conference
Tariff defining storage-in-transit as the holding of shipment in warehouse pending further
transportation, where goods were shipped by each of two shippers to himself in another state
and were to be stored in carrier's agent's warehouse, until shipper should call for them, and no
further transportation by the carrier was contemplated, the storage was not storage-in-transit,
goods were no longer in interstate commerce, transportation contract provision limiting
liability for loss was not applicable, and carrier was liable for full value of goods destroyed by
its agent's negligence.
Affirmed.
Jones, Wiener and Jones, of Las Vegas, for Appellant.
Foley Bros., of Las Vegas, for Respondents.
1. Carriers.
Under Western States Movers' Conference Tariff defining storage-in-transit as the holding of shipment in
warehouse pending further transportation, where goods were shipped by each of two shippers to himself in
another state and were to be stored in carrier's agent's warehouse, until shipper should call for them, and no
further transportation by the carrier was contemplated, the storage was not storage-in-transit, goods were
no longer in interstate commerce, transportation contract provision limiting liability for loss was not
applicable, and carrier was liable for full value of goods destroyed by its agent's negligence. Interstate
Commerce Act, 1 et seq., 49 U.S.C.A. 1 et seq.; NRS 95.010 et seq., 95.070.
2. Principal and Agent.
In action by shipper against common carrier for value of goods destroyed by fire in carrier's agent's
warehouse at destination, evidence sustained finding that warehouseman was agent of carrier.
OPINION
Respondents entered into a written contract with appellant, by way of a certain combined,
uniform household goods bill of lading and expense bill and a certain confirmation of
order, agreement for services, and rate quotation for the transportation of certain household
goods from Los Angeles, California, to Las Vegas, Nevada. After arrival in Las Vegas and
before the goods were removed from the warehouse the goods were destroyed by fire.
Respondents sued for the value of the goods less the amounts that were paid them by
appellant. Anderton recovered judgment for $12,913.44 and Coakley for $592.79, both
amounts bearing interest.
The only question presented on appeal is the legal construction of the instruments referred
to, particularly the confirmation of the order, agreement for services, and rate quotation, in
connection with provisions of the federal interstate commerce act, 49 U.S.C.A., sec. 1 et seq.,
and regulations made by the Interstate Commerce Commission thereunderall in the light of
the facts and circumstances connected with the transportation and storage of the goods and
their destruction by fire while in the warehouse.
The contract of the parties provided in effect that, in consideration of a minimum charge
for transportation and insurance premium, the agreed value of the goods was fixed at 30 cents
per pound on a stated weight of 5,200 pounds. Liability for loss was limited to this value.
Respondents contended successfully in the lower court that this limitation was effective
only during the period the goods were being transported, that when they reached their
destination the provision in the agreement relating to transportation terminated, and that
thereupon the state law rather than the federal interstate commerce act and the
regulatory rules, regulations, and provisions thereunder, became applicable. Under the
provisions of the Warehouse Receipts Law, NRS 95.010 et seq., a warehouseman is
required to deliver goods upon proper demand therefor or, upon failure to do so, becomes
liable for the value thereof upon an implied contract for the ordinary storage of goods for
hire.
relating to transportation terminated, and that thereupon the state law rather than the federal
interstate commerce act and the regulatory rules, regulations, and provisions thereunder,
became applicable. Under the provisions of the Warehouse Receipts Law, NRS 95.010 et
seq., a warehouseman is required to deliver goods upon proper demand therefor or, upon
failure to do so, becomes liable for the value thereof upon an implied contract for the ordinary
storage of goods for hire.
It is appellant's contention that, under the contract, the goods were considered in transit for
a 60-day period following delivery to the warehouse and that during such period the interstate
character of the shipment continued; that, as the goods were destroyed 40 days after delivery
to the warehouse, they were still legally in transit and thus subject to the contract limitation of
liability. Such amount had already been paid respondents by appellant.
The trial court found that, after delivery of the household goods to Atlas Storage &
Transfer, Inc., in Las Vegas, they were no longer in transit, that the limitation of liability
clause which pertained to the shipping portion of the contract did not pertain to the storage,
and that appellant's liability for the full value of the goods resulted from the conduct of its
agent, Atlas Storage & Transfer, Inc.
We turn, first, to some of the salient facts which furnish the backdrop for the picture and
action that developed. The respondents, then residing in Los Angeles, had secured
employment in Las Vegas and respondent Anderton purchased a duplex there. As they
expected to start their employment in Las Vegas in February 1954, respondent Anderton
called appellant to arrange for the storage of the goods of respondents until the duplex was
ready for occupancy. The circumstances were detailed to appellant's agent in Los Angeles and
their desire that the goods be stored until called for upon completion of the duplex which was
anticipated to be some 60 to 120 days thereafter. Some discussion was had as to whether it
would be preferable to store the goods in Los Angeles or in Las Vegas, and storage at Las
Vegas was selected. The goods arrived at Atlas Storage & Transfer, Inc., in Las Vegas
January 29, 1954, and Anderton was notified that the goods were there. She went to the
office of Atlas Storage & Transfer, Inc., on February S, 1954, where she paid the
transportation bill of $371.64 and also the sum of $26 for approximately 30-days advance
storage.
or in Las Vegas, and storage at Las Vegas was selected. The goods arrived at Atlas Storage &
Transfer, Inc., in Las Vegas January 29, 1954, and Anderton was notified that the goods were
there. She went to the office of Atlas Storage & Transfer, Inc., on February 8, 1954, where
she paid the transportation bill of $371.64 and also the sum of $26 for approximately 30-days
advance storage. On March 10, 1954 the warehouse, including the stored goods, was
destroyed by fire. On pre-trial hearing it was stipulated that the fire resulted from the
negligence of Atlas Storage & Transfer, Inc.
As noted, the trial court found that Atlas Storage & Transfer, Inc., was the agent for
storage of the goods for appellant.
Appellant, in its opening brief, recites that three legal issues are presented on the appeal.
They may be condensed into the single issue as to whether the goods were, at the time, under
contract and Interstate Commerce Commission regulations, under the status of
storage-in-transit and subject to the limitation of the carrier's liability based upon the
declared value of the goods shipped. Appellant assigns two specifications of error: (1) the
court's finding that the liability for the loss was to be determined by the mandatory provisions
of the Warehouse Receipts Law, NRS 95.070, and (2) in concluding that appellant was liable
to respondents for the full value of the goods lost. No error is assigned in the court's finding
that Atlas was the agent of Bekins. The appeal was briefed and argued to this court solely
upon the issues so declared and the errors thus assigned.
[Headnote 1]
The bill of lading shows the receipt of the goods by appellant from Anderton consigned to
Anderton c/o Atlas Tsfr. for S.I.T. [storage-in-transit], Las Vegas, Nevada. Following
recital of such destination the form provides, If to storage: [ ] regular, [ ] in transit. A check
mark indicates in transit. In the fine print provisions on the back of the bill of lading is
found the following provision: * * * after placement of the property for delivery at
destination * * * the property * * * may be kept in vehicle, warehouse or place of business
of the carrier, subject to the tariff charge for storage and to carrier's responsibility as
warehouseman only or in the option of the carrier, may be removed to and stored in a
warehouse * * * subject to * * * a reasonable charge for storage.
* * * may be kept in vehicle, warehouse or place of business of the carrier, subject to the
tariff charge for storage and to carrier's responsibility as warehouseman only or in the option
of the carrier, may be removed to and stored in a warehouse * * * subject to * * * a
reasonable charge for storage. * * * The consignor shall be liable for the advances, tariff
charges, packing, storage, and all other lawful charges.
The confirmation of order, agreement for services, and rate quotation likewise shows
consignment from Anderton to same c/o Atlas Transfer & Stg. Under provision for
storage there is again checked in transit. Limitation of the carrier's liability is clearly
stated. The following appears in the fine print appearing on the back of the agreement,
Liability (A) General. All references in this agreement to company' apply to the company,
carrier, or warehouseman in possession of all or any of the property herein described.
The parties agree that conditions of the transportation are governed by the provisions of
the Western States Movers' Conference Tariff No. 1-A. The following provisions are there
found: (A) Storage in transit of shipments covered by this tariff is the holding of the
shipment in the warehouse of the carrier or its agent, for storage, pending further
transportation, and will be effected only at specific request of the shipper. For the purpose of
this rule, a carrier may designate any warehouse to serve as its agent. (c) Shipments moving
under this rule may be stored only once and for a period not to exceed sixty (60) days from
date of unloading into the warehouse. When not removed at the expiration of the time limit
specified herein, the interstate character of the shipment will cease, the warehouse shall be
considered the destination of the shipment, the warehouseman shall be agent for the shipper
and the property shall then be subject to the rules, regulations and charges of the
warehouseman. When a shipment remains in storage after the expiration of sixty (60) days,
all accumulated carrier charges must be paid, as follows: 1Transportation charges for
pick-up or delivery as provided in Paragraph {d); 2Storage charges for sixty {60) days as
provided by this tariff.
provided in Paragraph (d); 2Storage charges for sixty (60) days as provided by this tariff.
(See Item 730); 3Additional services, advances or other lawful charges, (if any).
Both parties agree that the contract between the parties contemplated two
servicestransportation and storage. Appellant insists, however, that the storage involved
was storage-in-transit, contrary to the court's finding and conclusion that the interstate
transportation had terminated with the arrival of the goods at destination. We are satisfied that
the evidence and the documents involved give ample support to the court's finding and
conclusion.
Appellant relies strongly upon the notations in the bill of lading and confirmation that
there was to be storage in transit, and upon the Western States Movers' Conference Tariff
provisions above quoted. At first blush these items appear to lend support to appellant's
contention. Yet many items militate in support of the trial court's conclusion. The destination
of the shipment was from the shipper herself, as consignor, to the shipper herself, as
consignee, in care of the warehouse at Las Vegas. There is not the slightest indication
anywhere in the case that further transportation was to be required. Upon arrival of the goods
at the warehouse in Las Vegas the consignor-consignee was at complete liberty to keep or
leave it in storage or to transport it by any means she might choose to some other, or further,
destination. Transportation under the contract had ceased. The fact that storage-in-transit
had been checked in the contract could not make it so if it was not so. Although appellant
relies strongly on Miller v. Greyvan Lines, 284 App.Div. 133, 130 N.Y.S.2d 378, 382, that
court noted: * * * if the interstate commerce aspect of this shipment was ended at the time of
the fire loss, the limitation of liability is not applicable. In determining * * * whether the
contract has been discharged and the case removed from the operation of the federal act,
regard must, of course, be had to the substance of the transaction. The question is not one of
form, but of actuality'."
form, but of actuality'. Such is precisely the situation here.
Nor do the provisions of secs. (A) and (C) of the Western States Movers' Conference
Tariff support the contention of appellant. Under (A), storage-in-transit covered by the tariff
is clearly defined as the holding of the shipment in the warehouse of the carrier or its agent,
pending further transportation. Section (C) merely provides the maximum time of 60 days in
warehouse, after which there is the presumption that the interstate character of the shipment
will cease. Appellant insists repeatedly that this is equal to a provision that the interstate
character of the shipment maintains for a full period of 60 days after unloading into the
warehouse. This is simply a non sequitur. The goods were no longer in transit after arrival at
destination, with no further transportation contemplated. The 60-day provision has no bearing
on the issues of this appeal. The goods were no longer in the course of transportation. They
were no longer in the course of passing from point to point. See More, Reynolds & Co. v.
Lott, 13 Nev. 376, 383; Davis v. First National Bank (Tex.Civ. App.), 245 S.W. 1009.
There was received in evidence a form of Atlas Storage & Transfer, Inc., Non Negotiable
Warehouse Receipt and Contract which contained a complete description of all of the goods.
This, however, was never executed or delivered. On the contrary, when respondents called at
the warehouse in response to notification that the goods had arrived, they paid and received a
receipt for the Bekins transportation bill of $371.64 and storage charge of $26 from January
29, 1954 to February 29, 1954. Atlas also issued and delivered its separate receipt for this
total of $397.64. Such receipt bore the Bekins shipment number 6020. The Atlas Storage
manager, in explaining the transaction of the payment of the money, the issuance of the
receipt, and the withholding of the complete form of Nonnegotiable Warehouse Receipt and
Contract, stated that he withheld such receipt, waiting for the expiration of the 60-day period
when the interstate transportation status would cease.
when the interstate transportation status would cease. His appraisal of the situation can lend
no support to the same contention now made by appellant.
Appellant cites a number of cases, in some of which the court held that the transportation
service had not terminated and that the limitation of liability clause in the bill of lading
applied. In others, the court found that the interstate nature of the transportation had
terminated and that therefore the limitation of liability clause did not apply. In virtually all
cases the court laid down the general rule that although the limitation of liability applied if the
interstate nature of the transportation was still in effect, it likewise recited the converse, that if
the transportation service had terminated, liability clauses in the bill of lading, under the
applicable tariff regulations no longer applied. See Manlowe Transfer & Distributing Co.,
Inc. v. Department of Public Service of Washington, 18 Wash.2d 754, 140 P.2d 287, 155
A.L.R. 928, holding that the essential character of the commerce and not the mere billing or
forms of contract determine the status of the movement of the freight at the time of loss; and
the annotation of that case in the A.L.R. citation with many cases cited in support of the
general statement, Intent, says the annotator, while not alone conclusive, is probably the
most important single determinant of continuous carriage. See also Oregon R. & Navigation
Co. v. Campbell (Circuit Court, D. Ore.), 180 F. 253; Gulf, C. & S. F. Railway Company v.
Texas, 204 U.S. 403, 27 S.Ct. 360, 51 L.Ed. 540; Southern Ry. Co. v. Prescott, 240 U.S. 632,
639, 36 S.Ct. 469, 472, 60 L.Ed. 836; Cleveland, C. C. & St. L. R. Co. v. Dettlebach, 239
U.S. 588, 36 S.Ct. 177, 60 L.Ed 453 (in which, though holding that the interstate
transportation covered all services including warehouse at terminal, relied, with repeated
emphasis, on clauses in the bill of lading covering such matters, which do not appear in the
instant bill of lading, and based its conclusion upon the terms of the bill of lading); Western
Transit Co. v. A. C. Leslie & Co., 242 U.S. 448, 37 S.Ct. 133, 61 L.Ed. 423 (involving
storage in transit, as against our present situation in which we have found that the storage was
not in transit, as no further transportation was contemplated).
in transit, as no further transportation was contemplated). See also dissenting opinion of Mr.
Justice Clarke in which Justices McKenna, Brandeis and Day concurred in Erie Railroad
Company v. Shuart, 250 U.S. 465, 39 S.Ct. 519, 63 L.Ed. 1088, where, under the facts, the
majority held that the interstate service of the railroad had not terminated.
[Headnote 2]
As we have noted, the briefs and oral argument were concerned entirely with the question
as to whether or not the interstate transportation had ceased, to the end that the limitation of
liability was or was not in effect at the time of the destruction of the goods by fire in the
warehouse. Appellant's opening brief had made no mention of lack of agency in the
warehouse on behalf of the carrier as its principal. The answering brief had casually
mentioned that there was ample evidence to support the court's finding of agency. Appellant's
reply brief mentioned just as casually, in answer to respondents' statement that, if the goods
had once been removed from the warehouse by the consignees, the interstate character of the
shipment would, of course, have come to an end, that the only trouble with this theory was
that then the warehouse would have ceased to be Bekins' agent, and respondents' only action
would be against Atlas. The unbriefed and unargued question of agency impelled us to ask
counsel to submit further briefs on the point. These further briefs brought forth nothing new
of importance. Appellant simply injected into the case (for the first time) the fact that three
Bekins companies were involved, namely, Bekins Van & Storage Co., Bekins Van Lines,
Inc., and Bekins Van Lines Co., three separate entities, with different authorizations for
transportation, and that the appellant herein, Bekins Van & Storage Co. (although it had
accepted the contract to transport the goods from California to Nevada), was a common
carrier operating solely in the state of California. We find, from its expert witness, that Bekins
Van Lines is a collective name, does not refer to any one of the specific companies, that there
are several such companies through the United States, that Bekins Van Lines includes all of
them, and that this particular transaction was with Bekins Van Lines' division of Bekins
Van & Storage Co.; that Bekins Van & Storage Co.
companies through the United States, that Bekins Van Lines includes all of them, and that
this particular transaction was with Bekins Van Lines' division of Bekins Van & Storage Co.;
that Bekins Van & Storage Co. was the agent and that Bekins Van Lines' division was the
carrier. This labyrinth leads us nowhere. The simple answer, however, is found in appellant's
reply brief in distinguishing from the present case the facts in Davis v. First National Bank
(Tex.Civ.App.), 245 S.W. 1009, in which appellant notes that that case involved a situation
where the carrier gave up the goods to a stranger. In our case the carrier relinquished the
goods to its agent * * *.
There was introduced in evidence a special agency agreement in which Atlas Storage &
Transfer, Inc., is appointed agent. It is peculiar in some respects. The principal is not named
as Bekins Van & Storage Co. but as Bekins Van Lines, Inc., and/or Bekins Van Lines Co.,
corporations, hereinafter called the carrier'. It appoints Atlas as its special agent at Las
Vegas, Nevada, for the sole and exclusive purpose of soliciting and securing long distance
moving business for the carrier * * *. However, this exclusive purpose is expanded by the
acceptance of a number of obligations by the agent10 in number. 6th: The agent further
agrees: (1) that it will pick up, distribute and hold shipments of goods for the carrier when
requested * * *.
Appellant calls attention to the fact that Bekins Van & Storage Co. was not a party to this
agency agreement. Yet the other two Bekins companies therein agreed that Bekins Van &
Storage Co. would assign to Atlas all rail and water freight shipments under the control of
Bekins Van & Storage Co. destined for the city in which the agent operates.
It is worthy of some note that Atlas admits the agency in storing the goods. It is of some
further significance that in the regular form of Nonnegotiable Warehouse Receipt and
Contract utilized by Atlas in general (and prepared but not issued or delivered in this
particular instance as above noted), there is endorsed the following: Authorized agent for
and then appears the Bekins' usual trade-mark sign, bearing a map of the United States,
and reading, "Bekins Van LinesNationwide Moving."
Bekins' usual trade-mark sign, bearing a map of the United States, and reading, Bekins Van
LinesNationwide Moving.
There was ample support for the finding of agency.
____________
76 Nev. 361, 361 (1960) Reed v. State Ex Rel. Stewart
HELEN SCOTT REED, Individually, and as County Clerk of the County of Clark, State of
Nevada, Appellant, v. STATE OF NEVADA, Ex Rel. AL STEWART, Respondent.
No. 4349
August 9, 1960 354 P.2d 858
Petitioner brought mandamus proceeding to compel county clerk to place on Democratic
party ballot at primary election the name of the petitioner as a candidate for office of county
commissioner. The trial court rendered judgment adverse to the county clerk, and the county
clerk appealed. The Supreme Court, Badt, J., held that where petitioner on June 16, 1954
filed with county clerk an affidavit of registration, in which petitioner designated his political
affiliation as that of a nonpartisan voter, and on April 27, 1960 he filed affidavit of
registration with county clerk designating his political affiliation to be that of Democratic
party, and on June 21, 1960 he filed in office of county clerk a declaration of candidacy, as a
member of the Democratic party, for office of county commissioner, county clerk properly
refused to place name of petitioner on ballot because of failure of petitioner to comply with
statute requiring that declaration of candidacy state that candidate had not reregistered and
changed designation of political party affiliation on official affidavits of registration since
last general election and that candidate was affiliated with political party at last general
election, since petitioner failed to show that he was affiliated with the Democratic party
at time of general election of 195S.
political party affiliation on official affidavits of registration since last general election and
that candidate was affiliated with political party at last general election, since petitioner failed
to show that he was affiliated with the Democratic party at time of general election of 1958.
Reversed.
Honorable Roger Foley, Attorney General; Honorable Norman H. Samuelson, Deputy
Attorney General; Honorable George Foley, District Attorney, Clark County; Honorable
Jack C. Cherry, Deputy District Attorney, for Appellant.
Mr. Al Stewart, in Propria Persona, for Respondent.
Elections.
Where petitioner on June 16, 1954 filed with county clerk an affidavit of registration, in which
petitioner designated his political affiliation as that of a nonpartisan voter, and on April 27, 1960 he filed
affidavit of registration with county clerk designating his political affiliation to be that of Democratic
party, and on June 21, 1960 he filed in office of county clerk a declaration of candidacy at primary
election, as a member of the Democratic party, for office of county commissioner, county clerk properly
refused to place name of petitioner on ballot because of failure of petitioner to comply with statute
requiring that declaration of candidacy state that candidate had not reregistered and changed designation
of political party affiliation on official affidavits of registration since last general election and that
candidate was affiliated with political party at last general election, since petitioner failed to show that he
was affiliated with Democratic party at time of general election of 1958. NRS 294.125.
OPINION
This appeal presents for our determination the necessity for compliance with statutory
requirements with reference to the form and content of declarations of candidacy for office at
a primary election. The question comes to us on an appeal from the judgment of the court
below directing the issuance of a peremptory writ of mandamus commanding the county clerk
of Clark County to place upon the Democratic primary ballot at the primary election of
September 6, 1960 the name of the petitioner below, Al Stewart, respondent herein, as a
candidate for the office of county commissioner.
County to place upon the Democratic primary ballot at the primary election of September 6,
1960 the name of the petitioner below, Al Stewart, respondent herein, as a candidate for the
office of county commissioner. The county clerk had notified respondent of her refusal to do
so by reason of failure of compliance with statutory requirements.
The statute in question is NRS 294.125, entitled by the Code Commission, Declaration of
Candidacy, * * * Form. It reads as follows:
Nomination Paper of..............................for the Office of................................., State of
Nevada, County of .............................., ss. For the purpose of having my name placed on the
official primary ballot as a candidate for nomination by the ................Party as its candidate
for the office of ....................., I, the undersigned..............., do solemnly swear(or affirm) that
I reside at No........., .................................Street, in the City (or Town)
of......................................, County of ............................, State of Nevada, and that I am a
qualified elector of the election precinct in which I reside; that I am a member of
the....................Party; that I have not reregistered and changed the designation of
my political party affiliation on an official affidavit of registration since the last general
election; that I believe in and intend to support the principles and policies of such political
party in the coming election; that I affiliated with such party at the last general election of
this state; * * *.
It is contended by appellant that the record on appeal affirmatively shows that respondent
did not and could not comply with the requirement of the statute which we have italicized
above. We have concluded that the contention is well made.
It appears from the record that on June 16, 1954 Mr. Stewart filed with the county clerk of
Clark County an affidavit of registration in which he designated his political affiliation as that
of a nonpartisan voter; that on April 27, 1960 he filed an affidavit of registration with the
county clerk of Clark County designating his political affiliation to be that of the
Democratic partyhis first change since 1954; that on June 21, 1960 he filed in the office
of said county clerk a declaration of candidacy, as a member of the Democratic party, in
which he affirmed "* * * that I have not reregistered and changed the designation of my
political party affiliation on an official registration affidavit since the
last general election; * * * that I affiliated with such party at the last general election of
this state; * * *."
affiliation to be that of the Democratic partyhis first change since 1954; that on June 21,
1960 he filed in the office of said county clerk a declaration of candidacy, as a member of the
Democratic party, in which he affirmed * * * that I have not reregistered and changed the
designation of my political party affiliation on an official registration affidavit since the
last general election; * * * that I affiliated with such party at the last general election of this
state; * * *. On July 12, 1960 the appellant county clerk advised respondent that his name
would not be placed upon the Democratic primary ballot, and on the same day he filed his
petition for a writ of mandate.
Two points were argued and submitted to the lower court: (1) whether respondent had
changed the designation of his political party affiliation since the last general election, and (2)
whether he affiliated with the Democratic party at the last general election in this state. Such
reference to the last general election of this state had reference to the November 1958 general
election. The learned trial judge, in his written conclusions, concluded that respondent's 1954
registration as Nonpartisan did not mean an affiliation with any political party and that his
1960 registration declaring his political party designation to be that of Democrat did not
effect a change of political party affiliation in violation of that part of NRS 294.125 which
forbade a change of designation of political party affiliation since the last general election. To
this conclusion of the lower court appellant takes no exception. She agrees and stipulates in
her reply brief that such a changefrom Nonpartisan to Democratis substantially no
change. The trial court, in its written findings and conclusions, did not pass upon the second
issue presented, namely, the question as to whether respondent affiliated with the Democratic
party at the last general election. The only explanation of the court's failure or refusal to pass
on such question is that given by counsel for both parties at the oral argument. They advised
this court that the learned district judge had, in open court, instructed counsel for respondent
to prepare findings and conclusions upon the single issue of the statutory proscription against
change of designation of political party affiliation since the last general election, and that
the reason for this was the trial court's view that the requirement for affiliation with the
party at the last general election was so related to and bound in with the proscription
against change of political party affiliation, that the former could not be considered
individually or without considering its relation to the latter.
of political party affiliation since the last general election, and that the reason for this was the
trial court's view that the requirement for affiliation with the party at the last general election
was so related to and bound in with the proscription against change of political party
affiliation, that the former could not be considered individually or without considering its
relation to the latter.
Respondent supports the writ of mandate for the same reason. He contends that the
requirement for party affiliation at the last general election may not be considered out of
context with the remainder of the section or with other sections of the code. He in effect
makes the problem one of statutory construction which points to a legislative intent which
will not support a rejection of a declaration of partisan candidacy for the bare reason that the
candidate had not affiliated with the party for a period of time extending back to the last
general election. He further broadens the meaning of the word affiliate to one under which
an unexpressed mental approval of party policy would constitute such affiliation and under
which no act of affiliation would be required. In short, he contends that affiliation (which
could be manifested in many ways) is a far different thing from a designation of party
affiliation, and that his actual affiliation has not been successfully challenged.
We must reject these theories. They are negatived by respondent's own affirmations.
Respondent asserts: In truth and in fact, petitioner had no political party affiliation prior to
the [27th] day of April 1960. He further asserts: To run the risk of being elementary, the
very definition of the word Nonpartisan' means no party. While this is not entirely accurate,
respondent's meaning is clear. The expression nonpartisan means, rather, no partisanship.
A partisan, according to Webster, is a strongly devoted adherent; and nonpartisan, under the
same authority, means characterized by absence of partisanship. Respondent further states:
The respondent, prior to his registration on April [27th], 1960, was not a member of any
political party as he was registered as a Nonpartisan. These frank statements, in our opinion,
are in direct conflict with the statutory requirement that respondent, by oath or affirmation,
show that he affiliated with the Democratic party at the general election of 195S, a
situation effectively negatived by his registration as a Nonpartisan from 1954 to April,
1960.
respondent, by oath or affirmation, show that he affiliated with the Democratic party at the
general election of 1958, a situation effectively negatived by his registration as a Nonpartisan
from 1954 to April, 1960.
This court unanimously held in State ex rel. Thatcher v. Brodigan, 37 Nev. 458, 142 P.
520, 522, that the statute then in effect [Stat. 1913, c. 284], and containing the same clause
now under consideration, required that the substantial elements of the prescribed affidavit
should be contained in the affidavit made by the party seeking nomination. The court then
listed such substantial elements11 in number. The sixth one was Declaration of having
affiliated with that same party at the last general election held in this state. This court then
said: By these declarations under oath, made prerequisites for one seeking party nomination,
it was undoubtedly intended to require the applicant to declare the party of which he was a
member and with which he affiliated at the last general election, and this must be the same
party under whose party designation he seeks the nomination at the ensuing primary. Other
strong language appearing in the opinion further supports the conclusion that we have
reached.
The judgment of the district court ordering the appellant county clerk to place the name of
respondent Al Stewart upon the ballot at the primary election to be held September 6, 1960 as
a candidate for county commissioner is hereby reversed. Let remittitur issue forthwith.
Pike, J., concurs.
Chief Justice McNamee did not participate in the consideration or determination of this
appeal, and both parties stipulated to the submission of the appeal to Justices Badt and Pike.
____________
76 Nev. 367, 367 (1960) Adelson v. Young Elec. Sign. Co. (X App.)
ADELSON, INC., a Corporation, Appellant, v. YOUNG ELECTRIC SIGN COMPANY, a
Corporation, Respondent.
No. 4277
YOUNG ELECTRIC SIGN COMPANY, a Corporation, Appellant, v. ADELSON, Inc.,
a Corporation, Respondent.
No. 4278
September 19, 1960 355 P.2d 173
Action was brought to replevy neon display sign or, in event that sign could not be
delivered, to recover judgment for reasonable value thereof in the sum of $2,500, and the
defendant filed a counterclaim alleging ownership of sign and seeking judgment barring
plaintiff from asserting any interest in sign. The lower court rendered judgment for plaintiff
for $2,500, and the defendant appealed, and the plaintiff cross-appealed. The Supreme Court,
Pike, J., held that where District Court did not rule on plaintiff's motion to amend complaint
so as to seek reasonable rental value of sign, and no finding pertaining to reasonable rental
value was made, and there was no motion by plaintiff to obtain such a finding or an alteration
of judgment for plaintiff for $2,500, and only specification of error on cross-appeal of
plaintiff was the awarding to plaintiff of judgment restricted to $2,500, and plaintiff did not
assign as error either failure of District Court to grant plaintiff's motion to amend with
reference to reasonable rental value, or its failure to make finding or enter judgment with
reference to reasonable rental value, plaintiff's notice of appeal precluded Supreme Court
from considering issue of reasonable rental value.
Judgment affirmed.
(Petition for rehearing denied in No. 4278, October 20, 1960.)
Calvin C. Magleby and Albert M. Dreyer, of Las Vegas, for Adelson, Inc.
Samuel S. Lionel, of Las Vegas, for Young Electric Sign Co.
1. Bailment.
In action to replevy neon display sign, which plaintiff had leased to defendant, wherein defendant by
counterclaim alleged ownership of sign, on ground that defendant had exercised alleged option to purchase
the sign, evidence sustained trial court's findings that no option had been granted by plaintiff to defendant
and that, even if there had been an option granted, defendant did not exercise it.
Trial court's findings supported by substantial evidence would not be disturbed by Supreme Court on
appeal.
3. Replevin.
In action to replevy neon display sign or to recover the reasonable value thereof in the sum of $2,500,
evidence sustained trial court's finding that sign had value of $2,500 rather than value of $5,500 as witness
for plaintiff testified.
Where action was brought to replevy neon display sign or for reasonable value thereof in sum of $2,500,
and District Court did not rule on plaintiff's motion to amend complaint so as to seek reasonable rental
value of sign, and no finding pertaining to reasonable rental value was made, and there was no motion by
plaintiff to obtain such a finding or an alteration of judgment for plaintiff for $2,500, and only specification
of error on cross-appeal of plaintiff was the awarding to plaintiff of judgment restricted to $2,500, and
plaintiff did not assign as error either failure of District Court to grant plaintiff's motion to amend with
reference to reasonable rental value, or its failure to make finding or enter judgment with reference to
reasonable rental value, plaintiff's notice of appeal precluded Supreme Court from considering issue of
reasonable rental value. NRCP 73(b).
OPINION
The two above separately numbered appeals, representing, respectively, an appeal and
cross-appeal from the same judgment of the trial court, were consolidated for hearing and
disposition.
Young Electric Sign Company, plaintiff, alleged that it was the owner of a certain neon
display sign of the approximate value of $2,500 which was wrongfully in the possession
of and detained by defendant Adelson, Inc.
it was the owner of a certain neon display sign of the approximate value of $2,500 which was
wrongfully in the possession of and detained by defendant Adelson, Inc.
Plaintiff prayed judgment for an order directing defendant to deliver to plaintiff possession
of said property and, in event said property could not be so delivered, that plaintiff have
judgment against defendant for the reasonable value thereof in the sum of $2,500.
The answer of defendant Adelson, Inc. denied plaintiff's allegations and, by counterclaim,
alleged defendant's ownership of the sign and sought a judgment barring plaintiff from
asserting any interest in the same.
Defendant came into possession of the sign by reason of a lease agreement with plaintiff.
The lease provided for the extension of the lease for a like term, should the lessee fail to give
notice of intention to cancel prior to the original expiration date, and should continue to use
the sign after such date. Other provisions related to agreed liquidated damages in an amount
equal to three-fourths of the balance of the rental payable under the lease, should the lessee be
in default in the payment of rental or otherwise breach the lease agreement. Plaintiff offered
evidence pertaining to reasonable rental for use of the sign by defendant after the original
expiration date of the lease based upon continued use of the sign by defendant after that date,
and the formula for agreed liquidated damages above referred to.
Judgment of the trial court was that plaintiff * * * have judgment against the defendant,
Adelson, Inc., for the return of the doublefaced neon sign * * * and in the event the defendant
fails or is unable to return the said sign to the plaintiff within 15 days from the date hereof * *
* that plaintiff have judgment against the defendant for the sum of $2,500.
Defendant Adelson, Inc. appealed from such final judgment and filed its undertaking
covering both costs on appeal and staying execution of the judgment pending determination
of the appeal. Plaintiff appealed * * * from that portion of the final judgment entered on the
7th day of October 1959, insofar as said judgment limited the damages of the plaintiff to
the sum of $2,500."
on the 7th day of October 1959, insofar as said judgment limited the damages of the plaintiff
to the sum of $2,500.
Plaintiff urges in its briefs and oral argument that, although its amended complaint alleged
the approximate value of the sign to be $2,500, evidence adduced at the trial showed the
value of the sign to be $5,500 and it seeks a modification of the judgment in its favor for
either the sum of $8,089.73, claimed to be the reasonable rental value of the sign, or for the
sum of $5,500 as the value of the sign.
Although plaintiff's complaint contained no allegations with reference to a claim for
reasonable rental of the sign, evidence pertaining to reasonable rental value was introduced at
the trial over the objections of defendant and, by motion made during the trial, plaintiff's
counsel sought an order of court permitting an amendment of plaintiff's pleading so as to
include this claim for reasonable rental. Plaintiff renewed such motion after the close of the
evidence, but the trial court did not rule upon the motion and, in its decision rendered prior to
judgment, and in the judgment made no reference to the reasonable rental sought by plaintiff.
The appeal of Adelson, Inc. assigns error on the part of the trial court in its failure to find
and hold that defendant was the owner of the sign by reason of a certain claimed option to
purchase the sign for the sum of $1 upon full performance by defendant of the terms and
conditions of the written lease agreement between the parties. Such lease agreement covering
a three-year period ending March 31, 1958 made no mention of any such option, but
defendant offered evidence of the contents of a letter claimed to have been received by
defendant from plaintiff granting the option subsequent to the execution of the lease
agreement. Defendant corporation did not produce such letter at the trial but, over objection,
two of its officers, after testifying that the letter was lost, testified concerning the substance of
its contents, and a former general manager of plaintiff corporation, one Jack Young, testified
that he had written an option letter to defendant. The testimony of the last mentioned witness
was not definite as to the terms of the missing letter, but stated his recollection that it
provided that, upon satisfactory performance by defendant of the three-year lease
agreement of the sign, defendant would have the option of purchasing the sign for "either
20 percent of the outright sales price or one dollar."
mentioned witness was not definite as to the terms of the missing letter, but stated his
recollection that it provided that, upon satisfactory performance by defendant of the
three-year lease agreement of the sign, defendant would have the option of purchasing the
sign for either 20 percent of the outright sales price or one dollar.
Plaintiff corporation denied the granting of the option to purchase, and the general
manager of the sign company, one Vaughn Cannon, testified that a search of the corporate
records failed to disclose a copy of any such option letter. The evidence shows that such
witness had been an employee of the sign company for some 12 years previous, and service
manager for the corporation at the time that the option letter was claimed to have been written
to defendant by plaintiff's then general manager. He testified concerning the business practice
of the corporation to maintain a copy of any such option letter in its Las Vegas office, as well
as copies in the company's Salt Lake City office and in a bank safe deposit box. Plaintiff also
introduced into evidence a copy of an option letter of the nature claimed by defendant and
signed by the former general manager for the sign company, which letter, however, related to
an entirely different and prior transaction pertaining to a sign lease agreement between
plaintiff and defendant.
[Headnotes 1, 2]
With this evidence before it the trial court found that there was no option granted by the
plaintiff to the defendant and, even if there had been an option to purchase, defendant did not
exercise it. The finding and judgment of the trial court in this regard is supported by
substantial evidence and will not be disturbed upon this appeal. This holding disposes of the
appeal of Adelson, Inc.
The cross-appeal of plaintiff requires that primary consideration be given to its notice of
appeal from the judgment. Rule 73(b) NRCP provides that such notice must specify the
judgment or the part thereof appealed from and here the notice specifies that plaintiff appeals
* * * from that portion of the final judgment entered on the 7th day of October 1959 insofar
as said judgment limited the damages of the plaintiff to the sum of $2,500."
limited the damages of the plaintiff to the sum of $2,500. Here the judgment of the trial
court was, by its terms, limited to a judgment for the return of the sign and an alternative
judgment for its value if not returned. The decision in Lambert v. McFarland, 2 Nev. 58,
pointed out that in an action of replevin the primary object of the action is the recovery of the
property, and judgment for its value in damages is only authorized when a delivery of the
property itself cannot be had.
This was the nature of the judgment sought by plaintiff in the instant case. Had plaintiff
elected to do so, it could have recovered possession of the sign prior to judgment through the
provisional remedy of claim and delivery. NRCP 64, NRS 31.840. The record shows that, at
the time of trial and entry of judgment, the sign continued in the possession of defendant and,
so far as appears, there is no reason why the judgment for the delivery of the sign to plaintiff
cannot be satisfied by the sheriff under a writ of execution. Rule 70 NRCP. NRS 21.050.
If the language contained in plaintiff's notice of cross-appeal be interpreted to include an
appeal from the amount awarded in the alternative as the value of the property sought to be
recovered in the event that its delivery cannot be had, the record does not support the sign
company's contention on appeal that the testimony of Cannon as to the value of the sign being
$5,500 was uncontradicted.
[Headnote 3]
Plaintiff had pleaded that the sign had a reasonable value of approximately $2,500. The
lease agreement provided, It is agreed by the parties hereto that the Sign is of special
construction made for the uses and purposes of the lessee and no other, and that except for
use by the lessee the Sign has no value. There was evidence that the sign had been in use for
three years prior to April 1, 1958. Jack Young, who had supervised the installation of the
sign, testified that the only value that the sign had in April 1958 was the value it would have
had to defendant. He also testified that the sign was not as good in April of 195S as when it
was installed in March of 1955, some three years earlier, by reason of wear, tear, and use.
as good in April of 1958 as when it was installed in March of 1955, some three years earlier,
by reason of wear, tear, and use. The witness referred to certain elements of deterioration to
the transformers, wiring, and paint. Accordingly, there was conflict in the evidence as to the
value of the sign on the specified date, and the court having resolved the issue by its holding
that the sign was worth less than the amount indicated by Cannon's testimony, the amount of
such judgment will not be modified on this appeal.
The trial court, while not ruling upon plaintiff's motion to amend plaintiff's complaint, so
as to seek reasonable rental value commencing April 1, 1958, commented in effect that
perhaps an amendment was not necessary for the reason that, if the evidence so merited, the
court might at any time make findings to conform to the proof. However, no finding
pertaining to reasonable rental value was made by the court and the record shows no motion
by plaintiff to obtain such a finding or an alteration of judgment. The trial court did not make
specific reference to any rules of civil procedure, and we find it unnecessary to determine this
point. The only specification of error on the cross-appeal is the awarding to Young of a
judgment restricted to $2,500. Young does not assign as error either the failure of the court to
grant plaintiff's motion to amend with reference to reasonable rental value, or its failure to
make a finding or enter judgment with reference to the same. Furthermore, Rule 73(b) NRCP
provides that the notice of appeal shall designate the judgment or part thereof appealed from,
and only those parts of the judgment which are included in the notice of appeal will be
considered by the appellate court. Reno Newspapers, Inc. v. Bibb, 76 Nev. 332, 353 P.2d 458,
and authorities there cited.
[Headnote 4]
The $2,500 provided in the judgment to be paid in the alternative as the value of the sign
cannot be construed as a judgment or a portion of a judgment relating to the issue of
reasonable rental for the same. This being true, plaintiff's notice of appeal precludes this
court from considering the issue of reasonable rental value.
true, plaintiff's notice of appeal precludes this court from considering the issue of reasonable
rental value. Judgment affirmed, with no costs to either appellant or cross-appellant.
____________
76 Nev. 374, 374 (1960) Nevada Gaming Commission v. Byrens
NEVADA GAMING COMMISSION and GAMING CONTROL BOARD, and Each, Every
and All of the Members Thereof, Appellants, v. HERMAN BYRENS, Doing Business as
RENO TURF CLUB, Respondent.
No. 4350
September 20, 1960 355 P.2d 176
Department No. 2.
On motion to dismiss appeal.
Certiorari proceeding. The lower court entered orders refusing to dismiss petition for, or
quash, writ of certiorari, and appeal was taken. The Supreme Court held that the orders were
not final judgments from which appeal could be taken, and that writ provision commanding
litigants to desist from further proceeding in the matter to be reviewed was not type of
injunction contemplated by rule authorizing appeal from an order granting an injunction.
Appeal dismissed.
Roger D. Foley, Attorney General, Norman H. Samuelson, Deputy Attorney General, and
Michael J. Wendell, Special Deputy Attorney General, for Appellants.
Vargas, Dillon & Bartlett and Alexander A. Garroway, of Reno, for Respondent.
No appeal lies except when authorized by statute or by rules properly promulgated, such as Nevada Rules
of Civil Procedure. NRCP 72(b) (2).
Neither an order refusing to dismiss petition for writ of certiorari nor an order refusing to quash a writ is
final judgment from which appeal can be taken. NRCP 72(b).
Writ of certiorari provision commanding litigants to desist from further proceeding in the matter to be
reviewed was not type of injunction contemplated by rule authorizing appeal from an order granting an
injunction. NRCP 72(b) (2); NRS 34.060.
OPINION
Per Curiam:
Upon this appeal from an order dated May 25, 1960 denying the motion of respondents to
dismiss the Petition for Writ of Certiorari and to quash the Writ of Certiorari dated April 19,
1960, the matter is before us on motion of respondent to dismiss the appeal upon the ground
that said order of May 25, 1960 is not a final order in the case and is not appealable.
[Headnote 1]
No appeal lies except when authorized by statute or by rules properly promulgated such as
the Nevada Rules of Civil Procedure. Quinn v. Quinn, 53 Nev. 67, 292 P. 621;
Johns-Manville, Inc., of California v. Lander County, 48 Nev. 244, 229 P. 387, 234 P. 518.
[Headnote 2]
Rule 72(b) NRCP states precisely what determinations are appealable, and does not
include either an order refusing to dismiss a petition for a writ of certiorari or an order
refusing to quash a writ. Furthermore neither of these is a final judgment. Smith v. Hamilton,
70 Nev. 212, 265 P.2d 214.
[Headnote 3]
Rule 72(b) (2) NRCP authorizes an appeal from an order granting an injunction.
Respondent maintains that the writ of certiorari, which contains a provision commanding
the appellants in the meantime to desist from further proceeding in the matter to be
reviewed, is an injunction and therefore an appealable determination.
the writ of certiorari, which contains a provision commanding the appellants in the meantime
to desist from further proceeding in the matter to be reviewed, is an injunction and therefore
an appealable determination.
NRS 34.060 relating to the contents of a writ of certiorari provides:
The writ of review shall command the party to whom it is directed to certify fully to the
court before which the writ is returnable, at a specified time and place, and annex to the writ a
transcript of the record and proceeding, describing or referring to them with convenient
certainty, that the same may be reviewed by the court, and requiring the party, in the
meantime, to desist from further proceedings in the matter to be reviewed.
We are of the opinion that the injunction feature of the writ which corresponds to the
restraining provisions of NRS 34.060 is not the type of injunction contemplated by Rule
72(b) (2) NRCP. A direct appeal therefore may not be taken from it. Harrison v. Harrison, 54
Nev. 369, 17 P.2d 693.
It is ordered that the appeal be dismissed.
Our decision herein is limited to a denial of the right of appeal from specific interlocutory
orders, in conformity with the express provisions of the Nevada Rules of Civil Procedure
designating what matters are appealable.
Appellants are not to assume that they are precluded from proceeding to final judgment on
the petition in the court below from which judgment an appeal to this court would lie, or from
presenting to this court any original petition for such extraordinary remedy as may be
available to them.
____________
76 Nev. 377, 377 (1960) Smith v. Garside
GLADYS SMITH, Appellant, v. SHERWIN GARSIDE and RAYMOND GERMAIN, dba
BONANZA PRINTERS, INC., Respondents.
No. 4284
September 29, 1960 355 P.2d 849
Appeal from a judgment of dismissal of the Eighth Judicial District Court, Clark County;
A. S. Henderson, Judge, Department No. 2.
Common-law action by employee against her employers for chest infection which resulted
from failure of employers' heating facilities and which developed into idiopathic pericarditis
and then into systemic lupus erythemotosis. The trial court granted employers' motion to
dismiss, and employee appealed. The Supreme Court, Badt, J., held that injuries suffered by
employee did not result from accident within the Industrial Insurance Act, and, therefore,
such act would not preclude a common-law action by employee against employer for injuries
sustained, that complaint was sufficient to state cause of action based upon employers'
negligent failure to provide heat in building in which employee was employed and to allege
that such negligence, if any, was proximate cause of employee's illness, and that, where
employee, who had incurred a disease which could prove fatal, testified that her earnings had
been reduced from $100 to $35 a week, but there was the lack of proof of her life expectancy,
fact that jury might be limited in amount of damages by loss of her earning capacity would
not, under submission of case to jury on proper instructions, preclude them from finding such
damages as might be warranted on such and other items, in view of facts that some 3 1/2
years had elapsed from date of inception of illness to date of trial, and that employee had
testified to her pain and suffering and to her incurrence of $2,500 in medical and hospital
bills.
Reversed and remanded.
Harry E. Claiborne, of Las Vegas, for Appellant.
Denton & Smith and George F. Ogilvie, Jr., of Las Vegas, for Respondents.
Where an employee's condition results from an accident and is compensable under the Industrial
Insurance Act or is result of an occupational disease and is compensable under the Occupational Diseases
Act, employee is not entitled to recover from employer for such condition in a common-law action for
damages. NRS 616.010 et seq., 617.010 et seq.; NRCP 41(b).
Where employee, as result of failure of employers' heating facilities, became chilled, suffered severe
chest pains, and was then treated for pleurisy, idiopathic pericarditis, and systemic lupus erythemotosis,
employee's condition was not result of an occupational disease since such disease was not one which did
not come from hazard to which workman would have been equally exposed outside employment and
disease was not incidental to character of the business, and, therefore, employee was not precluded from
bringing common-law action against employers for such injury. NRS 617.010 et seq., 617.440.
Where, upon failure of employers' heating facilities, employee became chilled, suffered severe chest
pains, and was treated first for pleurisy, then idiopathic pericarditis, and then for systemic lupus
erythemotosis, injuries suffered by employee did not result from accident within the Industrial Insurance
Act, and, therefore, such act would not preclude a common-law action by employee against employers for
injuries sustained. NRS 616.010 et seq., 616.020, 616.110.
Where employee's injury was not result of accident within Industrial Insurance Act, fact that employee
had applied to Industrial Commission for relief and that commission had paid some of her initial medical
and hospital bills would not constitute, on employee's part, an election which would preclude her from
seeking common-law relief against her employers. NRS 616.010 et seq.
5. Master and Servant.
In common-law action by employee against employers for chest infection which employee received due
to failure of employers' heating facilities and which developed into idiopathic pericarditis and then into
systemic lupus erythemotosis, complaint was sufficient to state cause of action based upon employers'
negligent failure to provide heat in building in which employee was employed and to allege that such
negligence, if any, was proximate cause of employee's illness. NRS 618.230, 618.240.
6. Damages.
Where employee, who had incurred a disease which could prove fatal, testified, in common-law damage
action against employers, that her earnings had been reduced from $100 to $35 a week, but there was lack
of proof of her life expectancy, fact that jury might be limited in amount of damages by loss of her
earning capacity would not, under submission of case to jury on proper instructions,
preclude them from finding such damages as might be warranted on such and other
items, in view of facts that some 3 1J2 years had elapsed from date of inception of
illness to date of trial, and that employee had testified to her pain and suffering and
to her incurrence of $2,500 in medical and hospital bills.
of her earning capacity would not, under submission of case to jury on proper instructions, preclude them
from finding such damages as might be warranted on such and other items, in view of facts that some 3 1/2
years had elapsed from date of inception of illness to date of trial, and that employee had testified to her
pain and suffering and to her incurrence of $2,500 in medical and hospital bills.
OPINION
Plaintiff below, appellant herein, commenced a common-law action for damages by reason
of becoming afflicted with a chest infection which developed into idiopathic pericarditis and
then into systemic lupus erythemotosis, all alleged to result from the negligence of defendants
in failing properly to heat the building where she was employed. At the conclusion of
plaintiff's case, the court granted defendants' motion to dismiss under Rule 41 (b) NRCP.
1
This appeal followed.
[Headnote 1]
Defendants, plaintiff's employers, had accepted the provisions of the Industrial Insurance
Act, and it is conceded that plaintiff's condition arose out of and in the course of her
employment. The trial court held that accordingly the plaintiff's exclusive remedy was against
the Nevada Industrial Commission. If, then, her condition was the result of an accident and
compensable under the provisions of the Nevada Industrial Insurance Act, NRS 616.010 et
seq., or was the result of an occupational disease and compensable under the provisions of the
Nevada Occupational Diseases Act, NRS 617.010 et seq., the summary judgment in favor of
defendants was correct. McColl v. Scherer, 73 Nev. 226, 315 P.2d 807. Appellant contends
that her condition was the result neither of an accident nor an occupational disease, and that
she was accordingly at liberty to pursue her common-law remedy against the defendants by
reason of their negligence in failing to provide a safe place for her to work.
____________________

1
* * * After the plaintiff has completed the presentation of his evidence, the defendant * * * may move for a
dismissal on the ground that upon the facts and the law the plaintiff has failed to prove a sufficient case for the
court or jury.
failing to provide a safe place for her to work. We have concluded that the law supports these
contentions, thus requiring a reversal of the judgment and a remand for trial of her
common-law action against defendants.
Respondents, in their opening and reply briefs, support the judgment of dismissal on four
grounds: (1) that the injuries suffered by appellant resulted from an accident as that term is
defined in NRS 616.020; or (2) that her condition was the result of an occupational disease as
defined in NRS 617.440; (3) that appellant is bound by her election of remedy in filing a
claim with and accepting benefits from the Nevada Industrial Commission; and (4) that
appellant had failed to prove liability on the part of respondents at common law.
The court in its opinion from the bench granting the motion to dismiss made certain
findings. It first found that there was no accident. It then found that the respondents had
provided appellant an improper place in which to work and that the cold temperature brought
about the condition of appellant's incurable disease; that such was an occupational disease
contracted by reason of the unfitness of the place, being too cold in which to work, and thus
compensable under the Nevada Occupational Diseases Act.
Upon the oral argument respondents abandoned support of the order of dismissal under the
court's theory of an occupational disease, thus taking the position that, while the trial court
was wrong in holding that the plaintiff's condition was an occupational disease, it was
likewise wrong in finding that it did not result from an accident; and that accordingly its
judgment was right and must be affirmed.
Plaintiff was employed by the defendants in the bindery department of their printing plant
in the City of Las Vegas. Toward the end of March 1956 defendants had turned the heat off in
the building because warm weather had set in. However, on about March 28 of that year the
temperature dropped. The plant was a concrete building with a concrete floor and a high roof.
It had no ceiling. It was so cold that the foreman wore a Mackinaw jacket and a cap with ear
muffs. The heating facilities comprised two large gas heaters but they could not be made
to function.
comprised two large gas heaters but they could not be made to function. It was too cold to
work or to handle the papers or the machinery. She complained to both partners and to the
shop foreman. Her testimony in these respects was corroborated. The situation continued for
all of one day and half of the next. Plaintiff became chilled, suffered severe chest pains, was
treated by her doctor and hospitalized, and treated first for pleurisy, then idiopathic
pericarditis and then for systemic lupus erythemotosis. After treatment at the hospital at Las
Vegas, she was sent to the hospital at Beverly Hills, came back to Las Vegas, and was
examined and treated from time to time thereafter. The medical testimony indicated the
treatment in detail, the plaintiff's failure to respond to it and eventually the findings of the
pathologist to verify the diagnosis of lupus cells in the bloodstream, the progress of which
cells closes off the little blood vessels in the organs, causing them to fail to function and
inevitably resulting in the death of the patient; that her being subjected to the exposure to cold
where she worked triggered the disease's process. As a result she is unable to follow her
former work or perform any violent exercise. She is no longer able to drive a car, or to
perform work in the printing trade. She has trouble in climbing stairs and even in walking.
She is able to work only about half time, and at work not involving such activity as required
in her former work of handling power cutters, folding and stitching machines and in handling
and cutting paper. Her former earnings of $100 a week are supplanted by activities that
provide $35 a week. She introduced in evidence medical, hospital, and drug bills aggregating
some $2,500. She filed a claim with the Nevada Industrial Commission which paid her
hospital bills in Las Vegas and her medical bills up to May 21, 1956, but no later bills
accruing and no compensation.
[Headnote 2]
(1) We have noted the four grounds upon which respondents seek to sustain the dismissal
at the conclusion of plaintiff's case, and the abandonment of the ground that her condition
was the result of an occupational disease.
ground that her condition was the result of an occupational disease. This was necessarily so
by reason of the requirements of NRS 617.440 requiring that such disease does not come
from a hazard to which workmen would have been equally exposed outside of the
employment, and that the disease must be incidental to the character of the business.
(2) In support of the judgment that the injuries suffered resulted from an accident as that
term is defined in NRS 616.020 (contrary to the finding of the trial judge), respondents refer
first to the statutory definition: Accident' shall be construed to mean an unexpected or
unforeseen event happening suddenly and violently, with or without human fault, and
producing at the time objective symptoms of an injury. Respondents argue that the fall in
temperature was an unexpected and unforeseen event, that it happened suddenly, and that it
produced at the time objective symptoms of an injury, as she became sick in one day, or at the
most two days, and that her chest pains developed immediately. They contend that the
situation therefore meets the definition set forth in the statute as construed by this court in
Pershing Quicksilver Co. v. Thiers, 62 Nev. 382, 390, 152 P.2d 432, 436, and in the later case
of Kennecott Copper Corp. v. Reyes, 75 Nev. 212, 337 P.2d 624. Respondents also cite
several cases from other jurisdictions as examples of numerous cases indicating their
conclusion that such a situation is an accident. It would serve no purpose to discuss the
Pershing Quicksilver case or the Kennecott Copper case at length. It is enough to say that they
do not support the contention of respondents.
Several of the cases from foreign jurisdictions contain language that would appear to
support their contention, particularly Pan American Airways, Inc. v. Willard, 99 F.Supp. 257
(S.D.N.Y. 1951), in which the court held that an employee who had contracted lupus
erythemotosis by reason of excessive exposure to sunshine, resulting in his death, had
suffered an accidental injury. It is conceded that the case presents a medical parallel in that
extreme exposure to heat and excessive sunshine, as well as extreme exposure to cold, will
trigger lupus erythemotosis.
as extreme exposure to cold, will trigger lupus erythemotosis. It was held that compensation
had properly been awarded by the deputy commissioner, Federal Security Agency, pursuant
to the Longshoremen's and Harbor Workers' Compensation Act. 44 Stat. 1424, 33 U.S.C.A.
901, et seq. It does not appear, however, that such federal act contains the definition occurring
in our own statute, NRS 616.110: Injury' and personal injury' shall be construed to mean a
sudden and tangible happening of a traumatic nature, producing an immediate or prompt
result, and resulting from an external force * * *. (Subparagraph 2 of the same section
indicates that the injury referred to is one resulting from an accident.) To the contrary, the
definition contained in the federal act, 33 U.S.C.A. 902(2), so far as applicable, is as follows:
The term injury' means accidental injury or death arising out of and in the course of
employment
* * *. This definition entirely omits the restrictive elements contained in the Nevada
definition.
Traumatic (derived from the Greek trauma, a wound) is defined by Webster as of,
pertaining to, or resulting from a trauma; caused by a wound, injury or shock * * *. This is
even further confined by the Funk & Wagnall definition relied on in Higgins v. Department
of Labor and Industries, infra: any injury to the body caused by violence.
Contrary to respondents' contention, a review of the authorities indicates that statutes
corresponding with or similar to the Nevada statute have been uniformly construed to
preclude a happening such as the one here involved.
In the following cases the court was concerned, under statutes identical or similar to our
own, with the same question here presentedwhether proof had been made that the
employee's condition was the result of an accident as meaning an unexpected or unforeseen
event happening suddenly and violently, with or without human fault, and producing at the
time objective symptoms of an injury, or whether the injury was a sudden and tangible
happening of a traumatic nature, producing an immediate or prompt result, and resulting
from an external force.
and tangible happening of a traumatic nature, producing an immediate or prompt result, and
resulting from an external force. Concededly, the factual situations differed, but we consider
the cases ample authority for the conclusion reached. Such cases are: Higgins v. Department
of Labor and Industries, 27 Wash.2d 816, 180 P.2d 559; Stevens v. Village of Driggs, 65 Ida.
733, 152 P.2d 891; Costly v. City of Eveleth, 173 Minn. 564, 218 N.W. 126; Sonson v.
Arbogast, 60 Ida. 582, 94 P.2d 672; Meldrum v. Southard Feed & Mill Co., 229 Mo.App.
158, 74 S.W.2d 75; Jones v. Yankee Hill Brick Manufacturing Co., 161 Neb. 404, 73 N.W.2d
394; Murray v. National Gypsum Co., 160 Neb. 463, 70 N.W.2d 394. See also, in general, 99
C.J.S. 542, Workmen's Compensation Acts, secs. 163 and 164 under the headings Ordinarily
there is no right to benefits under Workmen's Compensation Acts for mere disease, that is,
general idiopathic disease, as distinguished from traumatic disease, and Under many
statutes there can be no recovery for disease unless there has been some traumatic injury, and
before compensation can be allowed it must be established that the disease was proximately
caused by an accident or injury * * *.
[Headnote 3]
Just as it would have been doing violence to the plain and commonly understood meaning
of words to have held that Reyes' death in a slide in open pit mining (Kennecott Copper Corp.
v. Reyes, supra) was not the result of an accident, it would do like violence to the statutory
definition to hold here that Mrs. Smith's disease was the result of an accident.
[Headnote 4]
We must accordingly reject the contention that the injuries suffered by appellant resulted
from an accident as that term is defined in our statute.
(3) We must also reject the contention that because appellant had applied to the Industrial
Commission for relief and because the commission had paid some of her initial medical and
hospital bills, this counted as an election on her part, precluding her from seeking
common-law relief. Respondents contend that we so held in First National Bank of Nevada v.
The Eighth Judicial District Court, 75 Nev. 77
National Bank of Nevada v. The Eighth Judicial District Court, 75 Nev. 77, 335 P.2d 79. That
case does not so hold.
[Headnote 5]
(4) Respondents contend further that the dismissal was proper because the plaintiff failed
to prove a prima facie case of liability on the part of the defendants, in that she had not
proved (a) that they were negligent in failing to provide heat in the building where she was
employed or (b) that such negligence, if any, was the proximate cause of her illness; and (c)
even assuming the establishment of negligence and proximate cause, she failed to show the
amount of her damage. We have reviewed above enough of the evidence to indicate that there
was sufficient evidence to go to the jury on points (a) and (b). As to point (a), we may refer
also to NRS 618.230 requiring every employer to furnish a place of employment which shall
be safe for employment therein, and NRS 618.240, providing that no employer shall require,
permit or suffer any employee to go or be in any place of employment which is not safe, or to
neglect to do anything reasonably necessary to protect the safety of employees, or to maintain
any place of employment that is not safe.
[Headnote 6]
As to point (c), respondents urge that while plaintiff testified that her earnings have been
reduced from $100 a week to $35 a week, there was an entire lack of proof of her life
expectancy; that under the medical testimony as to the fatal nature of the disease she might
live for another month or for another 40 years; and any verdict by the jury would be
speculative. However, some three and one-half years had elapsed from the date of the
inception of her illness to the date of trial. That period at least was definite. She had also
testified to her pain and suffering, as well as the incurring of some $2,500 in medical and
hospital bills. The point is accordingly prematurely made. The fact that the jury might be
limited in the amount of damages by loss of her earning capacity would not, under
submission of the case to them on proper instructions, preclude them from finding such
damages as might be warranted on this, as well as on other items.
damages as might be warranted on this, as well as on other items.
The judgment of dismissal cannot be supported on any of the grounds asserted by
respondents.
Reversed with instructions to deny the motion to dismiss, and remanded for further
proceedings.
____________
76 Nev. 386, 386 (1960) Selznick v. District Court
ALAN THEODORE SELZNICK and GENEVIEVE SELZNICK, Petitioners, v. EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE
COUNTY OF CLARK and HONORABLE A. S. HENDERSON, District Judge,
Respondents.
No. 4333
September 29, 1960 355 P.2d 854
Original prohibition proceeding was brought in the Supreme Court to prevent District
Court and the judge thereof from continuing with a tort action against the petitioners, on
ground that District Court had no jurisdiction over the petitioners. The Supreme Court,
McNamee, C. J., held that where petitioners moved, not only to quash service of process
under statute permitting constructive service of summons in any action or proceeding
growing out of the operation of a motor vehicle over the public roads, streets, or highways, on
ground that statute had no application, but moved to dismiss the action against them, they
made a general appearance in the action and District Court acquired jurisdiction of them.
Original proceedings in prohibition. Alternate writ vacated and proceedings
dismissed.
Clarence Sundean, of Las Vegas, for Petitioners.
Foley Brothers, of Lag Vegas, for Respondents.
1. Appearance.
Defendant, who requests relief additional to that necessary to protect him from defective service of
process, makes a general appearance and court acquires jurisdiction of him.
2. Appearance.
Where service of summons was made on defendants pursuant to statute permitting constructive service of
summons in any action or proceeding growing out of operation of motor vehicle over public roads, streets,
or highways, and defendants not only moved to quash service of summons, on ground that they were not
subject to service of process under the statute, but moved to dismiss the action, they made a general
appearance and District Court acquired jurisdiction of them. NRS 14.070.
3. Prohibition.
Where original prohibition proceeding in Supreme Court to prevent District Court from continuing with
tort action against petitioners was based on ground that District Court had no jurisdiction over the
petitioners, but District Court acquired jurisdiction over petitioners because they made a general
appearance, Supreme Court was precluded from issuing writ of prohibition.
OPINION
This is an original proceeding wherein petitioners seek a writ of prohibition to prevent
respondent court from continuing with a tort action against them on the ground that it has no
jurisdiction over petitioners.
Petitioners are husband and wife. Their automobile was involved in an accident on the
premises of the Sahara Hotel in Clark County, Nevada, which resulted in personal injuries to
one of the plaintiffs in said tort action. Service of summons was made on each of the
petitioners pursuant to NRS 14.070 which permits constructive service of summons in any
action or proceeding growing out of the operation of a motor vehicle over the public roads,
streets, or highways in the State of Nevada.
Petitioners contend that the said statute has no application to automobile accidents
occurring on private property such as the Sahara Hotel premises.
Each petitioner filed two motions in the respondent court. One, a motion to dismiss the
action on the ground that movant is a resident of the State of California, that the accident
did not occur on a public road in the State of Nevada, and that movant is not subject to
service of process under the provisions of NRS 14.070; and, two, to dismiss the action or
in lieu thereof to quash the return of service of summons on the ground that movant has
not been properly served with process in the action.
that movant is a resident of the State of California, that the accident did not occur on a public
road in the State of Nevada, and that movant is not subject to service of process under the
provisions of NRS 14.070; and, two, to dismiss the action or in lieu thereof to quash the
return of service of summons on the ground that movant has not been properly served with
process in the action.
It is unnecessary to consider the validity of the constructive service of summons on either
petitioner or the applicability of NRS 14.070 to the particular situation here involved, for the
reason that we have concluded that both petitioners have entered a general appearance in the
action thereby giving the respondent court personal jurisdiction over them.
[Headnotes 1, 2]
In the case of Barnato v. Second Judicial District Court, 76 Nev. 335, 353 P.2d 1103, this
court held that a defendant who requests relief additional to that necessary to protect him
from defective service of process renders his appearance general. In that case, although
petitioner claimed his motion to dismiss was solely in furtherance of his motion to quash
service of summons, and that quashing service of summons was the only relief desired, we
concluded that petitioner was seeking relief other than the quashing of the service of the
summons, to wit, dismissal of the action. In the present case, counsel for petitioners frankly
admits that he is seeking more relief than the mere quashing of service of summons (or
quashing the return of service of summons). He strongly urges that petitioners are entitled to
the additional relief of having the entire action dismissed as to each of them. This case
therefore falls squarely within the rule of the Barnato case.
[Headnote 3]
This court is precluded from issuing a writ of prohibition, petition for which was based
upon the ground that the respondent court has no jurisdiction over the petitioners, because the
respondent court, for the reasons hereinabove given, acquired personal jurisdiction over the
petitioners through their motions to dismiss.
The alternate writ of prohibition is vacated and the proceedings dismissed.
____________
76 Nev. 389, 389 (1960) Kelly v. Reed
JOHN E. KELLY, Petitioner, v. HELEN SCOTT REED, County Clerk, Clark County,
Nevada, VAN ENGLESTEAD, Chairman, Clark County Democratic Central Committee,
JOHN F. MENDOZA, and JACK C. CHERRY, Respondents.
No. 4372
October 7, 1960 355 P.2d 969
Original petition for alternative writ of mandate.
Mandamus proceeding to compel central committee of county political party to certify
petitioner to county clerk as party's nominee for office of District Attorney, to compel clerk to
place petitioner's name on ballot for general election, and to compel clerk to deny request of
nonpartisan candidate for district judge to have his name stricken from general election ballot
as a candidate for district judge. The Supreme Court held that mandamus would not lie to
force central committee of county political party to certify petitioner's name as the nominee
for District Attorney, and that nonpartisan candidate for district judge was not precluded from
having his name stricken from the general election ballot for such office notwithstanding oath
taken in connection with filing of declaration of candidacy, that candidate would not
withdraw from the race.
Petition denied.
E. M. Gunderson and John E. Kelly, of Las Vegas; and Springer, McKissick and Hug, of
Reno, for Petitioner.
76 Nev. 389, 390 (1960) Kelly v. Reed
M. Gene Matteucci and John F. Mendoza, of Las Vegas, for Respondents John F.
Mendoza and Van Englestead, Chairman, Clark County Democratic Central Committee.
1. Elections.
Statute providing that central committee of county political party shall fill vacancies occurring after the
holding of any primary election does not make action by central committee mandatory in every case of a
vacancy occurring after the holding of every primary election but merely empowers the entity designated to
name a party candidate in case a vacancy arises after primary election on account of the death or
disqualification of a person nominated, or on account of a vacancy in an office caused by death or
resignation of the incumbent. NRS 294.300.
2. Mandamus.
Act of central committee of county political party, in filling a vacancy occurring after the holding of a
primary election is not an act which the law especially enjoins as a duty resulting from an office, trust or
station, so that central committee could not be forced by writ of mandamus to certify name of petitioner to
county clerk as the party's nominee for office of District Attorney. NRS 34.160.
3. Mandamus.
Where name of petitioner had not been certified by central committee of county political party to county
clerk for placement on ballot for general election to fill vacancy occurring after the primary election,
county clerk could not be compelled to place name of petitioner on general election ballot as a candidate.
4. Officers.
A statutory or constitutional provision prohibiting one person from filling two offices at one time does
not preclude a candidate from seeking or accepting nomination for more than one office in the absence of
express statutory prohibition.
5. Officers.
Constitutional provision that district judges shall be ineligible for any office, other than a judicial office,
during the term for which they shall have been elected or appointed did not preclude nonpartisan candidate
for office of district judge from also being a candidate for District Attorney on the same ballot. NRS
294.280; Const. art. 6, sec. 11.
6. Elections.
Oath by candidate for office of district judge given in connection with the filing of declaration of
candidacy, that, if nominated as a candidate in primary election, candidate will accept such nomination and
not withdraw, precludes a partisan candidate, who is nominated as a candidate for such office by primary
election, from withdrawing his name from ballot, but such oath, in the case of a nonpartisan
candidate, refers to the then existing situation, and in the absence of express
legislative declaration that a nonpartisan candidate for office cannot have his name
withdrawn, such candidate may abandon his candidacy for district judge, when an
unforeseen vacancy in another office occurs, and withdraw his nomination for judicial
office and accept nomination for newly vacated office.
76 Nev. 389, 391 (1960) Kelly v. Reed
such oath, in the case of a nonpartisan candidate, refers to the then existing situation, and in the absence of
express legislative declaration that a nonpartisan candidate for office cannot have his name withdrawn,
such candidate may abandon his candidacy for district judge, when an unforeseen vacancy in another office
occurs, and withdraw his nomination for judicial office and accept nomination for newly vacated office.
NRS 294.280; Const. art. 6, sec. 11.
OPINION
Per Curiam:
This is an original proceeding in mandamus. The petition therefor seeks: (1) to compel
respondent Van Englestead, Chairman of the Clark County Democratic Central Committee,
to certify to Helen Scott Reed, clerk of said county, the name of petitioner Kelly as
Democratic nominee for the office of District Attorney of Clark County; (2) to compel Helen
Scott Reed to place the name of petitioner Kelly on the ballot as Democratic nominee; (3) to
compel Helen Scott Reed to reject the name of respondent John F. Mendoza as a candidate
for such office; and (4) to compel Helen Scott Reed to deny any request of respondent John F.
Mendoza to withdraw his nomination for the office of District Judge of Department 1 of the
Eighth Judicial District Court.
1. NRS 294.300 provides: Vacancies occurring after the holding of any primary election
shall be filled by the central committee of the political party of the county * * *. Such action
shall be taken not less than 30 days prior to the November election.
[Headnote 1]
The purpose of this statute is not to require action by a central committee in every case of a
vacancy occurring after the holding of every primary election. The statute is merely an
empowering act giving authority to the entity designated to name a party candidate in case a
vacancy arises after a primary election on account of the death or disqualification of a person
nominated, or on account of a vacancy in an office caused by death or resignation of the
incumbent. See Brown v. Georgetta, 70 Nev. 500
76 Nev. 389, 392 (1960) Kelly v. Reed
70 Nev. 500, 275 P.2d 376. The central committee may not have any candidate suitable to it
to nominate, there may be no one of its party with the necessary qualifications (and certainly
it couldn't be required to nominate a person of another party affiliation); it may wish to take
no action believing that the candidate of the other party is the best person available; and
further, it may not be able to find a qualified person willing to accept the nomination.
NRS 34.160 specifies when a writ of mandamus may issue. It may issue to compel the
performance of an act which the law especially enjoins as a duty resulting from an office,
trust or station.
[Headnote 2]
The central committee has discretion in choosing its particular candidate. They cannot be
compelled to act in a particular way, i.e., to choose or name Kelly or any other person. Even if
the committee may have voted to nominate a particular person it would not be precluded from
rescinding, abrogating, or altering its earlier action. Browne v. Martin, La.App., 19 So.2d
421; Long v. Martin, 194 La. 797, 194 So. 896; Seay v. Latham, 143 Tex. 1, 182 S.W.2d 251,
155 A.L.R. 180; State ex rel. Reynolds v. Fielder, 110 W.Va. 240, 157 S.E. 597. This court
therefore will not compel Van Englestead as Chairman of said Democratic Central
Committee to certify to Helen Scott Reed the name of petitioner John E. Kelly as Democratic
nominee for the office of District Attorney of Clark County, Nevada. Such an act on the part
of the central committee is not an act which the law especially enjoins as a duty resulting
from an office, trust or station. We express no opinion whether a county central committee is
an office, trust or station within the meaning of NRS 34.160.
[Headnote 3]
2. County Clerk Helen Scott Reed is empowered to place on the ballot for the November
election the names of persons who have been duly nominated at the preceding primary
election or those nominated by county central committees in case of vacancies occurring after
the primary election.1 Since she has never received any nomination of John E.
76 Nev. 389, 393 (1960) Kelly v. Reed
primary election.
1
Since she has never received any nomination of John E. Kelly from the
Democratic County Central Committee for the office of district attorney (and it appears from
the minutes of its meeting that no such nomination was made) she cannot be compelled to
place the name of John E. Kelly on the general election ballot as a candidate.
3. On July 18, 1960, respondent John F. Mendoza filed with respondent Helen Scott Reed
his declaration of candidacy for the office of District Judge of Department 1 of the Eighth
Judicial District Court in and for the county of Clark. Inasmuch as only two candidates filed
for said office of district judge, pursuant to NRS 294.280 both of said candidates became
nonpartisan nominees for said office. Petitioner maintains that a person cannot be a candidate
for the office of district judge and district attorney because the same are incompatible and that
if elected to both he would be ineligible to qualify for the office of district attorney under the
provisions of the Nev. Const. art. 6, sec. 11.
2

[Headnotes 4, 5]
The weight of authority, which we are inclined to follow, is that a statutory or
constitutional provision prohibiting one person from filling two offices at one time does not
preclude a candidate from seeking or accepting nomination for more than one office in the
absence of some statutory prohibition. State ex rel. Nev. v. Waechter, 332 Mo. 574, 58
S.W.2d 971; Misch v. Russell, 136 Ill. 22, 26 N.E. 528, 12 L.R.A. 125; Petition of Maxman's
Nomination, 49 Pa. Distr. & Co. R. 141. Such a statutory prohibition did exist in this state.
Stat. of Nev. 1891, Ch. 40, sec. 6; Rev. Laws of Nev. (1912), sec. 1838; Stat. of Nev. 1915,
Ch. 285, sec. 42.
3
Said statutory provision was repealed by implication by Stat. of Nev.
____________________

1
We are not concerned with nonpartisan nominations occurring because of a vacancy after the primary.

2
Art. 6, sec. 11: The justices of the supreme court and the district judges shall be ineligible to any office,
other than a judicial office, during the term for which they shall have been elected or appointed; and all elections
or appointments of any such judges by the people, legislature, or otherwise, during said period, to any office
other than judicial, shall be void.

3
Stat. of Nev. 1915, Ch. 285, sec. 42: * * * and no person shall accept a nomination to more than one
office.
76 Nev. 389, 394 (1960) Kelly v. Reed
Stat. of Nev. 1917, Ch. 155, sec. 33, and has not appeared in any subsequent act.
We therefore conclude that the policy of this state since 1917 does not preclude a
candidate from accepting a nomination to more than one office.
4. The petition herein alleges that John F. Mendoza desires to withdraw his candidacy for
said office of district judge.
In filing his declaration of candidacy for the office of district judge, he stated under oath
that if nominated as a candidate at said ensuing election I will accept such nomination and
not withdraw.
[Headnote 6]
In State ex rel. Donnelley v. Hamilton, 33 Nev. 418, 111 P. 1026, the majority of the court
decided that a candidate who, in filing his declaration of candidacy, takes an oath not to
withdraw if nominated does not have the right to have his name withdrawn or omitted from
the general election ballot after he has been regularly nominated. It is to be noted that the rule
in this case pertains to a nominee of a political party. In the present proceeding, respondent
Mendoza is a nominee for a nonpartisan office. The reasons prohibiting a nominee for a
partisan office from withdrawing after he has been nominated as set forth in the case of State
ex rel. Thatcher v. Brodigan, 37 Nev. 458, 142 P. 520, do not necessarily apply in the case of
nonpartisan nominees.
As stated in the Hamilton case [33 Nev. 418, 426, 111 P. 1029] The scope of the new
primary act indicates that the Legislature intended to make a radical change in the methods by
which nominees for public office are to be placed on the general election ballot. Instead of
being selected by a comparatively few individuals, comprising a convention or committee,
they are now to be chosen by a majority of the votes of their party, cast in the booth, free from
any undue influence. Riter v. Douglass, 109 Pac. 444. Different provisions of the act
strengthen the inference that when nominees are so chosen they are to remain upon the ticket
in compliance with their oath not to withdraw, and that it was not the intention of the
Legislature to have them break this obligation by withdrawing and thereby allowing a
committee to appoint nominees different from the ones selected by a majority of the
votes of the party."
76 Nev. 389, 395 (1960) Kelly v. Reed
this obligation by withdrawing and thereby allowing a committee to appoint nominees
different from the ones selected by a majority of the votes of the party.
In State ex rel. Thatcher v. Brodigan, supra, we stated that this court had held in State ex
rel. Donnelley v. Hamilton, supra, that whether a candidate nominated at the primary election
may have his name omitted from the general election ballots is a matter of policy for the
legislature and where the legislature forbids the withdrawal of candidates nominated at the
primary, the court cannot allow candidates to withdraw even for deserving reasons.
There is no express legislative declaration that a nominee for a nonpartisan office cannot
have his name withdrawn as such nominee. As stated by Justice Norcross in his dissenting
opinion in the case of State ex rel. Donnelley v. Hamilton, supra, in referring to the law of
this state prior to the adoption of the primary election law: There has never been in the laws
of this state any restriction whatever upon the right, either of a candidate for a public office or
for an officer, to withdraw from such nomination or resign from such office whenever he saw
fit to do so. We are unwilling to extend the doctrine of the Hamilton case so as to preclude a
nonpartisan nominee from withdrawing his nomination after the primary election if he so
desires. In the present case, at the time respondent Mendoza filed his declaration of candidacy
and executed the oath there did not then exist a vacancy in the office of district attorney and
when that vacancy occurred after the primary election we see no legislative policy which
would preclude him from seeking and accepting a party nomination to the office of district
attorney. We hold that the oath which a nonpartisan candidate takes when filing his
declaration of candidacy refers to the then existing situation and when an unforeseen vacancy
in another office occurs (as here upon the resignation of George Foley whose term had more
than two years to run) a nominee for a nonpartisan office would be free to withdraw his
nomination therefor and accept nomination for the newly vacated office.
76 Nev. 389, 396 (1960) Kelly v. Reed
As we see no useful purpose and possible confusion and injustice to the voters in having
the name of respondent Mendoza remain on the general election ballot as a candidate for
district judge, if it is his intention to abandon such candidacy, and if he requests that his name
be withdrawn as a nominee for the office of district judge, the respondent county clerk should
permit such withdrawal.
The petition for the alternative writ is denied, and the proceedings dismissed.
____________
76 Nev. 396, 396 (1960) Chavez v. Mendoza
In the Matter of the Estate of VICTORIA ROSALEZ MENDOZA, Also Known as
VICTORIA BAEZ, Deceased.
MARY CHAVEZ and JOHN F. MENDOZA, Proponents of the Will of Victoria Rosalez
Mendoza, Also Known as Victoria Baez, Deceased, Appellants, v. LUCY MENDOZA,
ESTEFANA CHAVEZ, AMELIA SALDANA and CARLOTA GALINDO, Contestants,
Respondents.
No. 4292
October 12, 1960 356 P.2d 13
Department No. 2.
Will contest. The trial court denied probate, and proponents appealed. The Supreme Court,
Badt, J., held that evidence supported finding that testatrix did not understand and know
contents of will.
Affirmed.
John P. Foley, of Las Vegas, for Appellants.
Robert E. Jones and Carl J. Christensen, of Las Vegas, for Respondents.
1. Wills.
Evidence in will contest supported finding that will was not entitled to probate because of testatrix's lack
of understanding and knowledge of its contents.
2. Wills.
It is essential to the validity of a will that testator know and understand the contents thereof.
OPINION
The court below denied probate of the will of Victoria Rosalez Mendoza, and the
proponents of the will have appealed. Mary Chavez, one of the proponents, is a surviving
daughter, and John F. Mendoza, the other proponent, is the son of a deceased child. These
two are the sole beneficiaries of the will and are named as executors. The four respondents,
who successfully opposed the probate of the will, are surviving daughters of the testatrix.
The will was contested on the ground that it is not the last will and testament of the
deceased, that it was not executed and attested as a will in compliance with the laws of the
State of Nevada, and that undue influence was exercised upon the decedent. The court found
that decedent was totally illiterate and could not read or write in any language and that the
only language which the decedent could speak was Spanish; that said will, typewritten in
English, was prepared by William Hatton, an attorney at law, from information supplied to
him principally by the proponent Mary Chavez; that the will was not attested and witnessed
as required by law; that the protestants are children of the deceased; that they were not
provided for in the will but entirely omitted therefrom; and that it does not appear that such
omission was intentional. The trial court's conclusions were that the purported will was not
attested, declared or published in the manner prescribed by law and is not entitled to probate,
and that the omission of the disinherited children was not intentional. It adjudged that the will
be denied probate.
Appellants specify as error the holding of the court that the will was not attested, declared
or published in the manner prescribed by law; that the holding that the will was not entitled to
probate is not supported by any substantial evidence; that in holding that respondents were
pretermitted heirs the court applied the wrong statute; that the holding that the omission of
the testatrix to provide for respondents was not intentional is not supported by substantial
evidence.
[Headnote 1]
A large part of appellants' briefs and oral argument is devoted to the contention that,
contrary to the court's finding, the will was properly executed and attested. Another
considerable portion of appellants' briefs and oral argument devotes itself to the court's
asserted error in applying to the issue of whether appellants were pretermitted heirs the statute
in effect at the time of the execution of the will and at the time of the death of the testatrix,
instead of the statute existing at the time of the contest. We find it unnecessary to discuss
these assignments, as we have concluded that irrespective of these assignments there was
substantial evidence to support the court's finding and conclusion that the will was not
entitled to probate because of the lack of understanding and knowledge of its contents by the
testatrix.
The learned trial judge, both in his decision on the submission of the contest and on his
denial of motion for new trial, referred at length to the evidence adduced. On the occasion in
which the will was signed and witnessed there were present Mrs. Mendoza (the testatrix), Mr.
Hatton (her attorney), and Mary Chavez, her daughter (one of the proponents of the will and
one of the two beneficiaries named therein). The two women who signed as attesting
witnesses were present at the time of the attestation. Mary Chavez testified concerning Mr.
Hatton's conversation with the testatrix in Spanish: He always tried to talk to her kind of
broken like, kind of in a Spanish, a few words he would say to her. Q. Was the conversation
between your mother and Mr. Hatton in Spanish? A. No. He kind of talked kind of broken
like, a few words in Spanish.
kind of broken like, a few words in Spanish. * * * Q. Did he have any conversation with her
in Spanish? A. No, not exactly. I told him what she wanted. Q. You told Mr. Hatton what
your mother wanted in her will? A. (Witness nods affirmatively.) * * * Q. So the
conversations between you and Mr. Hatton were all in English? A. Yes. As to the
conversations between Mr. Hatton and the testatrixMary Chavez described them: * * * He
just says a few words in Spanish. The court in characterizing the situation said: Mary
Chavez was, no doubt, the only person in the room at the time of the drafting of the will and
the execution of the will who knew all of the facets in connection with her mother's thinking,
and the translation of that thinking to the printed document representing the last will and
testament of her mother. Mrs. Mendoza was unable to speak or read English and she was
unable to read or write Spanish. Her signature to the will was by making her mark.
Much of the language used by the court in connection with his conclusion that the
contestants were pretermitted heirs applied with like force to his conclusion that Mrs.
Mendoza did not know the contents of the will she was signing, and that the will as drawn did
not reflect how she wanted to dispose of her estate. The will was in the following language:
I, Victoria Rosalez Mendoza, being of sound mind and memory and not acting under any
duress, thought or undue influence, make this Last Will and Testament.
I am at this date married to Pedro C. Mendoza. I leave him one dollar ($1.00) if he is still
my husband at the date of my death. If we are divorced before I did then I leave him nothing.
All of the rest of my property, real and personal, of whatsoever nature and wheresoever
located, I leave to Mary Chavez and John F. Mendoza, my children, equally, share and share
alike.
I hereby appoint Mary Chavez to be Executrix of this my Last Will and Testament with
full power to sell, lease, mortgage, convey or dispose of all or any part of my estate, to give
effect to this my Last Will and Testament.
Hereunto I have set my hand and seal this 7th day of November, 1946, at Las Vegas,
Nevada.
Victoria Rosalez Mendoza
(Her) x (Seal)
This was followed by the signatures and the usual attestation clause of the witnesses.
The court stated in its decision denying new trial:
Counsel for the Contestants point out that the proposition was carefully noted in the Will
on the method used to disinherit Pedro Mendoza, and argue that, by the same token, the
Testator should have disinherited the Contestants. The argument has great weight, but the
only testimony on that point came from Mr. Hatton, himself, who prepared the Will. Mr.
Hatton testified substantially as follows: That there were conversations regarding her husband
and all her children. Mr. Hatton told her she should do the same thing with her children as she
did with Pedro. The response was that the Testator did not want to mention the other children,
as she would want them to respect her Will. Now, in contrast to this testimony, Mary Chavez
testified in substance that her mother always took one of us' (children) with her. She was
bashful; she could speak some English; that she did not specifically recall Mr. Hatton
discussing the Will with her mother. It would seem that the making of such an important
document under the existing circumstances and especially in view of Mary's testimony that
Hatton spoke very little Spanish that she would have remembered any discussion that Mr.
Hatton said he had with the Testator regarding her children. At very best, taking the testimony
as a whole, Mrs. Mendoza was very close to her family, and all of the children testified
without objection that their mother had discussed her properties with them and at no time
ever indicated that any of them were not to share in her estate. One of the daughters, Lucille
[Lucy], was a backward child. Her mother always showed great concern for her to such an
extent that from the testimony of Mary Chavez and John Mendoza it would seem that they
had an understanding with their mother that there may have been some trust decided upon for
the benefit of Lucy. Mr. John Mendoza in his testimony twice referred to it, that his aunt
Lucy was to be taken care of 'by Mary and me'."
referred to it, that his aunt Lucy was to be taken care of by Mary and me'.
Mr. John Mendoza's testimony that his aunt Lucy was to be taken care of by Mary and
me' was of particular significance to the trial court. It indicated a desire to provide something
in the nature of a trust to take care of this retarded child. Yet the will made no provision nor
any reference of any kind to indicate this desire of the testatrix. The court was also impressed
by the fact that the disinherited children occupied a much stronger and more significant
relationship than characterized by the timeworn phrase as being the natural objects of her
bounty. They were in many ways just as close to her as the child and grandchild named as
the sole beneficiaries, and even the proponents of the will recognized her concern for the
retarded child.
The record contains much testimony concerning the relations existing between the testatrix
and all her children, a close-knit group, all helping the mother in various ways, attending her
both at the hospital and in her home participating in conferences concerning Lucy, the latter's
two children, and the question of her marriage, the matter of placing a mortgage for an
improvement loan on part of the property, conversations among them all after the funeral
concerning setting up a trust for Lucy, and many other details.
With reference to Mr. Hatton's testimony that he read the will to the testatrix in English
and explained it paragraph by paragraph, sentence by sentence, in Spanish, and one little
piece after another, we may note that no correction was made in the sentence, If we are
divorced before I did then I leave him nothing. The word obviously intended was die or
died. Nor was a correction made in the devise of all the testatrix's property to Mary
Chavez and John F. Mendoza, my children * * *. Mary was her child but John was her
grandchild. No correction was made in the introductory statement that the testatrix was not
acting under any duress, thought or undue influence * * *.
The question is not to what extent the reported testimony may influence this court. It is
rather as to the extent to which the trial court was entitled to rely upon it. Mr. Hatton was
advised by Mary Chavez of the desires of the testatrix.
upon it. Mr. Hatton was advised by Mary Chavez of the desires of the testatrix. This grew out
of the conversations between Mary Chavez and Mr. Hatton, had in English, which Mrs.
Mendoza could not understand. The court heard Mr. Hatton's testimony of his explaining to
Mrs. Mendoza in Spanish what the will as drawn by him provided. Yet he spoke very little
Spanishonly a few words. This was Mary Chavez's conclusion despite Mr. Hatton's
statement that he spoke Spanish. The trial court was entitled to question his testimony that he
first explained to Mrs. Mendoza that if she wanted to disinherit the four children not
mentioned in the will, she should actually say so in like manner as she did in disinheriting her
husband. Mary Chavez did not corroborate this.
[Headnote 2]
It needs no citation of authority to support the universally recognized rule that it is
essential to the validity of a will that the testator know and understand the contents thereof.
As seen from the recitals of the learned trial judge in his written decision denying probate and
in his written decision denying the motion for new trial, and as further seen from our
references to the record, there was substantial evidence to support his conclusion: Now,
from the testimony the court does not believe that Mrs. Mendoza at the time of the making of
her will had a full and complete understanding of it; and the court's further statement: The
court concludes that from the testimony taken * * * the overwhelming evidence to the court is
that Mrs. Mendoza did not know the exact contents of her will. * * *
Affirmed.
____________
76 Nev. 403, 403 (1960) Carr v. District Court
GEORGE A. CARR, Petitioner, v. DEPARTMENT NO. 1, SECOND JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for the COUNTY OF WASHOE,
HONORABLE GRANT L. BOWEN, Judge Thereof, and the WASHOE COUNTY GRAND
JURY, Respondents.
No. 4337
October 12, 1960 356 P.2d 16
Original proceeding for writ of prohibition against Department No. 1, Second Judicial
District Court of the State of Nevada, in and for the County of Washoe, Grant L. Bowen, J.,
and the Washoe County Grand Jury, to prohibit the proceedings in a contempt matter. The
Supreme Court, Pike, J., held that where grand jury, conducting investigation purportedly into
irregularities of municipal police department and asserted willful and corrupt misconduct of
public officers subpoenaed city councilman who, after testifying that he was engaged in
public relations and advertising business, was asked to state the names of his clients, and it
appeared that answers sought might be pertinent to inquiry, and as objection to answering
question was based solely upon assertion of business relationship not recognized by law as
being confidential or privileged, he was properly to be required to answer question.
Writ denied.
Grubic, Drendel and Bradley, of Reno; Streeter and Sala, of Reno, for Petitioner.
William J. Raggio, District Attorney; Drake DeLanoy and Eric L. Richards, Deputy
District Attorneys, Washoe County, for Respondents.
1. Witnesses.
Generally a witness may not refuse to answer a proper question on the ground that he may thereby suffer
injury in his business.
2. Witnesses.
The law does not distinguish between the withholding of documents relating to proof of facts and the
refusal to give oral matters within a witness' knowledge and the evidence must be produced in either case
unless production is excused by some special privilege. NRS 48.040, 48.080.
3. Grand Jury.
As one subpoenaed by grand jury was witness and not a party, he was not in position to contend that
question which was asked him was not relevant to inquiry.
4. Witnesses.
Where grand jury, conducting investigation purportedly into irregularities of municipal police department
and asserted willful and corrupt misconduct of public officers subpoenaed city councilman who after
testifying that he was engaged in public relations and advertising business, was asked to but refused to state
the names of his clients, and it appeared that answers sought might be pertinent to inquiry and, as objection
to answering question was based solely upon assertion of business relationship not recognized by law as
being confidential or privileged, he was properly to be required to answer. NRS 48.040, 48.080,
172.300, subd. 1 (c).
OPINION
Petitioner George A. Carr seeks to have made permanent an alternative writ of prohibition
issued by this court.
The Washoe County grand jury subpoenaed petitioner, a city councilman of the city of
Reno, to appear before it as a witness. The subpoena to Carr was signed by one H. Sewell as
assistant grand jury foreman. Carr appeared before the jury in response to such subpoena and
was sworn to testify as a witness. After testifying that he was engaged in the public relations
and advertising business, Carr refused to answer certain questions requiring him to state the
names of his clients. In so refusing Carr expressly stated that his refusal was not based upon
the ground that his answers might tend to incriminate him. He stated as the basis of his
refusal to answer that certain of his work in public relations was of a confidential nature and
that he was apprehensive that should he disclose the requested information before the grand
jury such information might well thereafter become public, to the detriment of Carr's business
and income.
Following Carr's refusal to disclose the names of his clients, said Sewell, as acting
foreman of the grand jury, filed his petition and supporting affidavit with the clerk of the
lower court, seeking an order directing Carr to show cause why Carr should not be
punished for contempt.
clerk of the lower court, seeking an order directing Carr to show cause why Carr should not
be punished for contempt. Sewell's affidavit stated that affiant was the acting foreman and a
member of the grand jury which had been lawfully impaneled on a previous date, and that on
June 15, 1960 said grand jury * * * was inquiring into irregularities of the Reno police
department and the willful and corrupt misconduct in office of public officers of every
description within the county, pursuant to NRS 172.300 1 (c).
1
It further recited that on the
date referred to, Carr, after having been duly sworn to testify as a witness, refused to answer
certain questions of the nature hereinabove indicated, and that such refusal to answer impeded
the grand jury and constituted an unlawful and contemptuous act. Carr filed a motion to
dismiss the contempt petition above referred to and, after the court heard and denied the
motion, filed his affidavit and answer to the petition. Carr's affidavit stated his reason for
such refusal was that disclosure of the requested information would have jeopardized his
livelihood and embarrassed his clients. Further, he denied having been guilty of any
irregularities in the Reno police department, one of the areas of investigation referred to in
Sewell's affidavit, or having engaged in any willful or corrupt misconduct in office. He
denied that the questions which he had refused to answer were relevant to the subject matter
of the inquiry as stated in Sewell's affidavit.
At the hearing before the court on the criminal contempt matter, the transcript of Carr's
testimony given before the grand jury, including the questions asked him and his refusal to
answer them, was introduced in evidence, and Sewell testified as a witness on behalf of the
state. Sewell testified that, * * * the grand jury was investigating alleged corruption in the
police department, and also the influences that might have been pressuring the police
department from the city council or others", and in his testimony referred to an interim
report that had been submitted by the grand jury to the court as a result of such
investigation.
____________________

1
172.300. Matters into which grand jury must and may inquire. 1. The grand jury must inquire into: * * * (c)
The willful and corrupt misconduct in office of public officers of every description within the county. * * *
council or others, and in his testimony referred to an interim report that had been submitted
by the grand jury to the court as a result of such investigation.
The trial court found that the question that had been asked Carr before the grand jury and
which Carr had refused to answer was relevant, material and proper, and entered its order that
Carr appear before the next session of the grand jury and answer the question which had been
propounded to him, namely, Who are your clients connected with the public relations
business?. The court dismissed the charge of criminal contempt against Carr, and the trial
court's remarks show its view of the proceedings before it as presenting for its determination
the issue of whether or not the particular question was relevant and proper and whether Carr
should be required to answer.
After the trial court entered its order that Carr appear before the grand jury and answer the
question referred to, Carr petitioned this court and obtained an order that an alternative writ
of prohibition issue. Such alternative writ, by its terms, directed the trial court and other
respondents herein, to refrain from any further proceedings in the contempt matter, pending
the further order of this court.
Petitioner asserts: (1) deficiency in Sewell's affidavit; (2) lack of authority on the part of
Sewell to swear petitioner as a witness; and (3) alleged impropriety of certain remarks made
by the district attorney pertaining to the charge of criminal contempt against petitioner. These
were all disposed of without prejudice to petitioner's rights when the trial court dismissed the
contempt charge, thus purging petitioner of any alleged contempt.
However, as petitioner has been ordered by the trial court to return before the grand jury
and answer the question stated in the court's order, the relevancy of such question to the grand
jury disputed by petitioner must be considered.
In Parus v. District Court, 42 Nev. 229, 239, 174 P. 706, 709, 4 A.L.R. 140, this court
stated, The grand jury, whatever its ancient functions may have been, has under modern
law become an institution endowed largely with inquisitorial powers.
jury, whatever its ancient functions may have been, has under modern law become an
institution endowed largely with inquisitorial powers. Not only does it have to do with
criminal investigations, but by statutory provision it may inquire into the affairs, conduct, and
regulation of public offices, boards and commissions. The public health and public welfare,
as well as the moral atmosphere of a community, are matters of proper inquiry for our modern
grand jury.
In the instant case the grand jury was inquiring into irregularities of the Reno police
department, and the willful and corrupt misconduct in office of public officers within the
county, matters properly within the scope of its statutory authority. Basically we must
consider whether or not the questions asked the petitioner were relevant to the subject matter
of investigation there before the grand jury, and we conclude that they were.
[Headnotes 1, 2]
Petitioner's status before the grand jury was that of a witness who had been subpoenaed to
attend and give his testimony in connection with the investigation then in progress. The
reasons given by petitioner for not answering the questions did not disclose the existence of
any relationship, between him and the public relations or advertising clients of his business,
of the nature recognized in law as confidential and privileged. Some of such latter
relationships, so recognized as privileged by the statutes of this state, are those of husband
and wife and physician and patient. NRS 48.040, 48.080. However, the general rule is that a
witness may not refuse to answer a proper question on the ground that he may thereby suffer
injury in his business. 58 Am.Jur. 41, Witnesses, sec. 34, n. 10. In this regard the law does not
distinguish between the withholding of documents relating to the proof of facts and the
refusal to give oral answers to matters within a witness' knowledge. The evidence must be
produced in either case, unless such production is excused by some special privilege of the
nature hereinbefore indicated. 58 Am.Jur., 42, Witnesses, sec. 34, n. 11.
[Headnote 3]
As a witness, and not as a party, he was not in a position to contend that the question
which was asked him was not relevant to the inquiry. U.S. v. McGovern, 2 Cir., 60 F.2d 880.
In re Edge Ho Holding Corp., 256 N.Y. 374, 176 N.E. 537, 539, the court stated, Very often
the baring of the information is not susceptible of intelligent estimates until it is placed in its
setting, a tile in the mosaic. Likewise, in Blair v. U.S., 250 U.S. 273, 39 S.Ct. 468, 471, 63
L.Ed. 979, the following statement appears with reference to the general scope of
examination of a witness before the grand jury, The witness is bound not only to attend, but
to tell what he knows in answer to questions framed for the purpose of bringing out the truth
of the matter under inquiry. He is not entitled to urge objections of incompetency and
irrelevancy, such as a party might raise, for this is no concern of his. * * * It is a grand
inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is
not to be limited narrowly by questions of propriety or forecasts of the probable result of the
investigation, or by doubts whether any particular individual will be found properly subject to
an accusation of crime.
In re Greenleaf, 176 Misc. 566, 28 N.Y.S.2d 28, 32, pertained to a situation where a
person in public office and also in private business in the locality refused to testify, stating
that certain matters related to his own business. In that case the court said that there was no
evidence attacking the good faith of the grand jury in asking the questions which the witness
had refused to answer; that it appeared that the questions were pertinent to the inquiry, and
stated, * * * If it appears that the answers to be elicited may be pertinent to the inquiry, the
court would not be justified in interfering.
[Headnote 4]
In the instant situation, where the reason given by petitioner for not answering the question
was based solely upon the assertion of a business relationship not recognized by the law as
being confidential and privileged, and it appears that the answers sought to be obtained may
be pertinent to the inquiry, the witness should be required to answer.
obtained may be pertinent to the inquiry, the witness should be required to answer. See the
discussion of this subject by Judge Learned Hand speaking for the Second Circuit Court of
Appeals in McMann v. Securities and Exchange Commission, 87 F.2d 377, 109 A.L.R. 1445.
The writ of prohibition is denied, and the alternative writ is vacated.
____________
76 Nev. 409, 409 (1960) Barra v. Dumais
In the Matter of the Parental Rights as to
NEIL M. DUMAIS, a Minor
GEORGE BARRA, Probation Officer in and for the County of Nye, State of Nevada,
Appellant, v. GEORGE DUMAIS and EMILIE DUMAIS, Respondents.
No. 4308
October 24, 1960 356 P.2d 124
Appeal from judgment of the Fifth Judicial District Court, Nye County; Peter Breen,
Judge.
Proceeding on probation officer's application for order terminating parental rights of
natural parents of two-year-old minor. The lower court entered order dismissing petition and
ordering minor child be restored to natural parents, and probation officer appealed. The
Supreme Court, Pike, J., held that there was substantial evidence tending to show such
rehabilitation of parents between date of separation from minor child and date of hearing as to
support order of dismissal.
Judgment affirmed.
William P. Beko, District Attorney, Nye County, for Appellant.
Diehl and Recanzone, of Fallon, for Respondents.
1. Infants.
In proceeding on application by probation officer for order terminating parental rights of natural parents
of two-year-old minor on ground that parents and neglected and refused to provide properly for child and
that they were unfit parents, there was substantial evidence tending to show such rehabilitation on part of
parents between date of their separation from minor child and date of hearing over a year later as to support
order of dismissal. NRS 128.010 to 128.140.
2. Trial.
In proceeding on application by probation officer to terminate parental rights of natural parents of
two-year-old minor, where witness testified, without objection, to having received a report from Oregon
probation officer and her cross examination elicited further testimony concerning report, there was no error
in overruling objection to testimony concerning report's contents on ground that it was hearsay or in
denying motion to strike for reason that neither objection nor motion was timely made, and hearsay
evidence having been received without objection that court was entitled to consider it.
OPINION
Petitioner Barra, as probation officer of Nye County, sought an order terminating the
parental rights of the natural parents of the above named minor, then about two years of age.
The petition filed May 28, 1959 alleged that both parents had neglected and refused to
provide properly for the child, and that they were unfit parents. The proceedings were brought
pursuant to the provisions of NRS 128.010-128.140. This is an appeal from an order
dismissing the petition and ordering that the minor child be restored to his natural parents.
At the hearings on the petition held on September 12, 1959 and February 4, 1960 a number
of witnesses, including petitioner and the district attorney of Nye County, testified concerning
the neglect of the child by the parents at Manhattan, in said county, during a period of not
more than two weeks in August and September 1958. The proof of neglect and failure to
provide properly and care for the child during that period is convincing.
The child at that time was an infant of less than one and a half years of age, and the
youngest of five children, the eldest of whom was 11.
and a half years of age, and the youngest of five children, the eldest of whom was 11. During
that period the parents were seeking to take over the operation of a combination grocery store
and bar, and to clean the premises and pipe running water thereon, doing the work
themselves. The three-room deteriorated wooden structure served as business premises and
the residence of the family. The premises had only the most meager of furnishings. The entire
family slept in a single room, the parents on a box spring and mattress, and the five children
on a mattress resting on the floor.
In early September 1958, after the Dumais family had been in Manhattan for about two
weeks, their residence there was terminated under the following circumstances. Prior to
coming to Manhattan the parents had uttered and negotiated certain checks in connection with
their operation of a produce route in another part of the state, and had issued and negotiated
more checks in connection with the taking over and operation and purchasing of food and
other supplies for the grocery store and bar in Manhattan. When certain of these checks were
not honored upon presentation for payment, a civil suit followed and criminal proceedings
were commenced against each of the parents at Fallon, Churchill County, Nevada. The deputy
sheriff from Tonopah, the county seat of Nye County, arrived in Manhattan for the purpose of
effecting the arrest of the husband and wife upon the charges pending in Churchill County.
The warrant was served upon the husband, but the wife was found to be in an unconscious
condition apparently resulting from self-administered medication. Accordingly, the wife was
taken to the nearest hospital at Tonopah, with the husband accompanying her there. She was
subsequently transferred to the hospital at Fallon. After the parents had been placed on
probation on the charges against them, the four elder children rejoined their parents and have
been with them since. The parents and the four elder children lived in Fallon except for a
brief period of not more than three months when they lived near Gerlach, in northern Washoe
County, until they left Nevada and moved to Oregon in mid-December 1959.
They were residing in Oregon at the time of the said February 4 hearing.
There was no regular foster home available in Nye County. The child Neil remained with a
Doctor and Mrs. Brown of Nye County until May 1959. The minor was then placed with a
childless couple, Mr. and Mrs. Bruno Skanovsky, also of Nye County, where he continues to
reside. The Skanovskys have provided him with a good home and proper care.
Petitioner on this appeal designates two specifications of error as requiring reversal of the
trial court, (1) insufficiency of the evidence to sustain the judgment of dismissal and (2) the
admission of certain hearsay evidence.
(1) In addition to the witnesses whose testimony tended to show neglect and failure to
provide proper care on the part of the parents, both parents and a Mrs. June Quilici, state
welfare worker, testified personally before the court, and the Browns gave their testimony in
deposition form. Bruno Skanovsky also testified showing the growth, development, and
improvement in health of the child while living with Skanovskys. The majority of the
witnesses who testified to the conditions of neglect of the child, the child's paleness,
listlessness and poor physical condition, and to the father and mother of the minor being unfit
parents, were residents of Manhattan. They based their testimony upon their observations
made during the said two weeks' period.
There appears no substantial contradiction to the testimony that the living conditions at
Manhattan of the Dumais family, including the minor Neil, now about three and a half years
of age, were sordid and neglectful by even minimum standards.
However, the evidence shows that later the parents and four elder children had lived under
better conditions at Fallon. Mrs. Quilici testified that on the two occasions in the fall of 1959,
a year after the Dumaises had left Manhattan, when she visited such house, the living
conditions there were generally neat and acceptable, that the appearance and health of the
children were excellent, and the relationship between them and their parents was good. Mr.
Dumais had a job, Mrs.
good. Mr. Dumais had a job, Mrs. Dumais part-time work, and at least one of the elder
children was attending school. The living conditions which she observed were far different
and better than the squalor, dirt and neglect which prevailed when the family was at
Manhattan. It is recognized that the conditions which the Manhattan residents observed,
served as a proper basis for the corrective action instituted by the county authorities and their
efforts to bring about proper care and living conditions for the minor. While the improved
living conditions at Fallon did not include the minor as a member of the household there, they
did tend to establish a rehabilitation of the parents and conduct on their part resulting in
improved living conditions for their children. Added to this was certain testimony given by
Mrs. Quilici, tending to show, somewhat prospectively it is true, the possibility of a
continuance of better living conditions and employment for Mr. Dumais, as hereinafter
discussed. The testimony of Mrs. Quilici in this latter regard referred to a report of that
general import which she had received from a probation officer in Oregon.
[Headnote 1]
The trial judge, after reviewing the evidence before it, and commenting upon the
significance of the finality of an order terminating parental rights and of separating the minor
not only from his natural parents, but from the other children in the family, stated his view
that the best interests of the child were of paramount consideration, that the evidence was
insufficient to justify the granting of the relief sought, and dismissed the petition. There was
in fact substantial evidence tending to show such a rehabilitation on the part of the parents
between the date of their separation from the minor children in September 1958 and the date
of the hearing on February 4, 1960 as to support the order of dismissal, and such order will
not be disturbed on this appeal.
[Headnote 2]
(2) The testimony given by the witness Mrs. June Quilici, based upon her investigation
made at the request of the trial court, included her reference to the substance of a report
she had received from a probation officer in Oregon.
of the trial court, included her reference to the substance of a report she had received from a
probation officer in Oregon. That report stated, according to the witness' testimony, that
although the Oregon probation officer did not know the Dumaises he did know the relatives
with whom they were staying, that their living conditions were good, and that, as employment
possibilities in the area were excellent, the probation officer considered that Mr. Dumais
should be able to carry out the plans which the relatives had made for the Dumaises to stay
with them and have a lot and build a home on a portion of the premises owned by the
relatives. The testimony pertaining to the contents of the Oregon probation officer's report
was obviously hearsay. Prior to making any reference to the contents of the report, the witness
testified that she had received such report. No objection being interposed, she concluded her
direct testimony by reference to the report's substance. After cross examination of the witness
on matters not related to the hearsay testimony, but which elicited further testimony
concerning the report, counsel interposed an objection to the hearsay testimony. The court
overruled such objection as not timely and thereafter denied a motion to strike the testimony.
Under these circumstances we find no error on the part of the trial court in overruling
petitioner's objection to the testimony or denying petitioner's motion to strike the same as
hearsay, for the reason that neither the objection nor motion was timely made. The hearsay
evidence having been received without objection, the court was entitled to consider it. In Diaz
v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 56 L.Ed. 500, the court cited with approval
Sherwood v. Sissa, 5 Nev. 349, 355, where this court held, If evidence secondary or hearsay
in its character be admitted without objection, no advantage can be taken of that fact
afterwards, and the jury may, indeed should, accept it as if it were admissible under the
strictest rules of evidence. Duplantis v. Duplantis, 50 Nev. 234, 236, 255 P. 1014; Killian v.
Hubbard, 69 S.D. 289, 9 N.W.2d. 700, 146 A.L.R. 708.
Judgment affirmed.
____________
76 Nev. 415, 415 (1960) Gaudin Motor Co. v. Wodarek
GAUDIN MOTOR CO., INC., Appellant, v. LOTTIE
HAMPTON WODAREK, Respondent.
No. 4281
November 9, 1960 356 P.2d 638
Department No. 4.
Action by automobile dealer against prospective customer for damage to automobile in
accident occurring while defendant was driving automobile on demonstration trip. The trial
court rendered judgment for defendant, and plaintiff appealed. The Supreme Court,
McNamee, C. J., held that evidence sustained finding that damage to bailed automobile was
result of failure of air pressure in tire, or some cause not known to defendant other than her
negligence or fault.
Affirmed.
Deaner, Butler & Adamson, of Las Vegas, for Respondent.
1. Bailment.
Where automobile is delivered to bailee in good condition and is returned in damaged state, law
presumes bailee's negligence or other fault to be the cause, and casts on bailee the burden of showing that
loss was due to other causes consistent with due care on part of bailee, and if bailee does not sustain such
burden, bailor becomes entitled as matter of law to judgment in his favor.
2. Bailment.
In action for damage to bailed automobile, where owner of vehicle met its burden by evidence showing
that automobile was delivered to bailee in good condition and was returned in damaged
condition, burden of going forward with evidence thereupon shifted to bailee.
was delivered to bailee in good condition and was returned in damaged condition, burden of going forward
with evidence thereupon shifted to bailee.
3. Bailment.
In action by automobile dealer against prospective customer for damage to automobile in accident
occurring while customer was driving automobile on demonstration trip, evidence sustained finding that
damage to bailed automobile was result of failure of air pressure in tire, or some cause not known to
customer other than her negligence or fault.
4. Bailment.
It is sufficient, in actions for loss of or damage to bailed property, for bailee, in order to escape liability,
to show to satisfaction of trier of facts that he was not negligent, or, if he was negligent in any respect, that
his negligence was not proximate cause of loss or damage, and bailee need not specifically establish exact
cause of loss, destruction or damage.
OPINION
The principal question presented on this appeal concerns the liability of a bailee for
damages or loss of an automobile, the subject of the bailment, under a bailment for the
benefit of both parties.
In this action, appellant, a car dealer, was the owner of an automobile which it delivered to
respondent, a prospective purchaser. In order to demonstrate the suitability of the automobile,
appellant authorized respondent to drive it from Las Vegas, Nevada, to Boulder City and
back. On the return trip appellant lost control of the vehicle, it left the road and turned over.
Except for its salvage value, the car was a total loss. Appellant sued respondent in tort for
damages caused by such loss.
Respondent's only explanation of her loss of control of the vehicle was her testimony that a
tire had suddenly gone flat. It was revealed after the accident that there was no blown-out tire,
and that all four tires were undamaged although the right front tire was flat. The officer who
investigated the accident testified that, in his opinion, based on the skid marks, the car was
going approximately 75 miles per hour at the time of the accident, and that 70 miles an hour
in that particular area was a safe and not unusual speed.
was a safe and not unusual speed. Respondent estimated her speed at between 60 and 65
miles per hour or a little faster.
From the foregoing, the trial court determined that there was no evidence that respondent
was negligent; that in testing the car she had the right to go 70 miles an hour or faster; that
defendant at the time of said accident was operating the automobile in a reasonable and
prudent manner; and that the accident resulted from no fault or negligence on the part of the
defendant.
[Headnote 1]
The court being the trier of the fact could properly come to this conclusion. Even if this be
true, appellant maintains that in a bailment of this nature where an automobile is delivered to
a bailee in good condition and is returned in a damaged state, the law presumes the bailee's
negligence or other fault to be the cause, and casts on the bailee the burden of showing that
the loss was due to other causes consistent with due care on the part of the bailee; that if the
bailee does not sustain such burden the bailor becomes entitled as a matter of law to a
judgment in his favor. This is the rule of the more modern decisions, and Nevada follows
such rule. Manhattan Fire & Marine Ins. Co. v. Grand Central Garage, 54 Nev. 147, 9 P.2d
682.
[Headnote 2]
In the present case the owner of the vehicle met its burden by evidence showing that the
car was delivered to the bailee in good condition and was returned in a damaged condition.
The burden of going forward with evidence thereupon shifted to the bailee. Bramlette v.
Titus, 70 Nev. 305, 267 P.2d 620. To overcome this burden, bailee introduced evidence
tending to show that the damage resulted from a tire going flat through no negligence on her
part. The bailor thereupon introduced evidence tending to show either that the tire went flat
due to her excessive speed or that she was unable to control the car after the tire went flat due
to her excessive speed. A factual question thus developed. Romney v. Covey Garage, 100
Utah 167, 111 P.2d 545.
[Headnotes 3,4]
The lower court was satisfied from the evidence that the damage to the automobile was the
result of a failure of the air pressure in one of the tires or some cause not known to respondent
other than the negligence or fault of the respondent, made its findings accordingly, and
awarded judgment in favor of respondent. This was proper. In Wyatt v. Baughman, 121 Utah
98, 239 P.2d 193, 195, the court held that it is sufficient in actions for loss of or damage to
bailed property for the defendant bailee, in order to escape liability, to show to the satisfaction
of the trier of the fact that he was not negligent, or, if he was negligent in any respect, that his
negligence was not the proximate cause of the loss or damage, and that he need not
specifically establish the exact cause of the loss, destruction or damage.
Affirmed.
____________
76 Nev. 418, 418 (1960) Fredricks v. City of Las Vegas
A. T. FREDRICKS, Appellant, v. THE CITY OF LAS
VEGAS, a Municipal Corporation, Respondent.
No. 4282
November 9, 1960 356 P.2d 639
Department No. 2.
Declaratory judgment action by assignee of all city's interest in certain lots against city to
determine rights of respective parties under contract providing terms and conditions under
which assignee could occupy and use such lots, and containing covenant that assignee would
let contract for erection of multiple-level parking structure (a) within 18 months from date of
contract, or (b) at such time as average turnover of seven automobiles per space day should
have been experienced, or (c) at such time as contract for construction could be entered
into with alternate party after giving assignee prior refusal.
such time as contract for construction could be entered into with alternate party after giving
assignee prior refusal. The trial court found that the covenant provision was not ambiguous
but was in alternative, and that assignee had not complied therewith, and assignee appealed.
The Supreme Court, Badt, J., held that the word or as used between clauses (a) and (b)
would be interpreted in its ordinary and elementary sense, giving it its disjunctive meaning,
and assignee was required to comply with both clause (a) and clause (b).
Affirmed.
Calvin M. Cory and Sidney R. Whitmore, of Las Vegas, for Respondent.
1. Municipal Corporations.
The word or as used between clauses (a) and (b) in contract provision that assignee of all city's interest
in certain lots would let contract for erection of multiple-level parking structure (a) within period of 18
months from date of contract, or (b) at such time as average turnover of seven automobiles per space day
should have been experienced for period of 30 consecutive days, would be interpreted in its ordinary and
elementary sense, giving it its disjunctive meaning, and assignee's tenure could be terminated for failure to
let contract within 18 months even if there should be no default in building structure after 30-day
demonstration of a 7-automobile turnover per space day.
2. Evidence.
Where executed written contract was clear and unambiguous on its face, there was no room for
introduction of extraneous evidence to explain its meaning.
In action by assignee of all city's interest in certain lots against city, to determine rights of respective
parties under contract providing terms and conditions under which assignee could occupy and use the lots,
evidence supported finding that preliminary negotiations and/or conversations between assignee and certain
city employees were not made part of the agreement and that such negotiations or conversations were never
intended by either party to be made part of the agreement.
In declaratory judgment action to determine rights of city and its assignee under contract providing terms
and conditions under which assignee could occupy and use lots, finding that preliminary negotiations
and conversations between assignee and certain city employees were not made part
of agreement and were not intended to be reinforced by judgment entered and by
portion of court's written opinion to effect that telephone conversation between
assignee and city manager did not alter or change the contract furnished, necessarily
implied finding that city was not estopped from enforcing contract as executed.
preliminary negotiations and conversations between assignee and certain city employees were not made
part of agreement and were not intended to be reinforced by judgment entered and by portion of court's
written opinion to effect that telephone conversation between assignee and city manager did not alter or
change the contract furnished, necessarily implied finding that city was not estopped from enforcing
contract as executed.
OPINION
Fredricks sued the city of Las Vegas for a declaratory judgment to determine the rights of
the respective parties under a contract providing the terms and conditions under which
Fredricks could occupy and use certain lots in the city. The lots were at the time held by the
city under a 20-year lease whose terms are not in issue. The contract in question assigned to
Fredricks all the city's right, title, and interest in the property and in the lease; and Fredricks
in turn assumed the city's obligation to pay the $500 monthly rental therein reserved.
1
He
further covenanted (and the meaning of such covenant was the issue before the trial court)
that he would:
4. Let a contract for the erection of a multiple-level parking structure on the above
described real property:
(a) within a period of 18 months from the date hereof; or
(b) at such time as an average turnover of seven automobiles per space day shall have been
experienced for a period of 30 consecutive days; or
(c) at such time as a contract for [such] construction could be entered into with an
alternate party after giving appellant prior refusal.
[Headnote 1]
Appellant concedes that if within the period of 18 months the city found an alternate
assignee to construct the multi-level parking structure, after prior refusal by Fredricks to
construct same, Fredricks' rights under the contract would terminate.
____________________

1
The contract was between the city and General Parking, Inc., a Nevada corporation of which Fredricks was
the president. The corporation assigned it to Fredricks. Such assignment presents no issue in this case.
the multi-level parking structure, after prior refusal by Fredricks to construct same, Fredricks'
rights under the contract would terminate. In other words, appellant concedes that the third
alternative preceded by the word or is an accelerating provision. He insists, however, that
clauses (a) and (b) are not alternatives; that the word or between these clauses should be
read in its conjunctive rather than its disjunctive sense; that he would have to fail in his
performance under both clause (a) and clause (b) before the city would have the right under
the terms of the contract to terminate his possession; that clause (a) gave him a minimum
term of possession of 18 months; that it was only after termination of the 18 months' period
under clause (a) that the provisions of clause (b) would apply; that the true meaning of clause
(b) can be found only by inserting the word later so as to make the clause read (b) at such
later time, etc.
The trial court found that said Paragraph IV is not ambiguous and is in the alternative and
that the plaintiff did not comply with the said Paragraph IV. Appellant's contention that such
finding is error is without merit. Conceding that the word or may be used, interpreted, or
construed in a conjunctive rather than a disjunctive sense to prevent an absurd or
unreasonable result, or where the context requires such construction, or such construction is
necessitated by some impelling reason in the context, there is no reason here for interpreting
it other than in its ordinary and elementary sense and giving it its disjunctive meaning.
Despite the fact that plaintiff's complaint claimed only that he had complied with the
conditions of his contract and that after his 18 months' term his tenure could not be
terminated unless in addition there was a default in building a multi-level parking structure
after a 30-day demonstration of a seven-car turnover per space day, he sought to prove at the
trial that the word later was inadvertently omitted from paragraph (b) (so as to read at such
later time), that there was a mutual mistake in omitting it, that the omission was the result
of clerical error, that the clause as written did not express the intention of the parties,
and that the city manager had represented that the city would never contend that, under
the lease as drawn, Fredricks' occupancy would terminate at the end of 1S months if he
had not let a contract for the construction of the multi-level parking structure within that
time.
result of clerical error, that the clause as written did not express the intention of the parties,
and that the city manager had represented that the city would never contend that, under the
lease as drawn, Fredricks' occupancy would terminate at the end of 18 months if he had not
let a contract for the construction of the multi-level parking structure within that time. The
complaint did not allege mutual mistake, did not allege clerical error, did not allege that the
executed contract failed to express the intention of the parties, did not allege fraudulent
representations or other matters in estoppel, and did not seek a reformation of the contract.
A great deal of evidence was introduced by plaintiff, over objection, concerning the
negotiations that led up to the execution of the final contract, and in explanation of why the
plaintiff signed the contract in its final form despite the fact that it did not contain a provision
upon which he had insisted. The learned trial judge expressed considerable doubt that the
testimony or the preliminary unexecuted drafts of the contract were admissible but decided to
admit them for his consideration. While on several of these occasions he obtained from both
parties their approval of the court's conclusion as to the issue presented for its determination,
namely, its interpretation of the meaning of the contract in the final form as executed by the
parties, plaintiff, over objection, introduced evidence in support of his additional contentions
above noted.
[Headnotes 2, 3]
Since the executed written contract was clear and unambiguous on its face, there was no
room for the introduction of extraneous evidence to explain its meaning. Woods v. Bromley,
69 Nev. 96, 241 P.2d 1103; Reno Club, Inc. v. Young Investment Co., 64 Nev. 312, 182 P.2d
1011, 173 A.L.R. 1145; Talbot v. Nevada Fire Insurance Co., 52 Nev. 145, 283 P. 404, 286 P.
1118. This being so, it is unnecessary for us to discuss the evidence supporting appellant's
contentions concerning the intention of the parties. However, assuming that the contentions
of appellant as hereinabove noted had been properly pleaded, or had been tried with the
consent of the parties, thus making such issues proper for the consideration of the trial
court and for the consideration of this court on appeal {Poe v. La Metropolitana Compania
Nacional, S.A., 76 Nev. 306, 353 P.2d 454; United Tungsten Corporation v. Corporation
Service, Inc.,
properly pleaded, or had been tried with the consent of the parties, thus making such issues
proper for the consideration of the trial court and for the consideration of this court on appeal
(Poe v. La Metropolitana Compania Nacional, S.A., 76 Nev. 306, 353 P.2d 454; United
Tungsten Corporation v. Corporation Service, Inc., 76 Nev. 329, 353 P.2d 452), there was
substantial evidence to support the court's finding that the preliminary negotiations [which
included submission and discussion of sundry preliminary drafts of the proposed contract]
and/or conversations between the plaintiff and certain employees of the city [on which
Fredricks relies to establish an estoppel] were not made a part of the * * * agreement between
the parties, and that said negotiations or conversations were never intended [by either party]
to be made a part of said agreement.
[Headnote 4]
We feel that the foregoing finding, reinforced by the language used in the court's written
opinion to the effect that the telephone conversation between Fredricks and the city manager
did not alter or change the contract, and as reinforced by the judgment entered, furnishes a
necessarily implied finding negativing the contention that the city was estopped from
enforcing the contract as executed. Krick v. Krick, 76 Nev. 52, 348 P.2d 752.
Appeal dismissed.
____________
76 Nev. 424, 424 (1960) Culinary Workers v. Haugen
CULINARY AND HOTEL SERVICE WORKERS UNION, Local No. 226, and AL
BRAMLET, Secretary of Said Defendant Organization, Appellants, v. EDWARD HAUGEN,
Jr., Respondent.
No. 4360
November 18, 1960 357 P.2d 113
Appeal from Eighth Judicial District Court, Clark County; George E. Marshall, Judge,
Department No. 4.
Action where in the lower court rendered the judgment challenged on appeal. On
respondent's motion to dismiss the appeal, the Supreme Court, Badt, J., held that where
written notice of entry of judgment was served and filed on May 5 and on May 12 parties
signed stipulation extending time to move for new trial to June 6, court could not, by ex parte
order entered on June 2, extend time to move for new trial until June 27, even if extension by
stipulation was valid.
(Petition for rehearing denied December 23, 1960.)
W. Albert Stewart, Jr., of Las Vegas, and Morris Sankary, of San Diego, California, for
Appellants.
Franklin Rittenhouse, of Las Vegas, and McNamee & McNamee, of Las Vegas, for
Respondent.
1. New Trial.
Where written notice of entry of judgment was served and filed on May 5 and on May 12 parties signed
stipulation extending time to move for new trial to June 6, court could not, by ex parte order entered on
June 2, extend time to move for new trial until June 27, even if extension by stipulation was valid. NRCP
6(b), 59(b), 73(a).
2. Courts.
Judgment.
District court rule was entitled to encouragement of Supreme Court; but correction of notice of entry of
judgment, by lining out April with typewriter and inserting May, did not destroy effectiveness of
notice, even if such correction constituted an interlineation in violation of district court rule. District
Court Rules 2, subd. 6; 19; Supreme Court Rule 2, subd. 8; NRCP 6(b).
New Trial.
Rule providing that court may not extend time for filing motion for new trial or for filing notice of appeal
is mandatory rather than permissive.
rather than permissive. District Court Rules 2, subd. 6; 19; Supreme Court Rule 2, subd. 8; NRCP 6(b).
In absence of compliance with jurisdictional requirement for filing notice of appeal within time limited by
rules, court cannot hear appeal on merits. NRCP 6(b), 59(b), 73(a).
5. Judgment.
Motion for relief from judgment, on ground of mistake, inadvertence, surprise, excusable neglect,
misconduct and on ground that judgment was void, was largely within court's discretion. NRCP 60.
OPINION
On Motion to Dismiss Appeal
Appeal Dismissed
Respondent has moved to dismiss the appeal of appellants upon the grounds (1) that the
notice of appeal was not filed within the time prescribed by NRCP; (2) that the record of
appeal was not filed or docketed in time; and (3) that the opening brief of appellants was not
filed in time.
As we are of the opinion that the motion to dismiss must be granted upon the first ground,
the untimely filing of the notice of appeal, the second and third grounds of the motion need
not be considered.
Written notice of the entry of judgment was served and filed May 5, 1960. Notice of
appeal was filed July 22, 1960. On May 12, (1960) the parties signed a stipulation extending
the time to move for new trial to June 6, 1960. Such stipulation was approved by the court.
On June 2, 1960 the trial court entered an ex parte order extending time to move for new trial
to June 27, 1960, and on the last-named date the motion for new trial was filed. On July 19,
1960 plaintiff moved the district court to strike the defendants' motion for new trial. No order
has been made by the district court granting or denying the motion for new trial or granting or
denying the motion to strike the motion for new trial.
The rules involved in the present motion to dismiss the appeal are Rules 59{b), 73{a),
and 6{b), NRCP.
the appeal are Rules 59(b), 73(a), and 6(b), NRCP. Rules 59(b) and 73(a) are respectively as
follows:
Rule 59(b) Time for Motion. A motion for a new trial shall be served not later than 10
days after service of written notice of the entry of the judgment.
Rule 73 (a) When and How Taken. When an appeal is permitted the time within which an
appeal may be taken shall be 30 days from service of written notice of entry of the judgment
appealed from. The running of the time for appeal is terminated by a timely motion made
pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this
subdivision commences to run and is to be computed from service of written notice of the
entry of any of the following orders made upon a timely motion under such rules: * * *
granting or denying a motion for a new trial under Rule 59. * * *
Rule 6(b), concerning the enlargement of time, reads as followsthe italicized clause
appearing only in the Nevada rule but not in the federal rule:
Rule 6(b) Enlargement. When by these rules or by a notice given thereunder or by order
of court an act is required or allowed to be done at or within a specified time, the parties, by
written stipulation of counsel filed in the action, may enlarge the period, or the court for
cause shown may at any time in its discretion (1) with or without motion or notice order the
period enlarged if request therefor is made before the expiration of the period originally
prescribed or as extended by a previous order or (2) upon motion made after the expiration of
the specified period permit the act to be done where the failure to act was the result of
excusable neglect; but it may not extend the time for taking any action under Rules 25, 50(b),
52(b), 59(b), (d) and (e), 60(b), and 73(a) and (g), except to the extent and under the
conditions stated in them. In all other respects the Nevada Rule 6(b) is identical with the
Federal Rule 6(b).
Our Rule 6(b), in identical wording with Federal Rule 6(b), limits the right of the court to
enlarge the time for filing motion for new trial or notice of appeal in the following words: *
* * but it may not extend the time for taking any action under rules 59{b) [motion for new
trial] * * * and 73{a) [notice of appeal]."
time for taking any action under rules 59(b) [motion for new trial] * * * and 73(a) [notice of
appeal].
If the appellants' motion for new trial was timely filed, then, in the absence of any notice
given of the order of court denying same, their appeal was timely filed. If the motion for new
trial was not timely filed, it did not toll the running of time within which to file the notice of
appeal from the judgment. So much is clear. Our only concern, then, is whether the motion
for new trial was timely filed.
The federal courts have on numerous occasions held that under the federal rule the court
was without jurisdiction to extend the time for filing motion for new trial. Raughley v.
Pennsylvania Railroad Company, 3 Cir., 230 F.2d 387; John E. Smith's Sons Co. v. Lattimer
Foundry & Mach. Co., D.C., 19 F.R.D. 379; Safeway Stores v. Coe, 78 U.S.App. D.C. 19,
136 F.2d 771, 148 A.L.R. 782; 1 Barron and Holtzoff, Federal Practice & Procedure, 214,
p. 785.
[Headnote 1]
Appellants, however, seek to distinguish these cases by reason of the difference between
the federal rule and the Nevada rule and call attention to the fact that while under the federal
rule authority is given only to the court and not to the parties, by stipulation, to enlarge time
for the performance of necessary acts under the rules, under the Nevada statute the parties
may likewise by stipulation extend time. Appellants call attention further to the fact that in
the present instance the parties did by stipulation extend the time, and that the prohibition
against extension of time for filing motion for new trial and for filing notice of appeal applies
only to the court and not to the parties. This, however, under the record, cannot avail
appellants. Since notice of judgment was served May 5, 1960 and since the parties stipulated
for extension of time for filing motion for new trial to June 6, 1960 (and in this opinion we do
not find it necessary to pass upon the validity of such extension by stipulation), the extension
granted (or attempted to be granted) by stipulation expired June 6, 1960.
6, 1960. The filing of the motion for new trial on June 27, 1960 can find justification only
under the ex parte order of the court filed June 2, 1960 and not under the stipulation of the
parties.
Accordingly, it is clear that there was not a timely motion for new trial and consequently
no termination of the running of the time for appeal, and respondent's motion to dismiss the
appeal must be granted.
[Headnote 2]
The notice of entry of judgment, the receipt of the copy of such notice, the findings of fact
and the conclusions of law, and the judgment all bore date May 5, 1960. In all of these
instruments the month, April, had been corrected by lining the same out with the typewriter
and inserting the word May. Appellants contend that such correction, thus made without
the clerk's notation of the change made before filing, is contrary to the requirements of Rule
19 of the Rules of the District Court. While compliance with the district court rule (which
also contains a requirement that all pleadings and documents intended for the district court
files shall be on paper known as legal cap of good quality) is entitled to the encouragement
of this court, we are unwilling to say that the violation thereof (if the correction described
constituted an interlineation in violation of the rule) destroyed the effectiveness of the
notice.
[Headnote 3]
Appellants further contend that Rule 6(b) to the effect that the court may not extend the
time for filing motion for new trial or for filing notice of appeal is permissive and not
mandatory and that the district court was therefore authorized in its discretion to extend the
time. Appellants refer to Rule 2(8) of the Supreme Court and 2(6) of the Rules of the District
Court, both of which define shall as mandatory and may as permissive. It does not
logically follow, however, that the requirement that the court may not extend the time is
anything but prohibitive. John E. Smith's Sons Co. v. Lattimer Foundry & Mach. Co., supra,
Safeway Stores v. Coe, 7S U.S.App.
supra, Safeway Stores v. Coe, 78 U.S.App. D.C. 19, 136 F.2d 771, 148 A.L.R. 782.
[Headnote 4]
While this court has often expressed its adherence to hearing appeals on the merits rather
than dismissing the same on technical grounds, it cannot do so in absence of compliance with
the jurisdictional requirement for filing notice of appeal within the time limited by the rules.
Rogers v. Thatcher, 70 Nev. 98, 255 P.2d 731.
The appeal from the judgment is hereby dismissed.
On Subsequent Proceedings by Appellant
The motion to dismiss the appeal above disposed of was ordered submitted October 3,
1960. The opinion was in process of being signed and filed when, on October 28, 1960,
appellants filed a document entitled New Record on Appeal. Although the foregoing
opinion notes that the defendants' motion for new trial and the plaintiff's motion to strike the
motion for new trial had never been disposed of by the trial court, the new record on appeal
shows that on September 30, 1960, the trial court filed an opinion and decision granting
plaintiff's motion to strike defendants' motion for new trial. The trial court's opinion is almost
identically along the lines of this court's foregoing opinion. The new record includes a notice
of appeal from such order, and from said order if and to the extent that said order can be
considered and treated as an order denying plaintiff's motion for a new trial. Such notice is
dated and filed October 4, 1960. From the new record it also appears that on October 5, 1960
defendants moved for relief from the judgment under Rule 60 on the ground of mistake,
inadvertence, surprise, excusable neglect, misconduct on the part of plaintiff, and on the
ground that the judgment is void. This was supported by affidavit reciting the same facts as to
the stipulation and order extending time for motion for new trial, etc., and the reliance of the
defendants thereon, as disposed of in the foregoing opinion. It further appears that an affidavit
in opposition was filed on October 7, 1960, rejecting such claim.
rejecting such claim. The new record also contains a notice of appeal, dated October 21,
1960, from the court's order denying defendants' motion to strike plaintiff's notice of entry of
judgment. It also contains a notice of appeal filed the same date from the court's order
denying defendants' motion for relief under Rule 60.
[Headnote 5]
It would be futile to put the parties to the necessity of further briefs on the merits or for
further motions supported by briefs on the issues raised by the three new notices of appeal.
With one exception, all issues have been disposed of in the foregoing opinion. The only
exception has to do with the appeal from the court's denial of relief from the judgment under
Rule 60. Not only was this largely within the court's discretion, but we do not see how the
court could have reached any other conclusion than it did.
It is therefore further ordered that the appeal from the trial court's order granting the
plaintiff's motion to strike defendants' motion for new trial and the defendants' appeal from
the court's order denying their motion to strike the notice of entry of judgment and the
defendants' appeal from the court's order denying the defendants' motion for relief under Rule
60 be, and each of such appeals is, dismissed.
Pike, J., and Wines, D. J., concur.
McNamee, C. J., being disqualified, the Governor commissioned Honorable Taylor H.
Wines, Judge of the Fourth Judicial District Court, to sit in his place.
____________
76 Nev. 431, 431 (1960) La Vergne v. Fogliani
In the Matter of the Application of DALLAS LA
VERGNE for a Writ of Habeas Corpus.
DALLAS LA VERGNE, Appellant, v. JACK FOGLIANI, Warden of Nevada
State Prison, Respondent.
No. 4362
November 22, 1960 357 P.2d 116
Appeal from the First Judicial District Court, Ormsby County; Richard R. Hanna, Judge,
Department No. 2.
Habeas corpus proceeding. The lower court entered order denying petitioner discharge
from custody, and petitioner appealed. The Supreme Court held that the evidence was
insufficient to show illegal restraint.
Affirmed.
[Reporter's note: Petition for writ of certiorari was denied by the Supreme Court of the
United States, March 27, 1961, 365 U. S. 861.]
Dallas La Vergne, in propria persona.
Roger D. Foley, Attorney General, Norman H. Samuelson, Deputy Attorney General, for
Respondent.
1. Habeas Corpus.
In habeas corpus proceeding by petitioner who had been found guilty of voluntary manslaughter,
evidence failed to show that petitioner had been beaten and mistreated before and during his trial or that he
had been denied his rights to have witnesses in his behalf or that he had been held incommunicado or that
counsel appointed for him had made no attempt to properly defend him.
2. Habeas Corpus.
Where there was nothing in the record to show that habeas corpus petitioner was detained other than by a
proper order of commitment issued by a court of competent jurisdiction in the exercise of such jurisdiction,
order restoring petitioner to custody of warden of state prison was proper. NRS 34.640.
OPINION
Per Curiam:
This is an appeal from an order of the court below denying appellant discharge from
custody under a writ of habeas corpus.
of habeas corpus. The matter is before this court on the merits of the appeal.
Petitioner was arrested in the County of Clark, State of Nevada, on a charge of murder.
Counsel was appointed to represent him and after a preliminary hearing in the Justice's Court
of Las Vegas Township he was bound over for trial in the District Court of Clark County.
Under the information filed in said District Court, he was tried by jury and found guilty of
voluntary manslaughter. Thereafter he was sentenced to a term in the Nevada State Prison of
not less than five years nor more than ten years. No appeal was taken from said verdict or
sentence. Pursuant thereto petitioner was transferred to the Nevada State Prison where he is
now detained.
[Headnote 1]
In petitioning the court below for a writ of habeas corpus, petitioner alleged that he was
illegally held by respondent for the following reasons:
1. Petitioner was physically beaten and maltreated before and during his trial in Case No.
594 of the Eighth District Court of Nevada.
2. Petitioner was denied his rights to have witnesses in his behalf in said Case No. 594.
3. Before trial petitioner was held incommunicado and not allowed to talk to anyone but
the police in Case No. 594.
4. Counsel appointed by the State in case No. 594 was inadequate and made no attempt
to properly defend petitioner, and the said Court made no attempt to help Petitioner in this
respect but rather encouraged it.
The matter came on regularly for hearing in the court below which found that the said
allegations upon which petitioner's contention of illegal restraint is based were not supported
or established by evidence.
[Headnote 2]
There is nothing in the record before us to show that petitioner is detained other than by a
proper order of commitment issued by a court of competent jurisdiction in the exercise of
such jurisdiction.
in the exercise of such jurisdiction. Under such circumstances, the order of the lower court
restoring petitioner to the custody of respondent was proper. NRS 34.640.
Affirmed.
____________
76 Nev. 433, 433 (1960) Hayashida v. District Court
FRANK K. HAYASHIDA, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, In and for the County of Washoe, Respondent.
No. 4325
December 1, 1960 357 P.2d 117
Original petition for a writ of prohibition.
Original proceeding for writ of prohibition to prevent court from continuing with a tort
action against petitioner on ground that court had no jurisdiction over petitioner. The
Supreme Court, McNamee, C. J., held that where truck and trailer were being unloaded at job
site which was a half mile from highway and engine was stopped and driver was out of truck
when accident occurred, the truck was not being used and operated over public roads, streets
or highways within statute providing for substituted service when vehicle is so used.
Writ issued.
Goldwater, Taber & Hill, of Reno, for Petitioner.
Belford, Anglim & Brown, of Reno, for Respondent.
Automobiles.
Where truck and trailer were being unloaded at job site which was a half mile from highway and
engine was stopped and driver was out of truck when accident occurred, the truck was not being used
and operated over public roads, streets or highways" within statute providing for
substituted service when vehicle is so used.
or highways within statute providing for substituted service when vehicle is so used. NRS 14.070.
OPINION
This is an original proceeding wherein petitioner seeks a writ of prohibition to prevent
respondent court from continuing with a tort action against him on the ground that it has no
jurisdiction over petitioner.
One Claud Head sustained personal injuries when a truck and trailer, owned by petitioner,
was being unloaded at a job site where the truck had parked a half mile from Nevada State
Highway Route 27. At the time of the accident the engine was stopped and the driver was out
of the vehicle. The said tort action was commenced by Head who alleged therein that the
accident resulted in part from the negligent unloading of the truck at said job site by
petitioner's employee.
Pursuant to NRS 14.070 petitioner was served with process by service on the director of
the department of motor vehicles. Subsection 1 of NRS 14.070 reads as follows:
The use and operation of a motor vehicle over the public roads, streets or highways in the
State of Nevada by any person, either as principal, master, agent or servant, shall be deemed
an appointment by such operator, on behalf of himself and his principal or master, of the
director of the department of motor vehicles to be his true and lawful attorney upon whom
may be served all legal process in any action or proceeding against him growing out of such
use or resulting in damage or loss to person or property, and the use or operation shall be a
signification of his agreement that any such process against him which is so served shall be of
the same legal force and validity as though served upon him personally within the State of
Nevada.
The respondent court denied petitioner's motion to quash such service of summons.
The only question before us in this proceeding is whether NRS 14.070 has application to
accidents occurring under circumstances as heretofore set forth.
whether NRS 14.070 has application to accidents occurring under circumstances as heretofore
set forth.
In construing a statute similar to NRS 14.070, whose pertinent provisions are identical
therewith, the Supreme Court of Illinois held that substituted service was insufficient. Brauer
Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 50 N.E.2d 836, 842, 148 A.L.R.
1208. In that case an accident occurred during the unloading of a truck on private premises.
To reach such premises the truck had traversed the highways of the state. The court in holding
that such an accident was not within the statutory provision which permits constructive
service of summons in any action or proceeding growing out of the use and operation of a
motor vehicle over the public highways said:
The difficulty with appellant's position is that it is based on the proposition that the
unloading was an incident of the contract of carriage. As between the shipper and the carrier,
this is no doubt true. It does not necessarily follow, however, that such unloading was
incident to the use of the highway. We are not here concerned with the relations or with any
contract existing between the shipper and the carrier. The sole question here is whether the
injury sustained by Lindstrom was one growing out of the use of the highway. * * * The
words or resulting in damage or loss to person or property' refer only to damage or loss
growing out of the use of the highways, as specifically limited by the preceding language of
the section. These general words must be limited by the particular and specific words which
precede them. The general words must be construed to include only actions for damages
growing out of the use of the highways as indicated by the specific words which they follow.
Accord: Langley v. Bunn, 225 Ark. 651, 284 S.W.2d 319; Ellis v. Georgia Marble Co., 191
Tenn. 229, 232 S.W.2d 45; O'Sullivan v. Brown, 5 Cir., 171 F.2d 199 (accident happened on
U. S. Government land with egress and ingress only through guarded gates); DeLuca v.
Consolidated Freight Lines, D.C. N.Y., 132 F. Supp. 863 (injuries received while unloading a
tractor-trailer stopped at a pier); and Mulligan v. Jersey Truck Renters, 196 Misc.
tractor-trailer stopped at a pier); and Mulligan v. Jersey Truck Renters, 196 Misc. 828, 95
N.Y.S.2d 232 (plaintiff injured by a sheet of cardboard which was being unloaded from
defendant's truck).
Statutes providing for constructive or substituted service of process on nonresident
motorists are in force in nearly all, if not all, of the states. While many of the cases construing
the same are in conflict, the reason more often than not results from the different wording of
the various statutes. Nevertheless it is impossible in some instances to reconcile conflicting
views.
In McDonald v. Superior Court, 43 Cal.2d 621, 275 P.2d 464, 466, substituted service
upon the owner of a truck was approved in a tort action growing out of an accident which
occurred during the unloading of the vehicle while it was parked partially on a street and
partially on the sidewalk. The negligence however was predicated upon the defective
condition of the truck, the court holding that any accident occurring during the normal use of
the vehicle that is traceable to the negligent renting of it in a defective condition for use upon
the highways of this state is one resulting from its operation within the meaning of section
404. The California Supreme Court in this case failed to pass on whether or not the actual
loading or unloading of a vehicle is part of its operation so as to make a nonresident amenable
to service in an action based solely on negligence occurring in the process of loading or
unloading. In lieu thereof it referred to the holdings in the Brauer case and others in accord
therewith with implied approval, although the court in the case of Schefke v. Superior Court,
136 Cal.App.2d 715, 289 P.2d 542, commenting upon the McDonald and Brauer cases states
otherwise.
We are unable to see how there could be any possible connection in the unloading of the
truck in this case with the use of the highway. We conclude therefore that the unloading of a
vehicle which is entirely off the public roads, streets and highways is not part of its use and
operation upon such public passageways within the meaning of NRS 14.070.
As stated in the Brauer case [383 Ill. 569, 50 N.E.2d 843]:
The constitutionality of a similar statute of the State of Massachusetts was sustained by
the Supreme Court of the United States on the ground that the implied consent of a
nonresident, by the use of the highway, to the appointment of an attorney for service of
process, was limited to proceedings growing out of accidents or collisions on a highway in
which the nonresident may be involved. Hess v. Pawloski, 274 U.S. 352, 47 S. Ct. 632, 71
L.Ed. 1091.
We think it is clear from the opinion in that case that a statute providing for such
substituted service, if not limited to actions or proceedings growing out of accidents or
collisions on the highways, would be invalid under section 2, article IV, of the Federal
constitution.
As the petitioner was not properly brought into the jurisdiction of this state under our
substituted service statute, respondent court is without jurisdiction to proceed with said tort
action against petitioner.
Let the writ of prohibition issue.
____________
76 Nev. 437, 437 (1960) State v. Eisentrager
THE STATE OF NEVADA, Appellant, v. THOMAS ARTHUR EISENTRAGER, Also
Known as Thomas Tripp, Respondent.
No. 4317
December 5, 1960 357 P.2d 306
Prosecution for murder. The trial court discharged jury which had not reached a verdict
and defendant moved for order dismissing information. The trial court dismissed information
and state appealed. The Supreme Court, Pike, J., held that where previously trial court, on at
least two occasions, inquired of foreman how vote stood, and foreman's answers showed
that vote had fluctuated between eight to four and ten to two, with no change in the ten
to two vote in preceding 12-hour period and with only a change of one juror during
preceding court day, discharge of jury on basis that it was unable to come to a conclusion
was not an abuse of discretion and subsequent information should not have been
dismissed on basis that defendant had been once in jeopardy.
on at least two occasions, inquired of foreman how vote stood, and foreman's answers
showed that vote had fluctuated between eight to four and ten to two, with no change in the
ten to two vote in preceding 12-hour period and with only a change of one juror during
preceding court day, discharge of jury on basis that it was unable to come to a conclusion was
not an abuse of discretion and subsequent information should not have been dismissed on
basis that defendant had been once in jeopardy.
Judgment reversed.
(Petition for rehearing denied January 9, 1961.)
Roger D. Foley, Attorney General; Jack C. Cherry, District Attorney, Clark County;
Charles L. Garner, Deputy District Attorney, Clark County, for Appellant.
Gordon L. Hawkins and Tad Porter, of Las Vegas, for Respondent.
1. Criminal Law.
Trial court has power, in exercise of sound, legal discretion, to discharge jury after cause has been
submitted to it, without consent of defendant and without discharge constituting a legal bar to a future trial
by reason of constitutional provision prohibiting double jeopardy for the same offense, and that principle
applies, in all cases of manifest necessity, where such necessity arises from some physical cause occurring
during the trial or the deliberation of the jury, or from inability of jury to agree upon a verdict. NRS
175.405.
2. Criminal Law.
Where trial court, on at least two occasions, inquired of foreman how vote stood, and foreman's answers
showed that vote had fluctuated between eight to four and ten to two, with no change in the ten to two vote
in preceding 12-hour period and with only a change of one juror during preceding court day, discharge of
jury on basis that it was unable to come to a conclusion was not an abuse of discretion and subsequent
information should not have been dismissed on basis that defendant had been once in jeopardy. NRS
175.405.
OPINION
Eisentrager, respondent herein, was charged by an information filed in Clark County,
Nevada, with the crime of murder and with being a habitual criminal.
crime of murder and with being a habitual criminal. Respondent pleaded not guilty to the
charges and, after a jury trial lasting about four weeks, the issue of respondent's guilt as to the
murder charge was submitted to the jury for its consideration on December 29, 1959. Some
42 hours after the jury had received the case, the jury was brought into court on December 31,
1959 and, not having reached a verdict, was discharged by the court. Subsequently,
respondent moved for an order dismissing the information, basing the motion upon the
ground that Eisentrager had been once in jeopardy. The motion to dismiss was heard and
granted by a trial judge other than the judge who had presided at the trial. This appeal by the
state is from the order dismissing the information.
[Headnote 1]
In its written opinion the trial court relied upon a decision of this court in Ex Parte
Maxwell (1876), 11 Nev. 428, 435. In the last referred to decision it considered the provisions
of sec. 397 of the then Criminal Practice Act of this state, which provisions were identical
with those of NCL 11007, now NRS 175.405, in effect during all proceedings had in this
case, and reading as follows: * * * the jury shall not be discharged after the cause is
submitted to them until they have agreed upon their verdict and rendered it in open court, * *
* or unless, at the expiration of such time as the court may deem proper, it satisfactorily
appear that there is no reasonable probability that the jury can agree.' The decision in Ex
Parte Maxwell recognized the power of the trial court, in the exercise of a sound, legal
discretion, to discharge the jury after the cause had been submitted to it, without the consent
of the defendant and without the discharge constituting a legal bar to a future trial by reason
of the constitutional provision prohibiting double jeopardy for the same offense. It also
recognized that this principle applies in all cases of manifest necessity * * * whether such
necessity arises from some physical cause occurring during the trial or the deliberation of the
jury, or from the inability of the jury to agree upon a verdict. The opinion held that the
particular facts and circumstances appearing upon the record were insufficient to
authorize the court, in the exercise of a legal discretion, to discharge the jury without the
defendant's consent, stating that the only basis appearing in the record for the exercise of
the court's discretion in dismissing the jury was that the foreman of the jury had stated
that the jury was unable to agree upon a verdict.
opinion held that the particular facts and circumstances appearing upon the record were
insufficient to authorize the court, in the exercise of a legal discretion, to discharge the jury
without the defendant's consent, stating that the only basis appearing in the record for the
exercise of the court's discretion in dismissing the jury was that the foreman of the jury had
stated that the jury was unable to agree upon a verdict. This was held to be an insufficient
basis for the exercise of such discretion and that, under the circumstances disclosed by the
record, the discharge of the jury was equivalent to a verdict of acquittal. Certain language
1
appearing in the opinion at page 437 indicates that, if the record fails to establish the
existence of the facts as determined by the court in the exercise of its discretion to discharge
the jury by reason of its being unable to agree upon a verdict, the discharge of the jury was an
illegal exercise of power on the part of the court. The real issue before the trial court there
was whether the jury could agree upon a verdict. NRS 175.405. As to what the record must
show in this regard, we are in accord with the decision of the Supreme Court of California in
People v. Greene (1893), 100 Cal. 140, 34 P. 630, where that court in construing sec. 1140 of
the penal code of that state, which is identical with the provisions of the Nevada statute here
under consideration, with reference to the authority of the court to discharge the jury at the
expiration of such time as the court may deem proper, if it satisfactorily appears that there
is no probability that the jury can agree, stated The reasons upon which the court deems it
proper to discharge the jury are not required to be placed on record. It is sufficient that it
shows the jury were unable to agree. The judge is not bound to take as final the statement of
the jury that they cannot agree upon a verdict, but when such a statement is made, the court
below, familiar with the nature of the evidence, and probably the temperaments of the
men who compose the jury, is better qualified to say whether there is a reasonable
probability of an agreement than the appellate court.
____________________

1
The court may have been satisfied that the jury were unable to agree upon a verdict, and that there was no
reasonable probability of their doing so upon further consultation and deliberation. But these were essential
facts, the existence of which ought to be determined by the court and established by the record.
with the nature of the evidence, and probably the temperaments of the men who compose the
jury, is better qualified to say whether there is a reasonable probability of an agreement than
the appellate court. Certainly the latter ought not to interfere with the ruling, except in cases
of clear abuse of discretion.
[Headnote 2]
The transcript of proceedings in the appeal before us shows that the trial court, on at least
two occasions prior to discharging the jury, had inquired of the foreman how the vote stood,
and the foreman's answers showed in effect that the vote had fluctuated between eight to four
and ten to two, with no change in the ten to two vote in the 12-hour period preceding the final
session of the court at which the jury was discharged and with only a change of one juror
during the jury's deliberations throughout the preceding court day. The minutes of the court
recite that the court discharged the jury because it was unable to come to a conclusion, and
the remarks of the judge in discharging the jury include his reference to the fact that the jury
had been unable to come to a conclusion and that it was not unusual to have a hung jury.
All the foregoing appears in the record and takes the instant case out of the rule so strictly
pronounced by Earll, J.,
2
in the Maxwell case, where the record was confined to the
statement that the jury retired * * * and subsequently returned into court and by their
foreman stated that they were unable to agree upon a verdict. Whereupon the court discharged
the jury from further consideration of the case. The court stated: The record is silent as to
the length of time the jury were out * * *.
There were sufficient facts before the trial court upon which to exercise its discretion in
discharging the jury, and there is no showing of any abuse of that discretion.
The order appealed from is hereby reversed.
____________________

2
Beatty, J., while concurring in the court's order remanding the prisoner to the custody of the sheriff,
expressly withheld any expression of opinion as to the effect of the discharge of that jury.
____________
76 Nev. 442, 442 (1960) Kirk v. Parsons
In the Matter of the Contested Nomination of JEWEL E. PARSONS for the Office of County
Commissioner.
E. L. (Ted) KIRK, Appellant, v.
JEWEL E. PARSONS, Respondent.
No. 4374
December 7, 1960 357 P.2d 120
Appeal from the Fifth Judicial District Court, Esmeralda County; Taylor H. Wines,
Presiding Judge.
Proceeding on petition to contest nomination of a specified person, by one of the major
parties, for office of county commissioner. The lower court entered judgment dismissing the
contest, and an appeal was taken. The Supreme Court, McNamee, C. J., held that rule of civil
procedure pertaining to computation of periods of time and providing for exclusion of
intermediate Sundays where the period of time prescribed is less than seven days, had no
application to an election contest, and therefore plaintiff's petition to contest, filed on the
sixth day after the completion of a canvass of votes, was not timely filed, even though such
six-day period included an intermediate Sunday.
Affirmed.
Diehl and Recanzone, of Fallon, for Respondent.
1. Time.
Rule of civil procedure pertaining to computation of periods of time and providing for exclusion of
intermediate Sundays where the period of time prescribed is less than seven days, had no application to an
election contest, and therefore plaintiff's petition to contest, filed on the sixth day after the completion of a
canvass of votes, was not timely filed, even though such six-day period included an intermediate Sunday.
NRS 294.295; NRCP 6(a).
2. Elections.
Proceedings to contest an election are special and differ substantially from civil proceedings which afford
a common-law remedy.
OPINION
On September 14, 1960, the board of county commissioners of Esmeralda County, after
the completion of the canvass of the votes at the last primary election, declared that
respondent was the candidate who received the highest vote of the Democratic Party for the
unexpired term of the office of county commissioner and thus was the nominee of that party
for said office. Appellant, who also was a Democratic candidate for the same office, desiring
to contest the respondent's nomination filed a petition to contest the same in the lower court
on September 20, 1960.
NRS 294.295 provides: Any candidate at a primary election desiring to contest the
nomination of another candidate for the same office may proceed within 5 days after the
completion of the canvass as provided in NRS 294.265. The contestee shall be required by
the order of a justice of the supreme court or a judge of the district court to appear and abide
the further order of the court.
The filing took place on the 6th day after the completion of the canvass and for this reason
the lower court dismissed the contest. Appeal is from such order of dismissal.
The only question presented here is whether appellant's petition to contest was timely
filed.
[Headnote 1]
Appellant contends that when the period of time prescribed is less than 7 days, an
intermediate Sunday must be excluded in the computation; that Sunday, September 18th, was
an intermediate Sunday and should be excluded from the computation; and that therefore
September 20th would be within the 5-day period prescribed. This contention is based on
Rule 6(a), Nevada Rules of Civil Procedure.
1
We have concluded that Rule 6{a) NRCP has
no application to election contests.
____________________

1
Rule 6(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of
court, or by any applicable statute, the day of the act, event, or default after which
We have concluded that Rule 6(a) NRCP has no application to election contests.
[Headnote 2]
Proceedings to contest an election are special and differ substantially from civil
proceedings which afford a common-law remedy. Brown v. Dunn, 35 Nev. 166, 127 P. 81;
Garrard v. Gallagher, 11 Nev. 382.
As the rule is well settled that, as to the matter to which it relates a special law controls a
general one, these provisions of the primary election act for initiating contests by affidavit,
being special, are in force, and cannot be ignored by the court, and are not controlled or
eliminated by general provisions of the civil practice act providing for a formal action and the
necessary requirements relating to parties and the allegations of the complaint. As the time is
short in which a contest may be conducted and errors corrected relating to a primary election,
it is apparent that the legislature believed that necessity or good reason existed for providing a
summary and speedy proceeding by affidavit. Brown v. Dunn, supra.
If a simplified procedure for initiating an election contest is desirable because of the
element of time, and prevails over the procedural provisions of general statutes or rules, a
fortiori the time provisions specified in the special statute would prevail over a general
procedural rule relating to time such as Rule 6(a).
In Vailes v. Brown, 16 Colo. 462, 27 P. 945, 946, 14 L.R.A. 120, the statutory period for
filing the initial pleading of an election contest had fully elapsed. The court in holding that
the time would not be extended merely on the ground that the last day fell on Sunday there
said: It has been held that where a rule to plead expires on Sunday the party has the next day
in which to plead; but this rule has generally been limited in its application to causes over
which the court has already acquired jurisdiction.
____________________
the designated period of time begins to run is not to be included. The last day of the period so computed is to be
included, unless it is a Sunday or other non-judicial day, in which event the period runs until the end of the next
day which is neither a Sunday nor a non-judicial day. When the period of time prescribed or allowed is less than
7 days, intermediate Sundays and other non-judicial days shall be excluded in the computation.
plead; but this rule has generally been limited in its application to causes over which the court
has already acquired jurisdiction. * * * The statute gives the contestor ten days after the day
when the votes are canvassed' to file his statement. After much consideration we are satisfied,
both upon principle and authority, that when the statutory period for filing the statement of an
election contest for county officers under the act of 1885 has fully elapsed, excluding the day
when the votes are canvassed, the time cannot be extended merely on the ground that the last
day happens to fall on Sunday. This is the reasonable, as well as the natural and literal,
interpretation of the statute. Any other construction of such an act would be unwarranted.
Whenever recourse to the courts becomes necessary to determine the result of an election,
public and individual interests alike require that the proceeding should be commenced and
prosecuted promptly. * * * The statement of contest not having been filed within the time
required by the statute, the court below erred in entertaining jurisdiction of the case. The
judgment is accordingly reversed, and the cause remanded, with directions to the county court
to dismiss the proceeding. Accord, Crownover v. Millar, 45 Nev. 81, 197 P. 817; State ex
rel. Thatcher v. Brodigan, 37 Nev. 458, 142 P. 520.
We are not unmindful of the holdings in the cases of Landrum v. Cockrell, 230 Ky. 599,
20 S.W.2d 464, and Damron v. Johnson, 192 Ky. 350, 233 S.W. 745. These cases do not
persuade us to a conclusion which we believe would be contrary to the existing law in this
state.
Affirmed.
____________
76 Nev. 446, 446 (1960) Carson v. Lowe
In the Matter of the Parental Rights of
CHANNING CARSON, a Minor.
ALEXANDER F. CARSON, Father of the Minor Child, CHANNING CARSON, Appellant,
v. CAROL CHANNING CARSON LOWE, Mother of Said Minor Child, Respondent.
No. 4296
December 9, 1960 357 P.2d 591
Department No. 1.
Proceeding by child's mother, who had divorced father and who had remarried, to
terminate the father's parental rights on theory of abandonment. The lower court entered
decree terminating father's parental rights, and father appealed. The Supreme Court, Badt, J.,
held that findings that the conduct of the father evidenced a settled purpose on his part to
forego all parental custody and relinquish all claims to the child, and that the father had left
the child in the care and custody of another without provision for his support and without
communication for a period of one year, were supported by the record.
Affirmed.
Jones, Wiener & Jones, of Las Vegas, and William B. Murrish, of Hollywood, for
Appellant.
Goldwater & Singleton and McNamee & McNamee, of Las Vegas, for Respondent.
1. Parent and Child.
The question whether a parent has abandoned his child within statute providing for termination of
parental rights is a question of fact, and not a question of law. NRS 128.010 et seq., 128.010, subd. 2,
128.090.
In proceeding by child's mother, who had divorced father and who had remarried, to terminate the father's
parental rights on theory of abandonment, findings that the conduct of the father evidenced a settled
purpose on his part to forego all parental custody and relinquish all claims to the child, and
that the father had left the child in the care and custody of another without provision
for his support and without communication for a period of one year, were supported
by the record. NRS 12S.010 et seq., 12S.010, subd.
76 Nev. 446, 447 (1960) Carson v. Lowe
parental custody and relinquish all claims to the child, and that the father had left the child in the care and
custody of another without provision for his support and without communication for a period of one year,
were supported by the record. NRS 128.010 et seq., 128.010, subd. 2, 128.090.
Termination of divorced father's parental rights under child abandonment statute was not in violation of
due process clauses of state and federal constitutions. NRS 128.010 et seq.
The remedy of a decree terminating parental rights should be applied with caution. NRS 128.010 et
seq., 128.010, subd. 2, 128.090.
OPINION
On this appeal we affirm the judgment of the district court terminating the parental rights
of Alexander F. Carson as to Channing Carson, a minor, including any right of custody,
partially or wholly, of said child.
The minor, Channing Carson, was the issue of the marriage of Alexander F. Carson,
appellant, and Carol Channing Carson Lowe, respondent. The father and mother separated in
March 1956 and were divorced in September 1956. The decree granted the mother the care,
custody, and control of the minor child, then three years old, but without provision for the
child's support by the father. Immediately following the entry of the divorce decree in
September 1956 the mother married Charles Lowe, and the minor has been continuously in
the custody of Mr. and Mrs. Lowe from September 1956 to July 1959 when the petition in
this proceeding was filed and to the present time. The child is now six or seven years old.
The court made formal findings, finding to be true the allegations of the petition that since
1956 appellant had failed and refused to support the minor child though able to do so; that the
mother, since the birth of said child, and with Charles Lowe, her present husband, had since
September 5, 1956 supported the said child entirely; that the child had been abandoned by its
father; and that the defendant's denials were untrue.
76 Nev. 446, 448 (1960) Carson v. Lowe
The proceedings culminating in the judgment terminating parental rights were had under
the provisions of Chapter 128 NRS. Subdivision 2 of NRS 128.010 contains the following
definitions:
2. Abandonment of child' imports any conduct of one or both parents of a child which
evinces a settled purpose on the part of one or both parents to forego all parental custody and
relinquish all claims to the child, and a parent or parents of a child who shall leave the child
in the care and custody of another without provision for his support and without
communication for a period of 1 year shall be presumed to have intended to abandon the
child.
[Headnote 1]
Appellant's opening brief specified as assignments of error (1) the finding that the
conduct of the appellant evidenced a settled purpose on his part to forego all parental custody
and relinquish all claims to the child; and (2) the finding that appellant had left the child in
the care and custody of another without provision for his support and without communication
for a period of one year. There are two additional assignments of error which will be treated
later, but the two assignments quoted are the ones with which we are primarily concerned.
The opening brief discusses at length the evidence to support appellant's contention that such
evidence does not support the findings. However, in reply to the respondent's answering brief
which in turn discusses at length the evidence under respondent's contention that such
evidence amply supported the findings, appellant insists that respondent misses the issue on
appeal, as there is no fact question involved but a question of law, namely, that of the
construction of the statute. We refrain from discussing appellant's change in the point of his
attack on the judgment. We reject, however, appellant's contention that the question involved
is one of law. It is true that in one case cited by appellant, Glendinning v. McComas, 188 Ga.
345, 3 S.E.2d 562, 563, the court reversed a judgment overruling a petition to the demurrer
under the theory that the statute must be construed strictly, and that under such strict
construction the complaint had failed to show the child's need.
76 Nev. 446, 449 (1960) Carson v. Lowe
strict construction the complaint had failed to show the child's need. It appears however, that
the courts are in virtually unanimous agreement to the effect that the question is one of fact as
to whether the evidence establishes abandonment under the statute. Jones v. Thompson, 151
Me. 462, 121 A.2d 366; In Re Potter, 85 Wash. 617, 149 P. 23; Winans v. Luppie, 47 N.J.Eq.
302, 20 A. 969; In Re Bistany, 204 N.Y.S. 599, 600, 209 App.Div. 286.
[Headnote 2]
A review of the evidence shows that for the period of three or four years, from 1956 to
1959, any communication or attempts at communication on the part of appellant were most
meager. The trial court apparently rejected, as any showing constituting a real attempt to get
in touch, a single letter and a single telephone call in January of 1957, as well as a trip in June
1957 which appellant made to California from his residence in Florida. From then until June
of 1959 nothing substantial is presented in the way of any attempt to communicate or to get in
touch with his child. The court apparently likewise rejected his contention of his contribution
to the child's support by way of his interest in an asserted fund of $150,000 which he claimed
to be community property, in which he had a one-half interest, and which fund existed at the
time of the separation. The evidence was conflicting as to the existence of any such fund, it
being asserted by respondent that at the time of the divorce she was virtually insolvent. Even
during the marriage any earnings contributed to the community property by the husband were
nominal. Although appellant's earnings in 1957 amounted to $6,000 and in 1958 to $5,000
and in 1959 to $3,500 to the date of the trial, he contributed nothing to the child's support and
his gifts to the child were limited to those made on the child's birthday and on Christmas. He
made no real attempt to insist upon or to enforce his rights of visitation under the divorce
decree. It is true that he sought to prove that his attempts to communicate with his infant son
were frustrated by respondent and by her attorney and by her accountant, and we are urged to
accept this proof.
76 Nev. 446, 450 (1960) Carson v. Lowe
This, of course, we cannot do in view of the court's findings. More light on such findings
appears from the court's written opinion and decision in the case. The learned trial judge said:
* * * [T]he father here left the child with the mother for a long period of time without
making any real effort to get a share of custody of the child or even a determination of
definite periods of visitation. It would certainly seem that if a father were as concerned and
filled with love for his child as the father here professed to be, the space of distance would
certainly not prove to be a substantial obstacle, particularly since he was unhampered with a
subsequent marriage or any other responsibilities. * * * [T]he father was well aware that a
divorce and custody decree existed in the State of Nevada. He consulted an attorney, or
attorneys, on the other matters. He certainly could have learned that a resort to the Nevada
court on a motion to modify or construe the custody provisions of the Nevada decree would
have brought the petitioner and her husband * * * before this court much sooner than the
particular action now pending. The father at no time initiated an effort to determine custody
and support. * * * As to the father's claim that he had provided some support for the child
through a tax condition, this most certainly does not ring with sincerity. Demands were made
by the mother's representatives for contribution to the support of the child, and the tax
situation was his only response. In considering the best interests of the child the trial judge
said: The differences in environment and miles would result in a gross injustice in itself to
the child, who at this very tender stage does not even know what his real father looks like. He
probably doesn't even realize that the present husband of Mrs. Channing is not his father. This
could only cause consternation and general disruptment in the mind of a boy of these years. It
would just naturally follow that the boy would have to be pulled out of one environment, in
which he was reared, and suddenly, at least once during each year, placed in another
environment with different associations at great distances away from his mother, which
would add to the confusion being multiplied in the child's mind."
76 Nev. 446, 451 (1960) Carson v. Lowe
mother, which would add to the confusion being multiplied in the child's mind.
In this the court apparently had in mind the provisions of NRS 128.090, which required
that the court shall give full and careful consideration of all of the evidence presented, with
due regard to the rights and claims of the parent or parents of such person and to any and all
ties of blood or affection, but with a dominant purpose of serving the best interests of such
minor person.
In finding that the evidence supported the statutory requirements for abandonment, the
court found such abandonment both under the conduct of the father evincing a settled purpose
on his part to forego all parental custody and relinquish all claims to the child and, secondly,
under the statutory presumption of abandonment on the part of a parent who leaves the child
in the care and custody of another without provision for his support and without
communication for a period of one year. It is our holding that there is ample support in the
record for the finding of abandonment under both of these provisions.
A third assignment of error is the court's finding that appellant was an unfit person. We
need not be concerned with this assignment of error, as, regardless of his fitness or unfitness
in other respects, the judgment terminating his parental rights must be affirmed by reason of
the finding of abandonment.
[Headnote 3]
Finally, appellant asserts that the court's construction of the statute is in violation of the
due process clauses of the state and federal constitutions. We find no merit in this
assignment.
[Headnote 4]
The court is aware of the seriousness and of the terrible finality of a decree terminating
parental rights. Undoubtedly such remedy should be applied with caution. But that this court
should, from the cold record, attempt to substitute its judgment for that of the trial court
which had all parties before it, observed their demeanor and weighed their credibility,
especially in an area of such sensitivity, will not be attempted.
76 Nev. 446, 452 (1960) Carson v. Lowe
and weighed their credibility, especially in an area of such sensitivity, will not be attempted.
Affirmed.
Pike, J., and Hanna, District Judge, concur.
McNamee, C. J., being disqualified, the Governor assigned Honorable Richard R. Hanna,
District Judge of the First Judicial District, to sit in his place.
____________
76 Nev. 452, 452 (1960) McKernon v. City of Reno
GEORGE E. McKERNON and JOSEPH CASAZZA, Appellants, v. CITY OF RENO; JOHN
MARSHALL, DICK DIMOND, JOE MASTROIANNI, CHARLES COWAN and GEORGE
CARR As City Council of the City of Reno; RENO CHAMBER OF COMMERCE, INC.,
and HARDESTY & SON, INC., Respondents.
No. 4299
December 9, 1960 357 P.2d 597
Appeal from judgment of Second Judicial District Court, Washoe County; Peter Breen,
Suit for injunction against construction of tourist information or hospitality center on a
dedicated plaza. The trial court entered judgment denying relief, and the plaintiffs appealed.
The Supreme Court, Badt, J., held that the construction of such a center on the plaza would
not violate the dedication of the plaza.
Affirmed.
Ernest S. Brown, Jack I. McAuliffe and George E. McKernon, all of Reno, for Appellants.
Roy Lee Torvinen and Richard Breitwieser, of Reno, for Respondent City of Reno.
Springer, McKissick & Hug, of Reno, for Respondent Reno Chamber of Commerce, Inc.
Vargas, Dillon & Bartlett, of Reno, for Respondent Hardesty & Son, Inc.
1. Dedication.
Generally, an acceptance in some form is essential for a valid and complete dedication; in the absence of
an acceptance, a dedication is in law merely an offer to dedicate; a mere offer to dedicate does not
become binding until such offer is accepted.
2. Dedication.
Where formal dedication is made by state or municipality, or dedication is made in compliance with
statutes relating thereto or dedication is by sale of lots with reference to a plat showing dedications, no
acceptance is necessary.
3. Dedication.
Where a dedication is beneficial to a donee without imposing any burden, acceptance will be presumed as
of the date of the dedication.
4. Dedication.
Under rule that where a dedication is beneficial to a donee without imposing any burden, acceptance will
be presumed as of the date of the dedication, dedication of plaza became complete when the dedicator filed
a plat representing the dedication of the plaza, and the dedicator was without authority to resume control or
to limit or curtail the rights of the public to any greater extent than provided in the terms of the original
dedication, and attempted limitation contained in covenant in dedicator's subsequent deeds was without
avail.
5. Dedication.
A dedication of a plaza was not ineffective merely because the city was not incorporated until later date,
inasmuch as the dedication was to the public, which was an ever-existing grantee, capable of taking a
dedication for public use.
6. Dedication.
In determining whether certain structures and improvements are consistent with the dedication of lands
within a city as public squares, parks, and plazas, each case must turn upon its own particular facts.
7. Dedication.
Dedication of land as a plaza was not violated by construction of a tourist information or hospitality
center on a part thereof.
Tourist information or hospitality center, even though built in public plaza by chamber of commerce as
lessee of city, served a public benefit; the center did not constitute such a devotion of public property for
private use as would be enjoined.
OPINION
This appeal requires the determination of the proper use that may be made of land
dedicated as a plaza; and the disposition of question prior to such determination with
reference to the precise nature of the dedication, the necessity for its acceptance, and the
effectiveness of the covenants of certain deeds (of lots in the same subdivision as the
dedicated plaza, and owned by the dedicator) executed, respectively, four and six years after
the dedication. Appellants, as the successors in interest of the grantee in such later deeds,
sued for an injunction against the construction of a certain Hospitality Center on the
dedicated plaza, and have appealed from a judgment denying such relief.
We start with appellants' assertion: The area in issue was given to the City of Reno by
Myron C. Lake in the year 1870 by a dedication which appears on appellants' Exhibit A.
Such exhibit consisted of a plat filed by Lake in which he had laid out sundry streets and also
an area entitled Plaza. No question is raised as to the proper filing or recordation of this
plat. Indeed, it was stipulated in open court by counsel (counsel for appellants dictating the
stipulation into the record and counsel for the respondents concurring): The stipulation is
that the plaza set forth on plaintiffs' Exhibit A and the whole thereof and the blocks as
indicated on the [plat] and lots constitute the dedication of Myron C. Lake initially
concerning the matter which is before your Honor. Counsel for respondents clinch the matter
further: Mr. McKissick: As I understand the stipulation, that map represents the dedication
of the plaza and the whole thereof as shown thereon. Mr. Brown: That is correct, your
Honor.
That is correct, your Honor. The court: Very well, the record will so show.
The record then becomes silent as to what occurred between such dedication in 1870 up to
the year 1874. However, both parties have relied upon and have quoted in considerable length
in their briefs the language used by Norcross, J., in the District Court of the United States for
the District of Nevada in Myron C. Lake v. Washoe County, The City of Reno, et al.
(decision unreported, filed in said court November 1, 1944). The Myron C. Lake, plaintiff in
that case, was the son of the Myron C. Lake who made the 1870 dedication. The former
sought a decree revesting in him the title to a piece of land that had been included in the
dedication by his father of a certain square or plaza, by reason of its abandonment by the city.
The federal district court granted a motion to dismiss. In its opinion the court said: It is a
part of the history of the state that the Central Pacific Railroad was completed to a point
within what is now the City of Reno in May, 1868, at which time the town of Reno was
established as the station most convenient for handling freight and passengers to and from
Virginia City; that the transcontinental railroad system, of which the Central Pacific was a
part, was completed a year later, May 10, 1869; that the State Legislature of 1871 passed an
act changing the county seat of Washoe County from Washoe City to the town of Reno.
(Stats. Nev. 1871, p. 59) Hess v. Pegg, 7 Nev. 23. In order to induce the county
commissioners to locate the courthouse at the new county seat of Reno, where it is now and
has been located since about the year 1871, the said Myron C. Lake granted to the County of
Washoe the site for the new county building and courthouse and across Virginia street and
immediately in front thereof, set apart an open square, and to the north and south thereof two
other tracts of land separated therefrom by streets connecting with said Virginia street. It is
also a matter of common knowledge that the said Myron C. Lake as owner of the land
adjoining these several tracts so set apart for public use as open squares or plazas, sold all of
the remaining portion of his land holdings to purchasers who purchased the same in
respect to such open squares or plazas."
or plazas, sold all of the remaining portion of his land holdings to purchasers who purchased
the same in respect to such open squares or plazas. (The federal court then referred to
legislative proceedings whereunder part of the public plaza dedicated by Lake was used as
a site for a Carnegie library and to the subsequent construction of a federal building upon a
portion of said plaza.) The references to the fact that Lake, after his dedication, sold all of
the remaining portion of his land holdings to purchasers who purchased the same in respect to
such open squares or plazas did not place the dates of such private sales. The court below
stated in its written opinion: With reference to the position that Myron C. Lake dedicated the
plaza to enhance the value of said lots 1, 2, and 3. Such acts are activities in the growth of
history, is a part of the history of Nevada of which the court takes judicial notice. The court
did not, possibly could not, take judicial notice of the feverish activity and growth of and
within the City of Reno in the period following the establishment of the county seat of
Washoe County at Reno in 1871, including the building of many residences in Lake's south
addition as reported in the current press of that year. We make no point of this. It was
apparently beyond the ingenuity of counsel to present competent proofs of these matters.
Appellants say that the burden was on respondents to prove sales of lots by Lake between
1870 and 1874 as proof of acceptance of Lake's dedication of the plaza or as proof of an
estoppel against an attempt by Lake to recall his dedication. Respondents insist that the
burden was on appellants to show that there were no sales during this period as part of their
proof that they were entitled to the injunctive relief sought. Again we make no point of this,
and mention it only to complete the historical picture. The conclusions we have reached are
based on principles of law independent of those arising from the sale of lots by the dedicator
of streets or public places.
On March 19, 1874 Myron C. Lake sold to the predecessor in interest of appellants lots 1
and 2, and on June 1, 1876 sold to such predecessor lot 3 in block 2 which fronted on the
dedicated plaza.
fronted on the dedicated plaza. Each of these conveyances contains the following covenant:
And the said party of the first part hereby agrees that he will not sell or lease or otherwise
dispose of the land in front of said lot[s] above described, nor build on same or allow any
other person or persons to do so, but keep the same open and public as a public plaza.'
(1) Appellants contend that under the holding of this court in Shearer v. City of Reno,36
Nev. 443, 136 P. 705, 707, there being no evidence in the record to show that the city
accepted the dedication, or that Lake had sold lots with reference thereto, before he sold to
Jones, the predecessor of the appellants, Lake had the full power, right, and authority to recall
at his pleasure the dedication to the city, including his right to put further restrictions on such
dedication, such as the condition that he would not build on [the land dedicated as a plaza]
or allow any other person or persons to do so, but keep the same open and public as a public
plaza.' The language used in the Shearer case does indeed set forth such proposition of law
in the following language: A dedication of land for public purposes is simply a devotion of
it, or of an easement in it, to such purposes by the owner, manifested by some clear
declaration of the fact. If nothing beyond the declaration be doneif there be no acceptance
by the public of the dedication, and no interest in the property be acquired by third
partiesthe dedication may be recalled at the pleasure of the owner. The learned trial judge
rejected this authority as being not in point. In this he was correct, because that case dealt
entirely with the question of dedication of a street, namely, Riverside Avenue, whereas the
present case deals with the dedication of a plaza. The application of the law to these two
differing situations is in turn entirely different.
In the dedication of a street a burden is placed upon the city. The improvements upon a
dedicated park are left to be made by those who are interested. The city may take it up, or it
may be left to individuals. The resulting public benefit may result simply from leaving a
space for air or unobstructed view. Attorney General v. Abbott, 154 Mass.
v. Abbott, 154 Mass. 323, 28 N.E. 346, 13 L.R.A. 251. It is such theory that developed into
the rule enunciated in Smith v. State, 217 Ind. 643, 29 N.E.2d 786, 791, where the court said:
The authorities are abundant which hold that where the dedication is beneficial to the donee
without imposing any burdens, acceptance will be presumed as of the date of the dedication.
McQuillin Municipal Corporations, 2d Ed., Vol. 4, p. [771] 554, sec. 1703; Ramstad v. Carr
[1915, 31 N.D. 504, 154 N.W. 195, L.R.A. 1916B 1160].
In the last-named case the court, after noting the general propositions that a dedication is
in the nature of a grant, that a grant does not become effective until accepted by the grantee,
that such acceptance need not be by formal or express words but may be by acts or conduct,
says: It is also true, as a general rule, that delivery of a grant implies its acceptance by the
grantee, * * * and acceptance of a grant beneficial to the grantee may be presumed. This is
especially true where it conveys valuable property and creates no obligation or burden to be
assumed by the grantee. [31 N.D. 504, 154 N.W. 202] The court then notes the great conflict
in the authorities upon the question of whether an acceptance is necessary in the case of a
statutory dedication, and concludes that the more prevalent rule is that an acceptance is
necessary, quoting McQuillin Municipal Corporations, secs. 1576-1578. The discussion,
however, centers about the iniquities that would follow if an owner of property could thrust
upon a city, without its consent or acceptance, the dedication of many streets and alleys with
the consequent burden of their improvement and maintenance. It would seem, however, that
the reason for such prevalent view fails where the dedication confers a benefit on the public
without imposing any burden. In this respect the opinion further quotes McQuillin, sec. 1578,
as follows: A further exception is apparently declared by some authorities by holding that
where the dedication confers a benefit on the public without imposing any burden, as when
land is donated for a public park or square or school site, an acceptance will be presumed,
and the dedication becomes complete as soon as the owner has manifested his intent by
appropriate acts or declarations."
school site, an acceptance will be presumed, and the dedication becomes complete as soon as
the owner has manifested his intent by appropriate acts or declarations. It was further noted
in the opinion that it was a number of years before improvements were made, that such
situation is usually the case, and that the donor will be presumed by law to have contemplated
such state of things and to have imposed no condition upon the public to use the property
dedicated until the public wants required its improvement and use for the purpose indicated.
Nor is there anything in the record of this case to show that Lake, when making the
dedication, contemplated a public use of the dedicated plaza till such time as the growth and
expansion of the municipality made it desirable for public convenience that it be so used.
[Headnote 1]
So we may accept the assertion of appellants that the general rule is well settled that for a
valid and complete dedication an acceptance in some form is essential. City of Santa Clara v.
Ivancovich, 47 Cal.App.2d 502, 118 P.2d 303; Union Transportation Company v. Sacramento
County, 42 Cal.2d 235, 267 P.2d 10; 26 C.J.S. Dedication, sec. 34, pp. 459 to 463; that in the
absence of an acceptance, a dedication is in law merely an offer to dedicate, Union
Transportation Company v. Sacramento County, supra, and that a mere offer to dedicate does
not become binding until such offer is accepted, Sacramento County v. Lauszus, 70
Cal.App.2d 639, 161 P.2d 460.
[Headnote 2]
There are, however, several exceptions to this rule, as (1) where a formal dedication is
made by a state or municipality, State of California v. United States, 9 Cir., 169 F.2d 914; (2)
where a dedication is made in compliance with statutes relating thereto, Police Jury, Jefferson
Parish v. Noble Drilling Corporation, 232 La. 981, 95 So.2d 627 (though there are decisions
contra which hold that an acceptance is required both in statutory and common-law
dedications, City of Carlsbad v. Neal, 56 N.M. 465, 245 P.2d 3S4); and {3) where a
dedication is by sale of lots with reference to a plat showing dedications, in which case
the weight of authority holds that no acceptance is necessary, The City of Santa Clara v.
Ivancovich, 47 Cal.App.2d 502, 11S P.2d 303. But see Walton v. City of Clermont,
Fla.App.,
56 N.M. 465, 245 P.2d 384); and (3) where a dedication is by sale of lots with reference to a
plat showing dedications, in which case the weight of authority holds that no acceptance is
necessary, The City of Santa Clara v. Ivancovich, 47 Cal.App.2d 502, 118 P.2d 303. But see
Walton v. City of Clermont, Fla.App., 109 So.2d 403.
[Headnote 3]
The fourth exception is the one we have first noted, that where a dedication is beneficial to
a donee without imposing any burden, acceptance will be presumed as of the date of the
dedication. Smith v. State, supra; Attorney General v. Abbott, supra; Ramstad v. Carr, supra.
See also City of Russell v. Russell County Building and Loan Association, 154 Kan. 154, 118
P.2d 121, and Rice v. Clare County Road Commission, 346 Mich. 658, 78 N.W.2d 651.
[Headnote 4]
The dedication having become complete in 1870, Lake was without authority to resume
control or to limit or curtail the rights of the public to any greater extent than provided in the
terms of the original dedication. Accordingly, the attempted limitation contained in the
covenant in Lake's deeds of 1874 and 1876 were without avail. Attorney General v. Abbott,
supra; Archer v. Salinas City, 93 Cal. 43, 28 P. 839, 16 L.R.A. 145; Shearer v. City of Reno,
36 Nev. 443, 136 P. 705.
[Headnote 5]
Appellants contend that the 1870 dedication was ineffective because the City of Reno was
not incorporated till 1903. This contention overlooks the essential fact that the dedication is
to the public and that the public is an ever-existing grantee, capable of taking a dedication for
public use. Trustees of M. E. Church, Hoboken v. Council of Hoboken, 33 N.J.L. 13. Hence
the existence of a corporation in which to vest the title is not essential. Rutherford v. Taylor,
38 Mo. 315; Cincinnati v. White, 6 Pet. 431, 31 U.S. 431, 8 L.Ed. 452.
(2) Appellants next contend that even if they are bound by the terms of the original
dedication, unaltered by Lake's subsequent deeds, such original dedication as a plaza was
violated by the construction upon the dedicated property of the "Hospitality Center."
by Lake's subsequent deeds, such original dedication as a plaza was violated by the
construction upon the dedicated property of the Hospitality Center.
[Headnotes 6, 7]
It may first be noted that the city council has the power to determine and declare what are
public uses for the purposes of the city and to provide for the construction, improvement, and
maintenance of city parks and all public places and to make any other public improvements of
any nature. Stats. Nev. 1905, 100; Stats. Nev. 1945, 408, 428; Reno Charter, Art. I, sec. 3,
Art. XII, secs. 10.15, 10.480. The cases are legion in which the courts have been called upon
to determine whether certain structures and improvements have been inconsistent with the
dedication of lands within a city as public squares, parks, and plazas. To discuss them all and
to reconcile with each other many that appear conflicting would not be helpful. Each case
must turn upon its own particular facts. The parcel here dedicated as a plaza comprises some
15,000 square feet in the heart of the City of Reno. The Hospitality Center constructed
thereon occupied approximately 1,500 square feetsome one-tenth of the areain one
corner of the property. It was constructed at the time of the Winter Olympics at Squaw
Valley, to which Reno was the gateway, and its architectural form corresponded to that of the
Nevada Building at Squaw Valley. Its architectural beauty may well have been a matter of
contention. The architect's plans and his sketch of the completed structure were in evidence.
The trial court found that the construction of the building will not interfere with the
plaintiffs' easement of light, air, and view, if they have such * * * that the construction and
use of such building is a proper and legal use of said public plaza * * * that there is a need for
an Information Center in the City of Reno * * * that said building will be ornamental and will
add to the public use and enjoyment of said plaza. It does not appear from the evidence that
the construction of said Hospitality Center will impair the value of plaintiffs' property. In fact,
it appears quite probable that the value of all property in question will be enhanced."
probable that the value of all property in question will be enhanced. These, for the most part,
are factual determinations for which there is substantial support in the record, and with which
we shall not interfere.
As examples of the many cases which have approved the building of various structures
upon lands dedicated to the use of the public for parks, squares, and plazas, see Spires v. City
of Los Angeles, 150 Cal. 64, 87 P. 1026; Mahon v. Luzerne County, 197 Pa. 1, 46 A. 894;
Williams v. Gallatin, 229 N.Y. 248, 128 N.E. 121, 18 A.L.R. 1238; City of Wichita v. Clapp,
125 Kan. 100, 263 P. 12, 63 A.L.R. 478; Dodge v. North End Improvement Ass'n., 189 Mich.
16, 155 N.W. 438; McLauthlin v. The City and County of Denver, 131 Colo. 222, 280 P.2d
1103. We are compelled to reject the appellants' contention that the Hospitality Center was
a structure that violated the dedication to public use as a plaza.
[Headnote 8]
It is next contended that as the Hospitality Center was built by the Reno Chamber of
Commerce as lessee of the City of Reno and as its main purpose was to attract tourists to the
city as an economic benefit to the city and to sundry businesses and occupations maintained
in the city, its purpose was not the enhancement of the enjoyment of the inhabitants of the
city as a whole and was, therefore, not a public benefit. We gather that appellants feel that
while accumulations of tourists may benefit sundry hotels, motels, restaurants, bars, gambling
casinos, and commercial businesses of various kinds, they add nothing to the public
enjoyment. The argument is without conviction. Encouragement of and offers of hospitality
to tourists are now promoted, as public benefits, in all countries of the worldat least in
those countries where visitors are welcome; and such hospitality may be extended, as here,
through the chamber of commerce. Appellants then rely upon Teacher Building Co. v. City of
Las Vegas, 68 Nev. 307, 232 P.2d 119, as authority for the contention that such attempted
devotion of public property for private use may be enjoined. We have seen that in the instant
case the "Hospitality Center" served a public benefit.
Hospitality Center served a public benefit. In Teacher Building Co. the city had
attempted to vacate 30 feet of an 80-foot street to permit the vacated portion to vest in the
abutting owners and restricting the plaintiff's 80-foot street approach on which they in turn
abutted to a 50-foot street approach. We think the case is clearly distinguishable.
Appellants further contend that because the terms of the public dedication were violated,
there was a reverter to the abutting owners and their successors. We do not reach this point in
view of our holding that the use of the dedicated ground was not a violation of the terms of
the dedication.
We find no error in the court's denial of plaintiffs' complaint for an injunction restraining
the building of what was then the proposed structure.
Affirmed.
____________
76 Nev. 463, 463 (1960) Miller v. State
ROOSEVELT MILLER, Appellant, v.
No. 4293
December 9, 1960 357 P.2d 122
Department No. 1.
Prosecution for burglary in the first degree allegedly committed by defendant in taking
goods from a furniture store. From a judgment of the trial court defendant appealed. The
Supreme Court, McNamee, C. J., held that where, during cross-examination of a witness as to
whether he knew the names of the defendant and the two other men with whom the defendant
had allegedly committed the crime, deputy district attorney stated that one of the other
suspects had entered a plea of guilty, such conduct was not prejudicial to defendant where
court sustained defendant's objection and ordered the remark stricken from the record
and where jury had been later admonished to disregard the same.
guilty, such conduct was not prejudicial to defendant where court sustained defendant's
objection and ordered the remark stricken from the record and where jury had been later
admonished to disregard the same.
Affirmed.
Roger D. Foley, Attorney General, Jack C. Cherry, District Attorney, Clark County, and
Charles L. Garner, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Where record in prosecution for burglary indicated that trial judge was aware of his legal discretion with
regard to defendant's motion for the exclusion of witnesses, and where record failed to disclose that
defendant was in any manner prejudiced by the ruling, denial of defendant's motion for the exclusion of
witnesses did not constitute error. NRS 48.250, 178.225.
2. Criminal Law.
Where, in prosecution for burglary, during cross-examination of a witness as to whether he knew the
names of the defendant and the two other men with whom defendant had allegedly committed the crime,
deputy district attorney stated that one of the other suspects had entered a plea of guilty, but where,
following objection to this remark, court ordered the remark stricken from record and admonished jury to
disregard it, and where jury was later instructed not to consider any offer of evidence rejected by the court
and where court did everything defendant requested in order to cure any error resulting from remark of
counsel, the conduct was not prejudicial.
3. Burglary.
Where, in prosecution for burglary, record disclosed that furniture store had been burglarized within an
hour and a half preceding defendant's apprehension, and that some of the articles found in defendant's
possession bore tags of store and similar articles were missing from store, and where assistant manager of
store was able to identify some of articles in evidence as being some of the missing articles, articles
allegedly stolen had been sufficiently identified.
4. Criminal Law.
Where, following apprehension of defendant with goods which had allegedly been taken by defendant
and two others from a store, in order to locate a party suspected of receiving stolen goods, defendant was
allowed by police to take the goods to an address, and where, at such address a picture of the goods was
taken, introduction of picture into evidence did not constitute prejudicial error in connecting defendant with
the arrest of the receiver of stolen goods where picture had been offered to establish
custody of the goods between arrest and the time of trial, and where, in any case, the
existence of the arrest of the party for receiving stolen goods was first shown by
defendant's own counsel during cross-examination.
arrest of the receiver of stolen goods where picture had been offered to establish custody of the goods
between arrest and the time of trial, and where, in any case, the existence of the arrest of the party for
receiving stolen goods was first shown by defendant's own counsel during cross-examination.
5. Criminal Law.
Refusal of trial court to give a requested instruction pertaining to reasonable doubt was not error where
subject matter of such proffered instruction had been given in other instructions. NRS 175.195.
6. Burglary.
Evidence was sufficient to sustain conviction for first-degree burglary.
OPINION
Appellant was convicted of burglary in the first degree by jury verdict and under the
judgment of the court was sentenced to a term in the state prison of not less than one nor
more than three years. Appeal is from such judgment and from the order denying his motion
for a new trial.
On March 27, 1959 at 11:00 p. m., Sgt. Goerke of the Nevada State Patrol noticed a
Cadillac automobile parked near the corner of Mesquite and 23rd Streets in Las Vegas,
Nevada. A television set was on the ground nearby and a man was bending over the front of
the car. Goerke drove around the block, summoned the police, and on returning to the scene
he noticed the Cadillac was traveling about a block away without lights. He overtook the car,
had the three occupants who were identified as appellant Miller, Albert Henderson, and
William McDonald get out, and he then awaited the police. Upon the arrival of the police, the
said three occupants were arrested. In the automobile an adding machine, a typewriter, two or
three television sets, and a new camera were found. The tags on some of these articles
indicated that the merchandise was from McMahan's Furniture Store, Las Vegas, Nevada. At
11:30 p. m. of the same evening, the police went to said furniture store and ascertained that
the glass part of the rear door had been broken, making easy access into the store possible.
the store possible. An hour and a half earlier, the door had been intact. Appellant admitted
that he and McDonald, in company with Henderson, had picked up a television set from the
back of a building about a block from the 100 block of North Ninth Street (the back of
McMahan's Furniture Store was located in the 100 block of North Eighth Street), and had
loaded it and other items into the Cadillac and then the car was driven to 23rd Street. An
investigation by the assistant manager of the furniture store disclosed that three television
sets, two typewriters, and several pieces of camera equipment were missing. Some of the
articles found in the Cadillac were identified as some of the articles missing from the store.
The specifications of error are considered separately.
[Headnote 1]
1. Upon completion of the selection of the jury and before the introduction of any
evidence, appellant's counsel made a motion for the exclusion of witnesses. Error is claimed
in the denial of said motion. As pointed out in Rainsberger v. State, 76 Nev. 158, 350 P.2d
995, this state has no statutory requirement for the exclusion of witnesses in criminal actions.
Appellant contends however that NRS 178.225
1
makes applicable to criminal actions NRS
48.250 which provides for the exclusion of witnesses during civil trials. NRS 178.225 refers
to evidence in civil actions and not to procedure; consequently it has no application to NRS
48.250, a procedural statute.
Even if there is no statute requiring exclusion of witnesses upon motion in criminal cases,
appellant states that the trial judge had discretion in the matter, and when he denied the
motion without giving any reason for his ruling, he failed to exercise his discretion. We are
not convinced by this argument. It appears from the record that the trial judge in denying the
motion was aware of his legal discretion in the matter but found no sufficient reason for
invoking the rule of exclusion.
____________________

1
NRS 178.225: The rules of evidence in civil actions shall be applicable also to criminal actions, except as
otherwise provided in this Title.
found no sufficient reason for invoking the rule of exclusion. Appellant fails to point out, and
indeed an examination of the record fails to disclose, that appellant was in any manner
prejudiced by said ruling.
[Headnote 2]
2. Misconduct of Deputy District Attorney Garner prejudicial to the substantial rights of
appellant is asserted.
During the cross-examination of one of the state's witnesses, appellant's counsel asked the
witness whether he knew the names of the three suspects.
A. I read the names on a report.
Q. McDonald was arrested along with the defendant, Roosevelt Miller, was he not? A.
That is what I read in the report, sir.
By Mr. Garner: Your honor, I think the record will speak for itself. William Clifford
McDonald has entered a plea of guilty.
Appellant's counsel immediately objected to this remark of Mr. Garner. The court
sustained the objection and ordered the remark stricken from the record. Upon appellant's
request the court admonished the jury to disregard the same.
It is to be noted that appellant did not ask for a mistrial, and that the court did everything
appellant requested in order to cure any error resulting from the remark of counsel.
Furthermore, in the final written instructions, the jury was instructed not to consider any offer
of evidence rejected by the court and to base its finding and decision only upon the evidence
admitted at the trial. Under these circumstances the asserted misconduct was not prejudicial.
In fact it might be argued that such a remark would be beneficial to the appellant as indicating
that McDonald alone had committed the burglary.
[Headnote 3]
3. Error is claimed in the admission in evidence of the articles assertedly stolen, upon the
ground that they were not sufficiently identified. The record discloses that McMahan's
Furniture Store had been burglarized within the hour and a half preceding the appellant's
apprehension; that some of the articles found in his possession, i.e., in the joint
possession of all three suspects, bore McMahan's tags; and that similar articles were
missing from McMahan's store.
the hour and a half preceding the appellant's apprehension; that some of the articles found in
his possession, i.e., in the joint possession of all three suspects, bore McMahan's tags; and
that similar articles were missing from McMahan's store. The assistant manager of the store
was able to identify some of the articles in evidence as being some of the missing articles. We
find no merit to this claim of error.
[Headnote 4]
4. Appellant claims that the trial court erred in receiving in evidence Exhibit Q which was
a photograph of the articles impounded upon the apprehension of appellant. In order to locate
a party suspected of receiving stolen goods, the articles were placed in the Cadillac
automobile and taken by McDonald, who was released from custody for this purpose, to a
Utah Street address where the suspected recipient appeared and was arrested. After the arrest,
the photograph, Exhibit Q, was taken.
The purpose of the introduction of Exhibit Q was solely to perfect the chain of custody of
the stolen articles from the time of their theft and of their recovery thereafter to the time of
the trial, in order to prove identity of the articles. This was not an attempt to show the
commission of another crime by appellant as occurred in Nester v. State, 75 Nev. 41, 334
P.2d 524. In fact, the evidence showed that appellant was not involved in this second episode.
The exhibit was relevant to the issue of identity of the goods, and any prejudice which might
have resulted to appellant by proof of the apprehension of another person suspected of a
criminal offense was incidental. Furthermore, because the existence of the second arrest was
first shown by appellant's counsel during the cross-examination of a state witness who was
called in connection with the identification of the said articles recovered from appellant, he
cannot now assert prejudicial error if any there was. Appellant has failed to point out in what
manner the reception in evidence of Exhibit R, which was a list of the items shown in Exhibit
Q and identified as such, was prejudicial, although such exhibit may well have been
immaterial.
in Exhibit Q and identified as such, was prejudicial, although such exhibit may well have
been immaterial.
[Headnote 5]
5. Appellant assigns as error the court's refusal to give its requested instruction pertaining
to reasonable doubt and the giving of certain instructions pertaining to the unexplained
possession of recently stolen property. An examination of the 44 instructions given reveals
that the subject matter of said proffered instruction was given, and given in the only manner
permitted by statute. NRS 175.195. The instructions as given were all based on correct
propositions of law as applied to the particular evidence in this case.
[Headnote 6]
6. We have concluded from the record that the evidence therein was sufficient to identify
some of the property in the possession of appellant at the time of his arrest to be property of
McMahan's Furniture Store, which property had been stolen within an hour and a half before
such apprehension; that the theft was accomplished by a breaking and entering into the
building housing said furniture store; that the oral admission against interest of appellant
placed him at the scene of the entry shortly after the breaking into the building had taken
place; and that the size and character of the stolen articles warrants a conclusion that all three
suspects had participated in the breaking and entering. All of the evidence was for the
consideration of the jury, and it was within their sole province to determine whether they
were convinced by the evidence of appellant's guilt of the offense charged beyond a
reasonable doubt.
No prejudicial error appearing, the judgment and order denying the motion for a new trial
are affirmed.
____________
76 Nev. 470, 470 (1960) Hickok v. Turner
JOHN F. HICKOK and HELEN HICKOK, His Wife, and ZACK S. ZETOONEY and
CATHERINE E. ZETOONEY, His Wife, Appellants, v. LILLIAN TURNER, Respondent.
No. 4300
December 12, 1960 357 P.2d 595
Appeal from order of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge, Department No. 1, denying appellants' motion for new trial.
Action by an assignee of a tenant to recover from landlord prepaid unearned rentals on
leased premises which were destroyed by fire. The trial court entered judgment for plaintiff
and landlords appealed. The Supreme Court, Badt, J., held that where lease provided that in
the event landlords did not terminate and end the lease by written notice, the rental provided
for would abate from the date of a fire until the date premises were restored to a specified
condition, and the leased premises were destroyed when the lease had three months to run,
and the building was not rebuilt within such period, prepaid and unearned rent for such three
months was recoverable by tenant, even though landlords did not notify tenant of whether
they elected to terminate the lease or restore the premises.
Affirmed.
Guild, Busey & Guild, of Reno, for Appellants.
Emile J. Gezelin, of Reno, for Respondent.
1. Landlord and Tenant.
Where lease provided that in the event landlords did not terminate and end the lease by written notice, the
rental provided for would abate from the date of a fire until the date premises were restored to a specified
condition, and the leased premises were destroyed when the lease had three months to run, and the building
was not rebuilt within such period, prepaid and unearned rent for such three months was recoverable by
tenant, even though landlords did not notify tenant of whether they elected to terminate the lease or restore
the premises.
2. Landlord and Tenant.
Where no damage resulted to landlords by reason of purported closing of leased premises by the city, due
to failure of tenant to obtain a license, in accordance with the terms of the lease, and
landlords were paid rentals for every month of the lease except three months which
followed destruction of the premises by fire, landlords were not entitled to retain
such rental as liquidated damages for such breach of the lease.
of tenant to obtain a license, in accordance with the terms of the lease, and landlords were paid rentals for
every month of the lease except three months which followed destruction of the premises by fire, landlords
were not entitled to retain such rental as liquidated damages for such breach of the lease.
OPINION
The question presented is the right of a lessee to recover from his lessors prepaid unearned
rentals on the leased premises which had been destroyed by fire. Action for recovery of these
rentals was filed by the assignee of the original lessee. Such assignee is herein referred to as
the lessee. The question is resolved by a construction of the written lease. It provided for the
payment by the lessee to the lessors of $2,400, being six months' rental at $400 a month, to
apply, respectively, on the first and last five months' rent. The payment was to assure
performance of the terms of the lease. The lease contained the covenants set forth in the
margin.
1

On June 29, 1957 the building was destroyed by fire. At that time three months remained
of the lease term, namely July, August, and September 1957, and $1,200 of the $2,400
guaranty was held by the lessors.
____________________

1
It is further agreed that in the event during the term of this lease said premises or the improvements thereon
are damaged or are destroyed by fire * * * to such an extent that Lessors' insurance settlement or recovery is
insufficient to pay in full for all repairs necessary to restore said premises to their former condition and also to
pay in full for all additions, repairs, improvements, or alterations then required by any municipal ordinance, * * *
the Lessors hereby reserve the right to immediately at their sole option terminate, cancel and end this lease upon
written notice to Lessees and thereupon to release Lessees from the payment of further rent thereafter. In the
event such written notice is given to Lessees by Lessors and this lease thereupon terminated, and in the further
event Lessors thereafter repair or reconstruct said premises, the Lessees shall have the first option to acquire a
new lease upon said premises * * *. In the event Lessors do not so terminate and end this lease by such a written
notice the rental provided for herein shall abate from the date of such fire until the date the premises are restored
to the condition hereinabove specified.
It is further agreed that in the event during the term of this lease said premises or the building in which the
same are situated or either of them are condemned by municipal or State authorities for any cause or reason that
this lease upon such condemnation shall terminate and Lessees shall be under no further obligation to pay rent
hereunder and Lessors shall upon such condemnation be relieved of any further obligation to Lessees under this
lease.
namely July, August, and September 1957, and $1,200 of the $2,400 guaranty was held by the
lessors. On July 2, 1957 the lessee wrote the lessors requiring them to notify her whether they
elected to terminate the lease or restore the premises. On July 8 the lessors replied that they
had not yet been able to ascertain whether the insurance settlement would permit them to
rebuild, and were not yet in position to decide whether or not to exercise the option to
terminate. On July 18 the lessee again asked for a prompt reply. On September 24 the lessors
wrote that the city council of the City of Reno ordered the building demolished and that the
lessors had contracted for this work to commence on October 1. On October 14 the lessee
demanded return of the $1,200 unearned rental. This having been refused, the lessee sued and
obtained judgment for the $1,200.
At the trial defendants showed that the insurance settlement was not made until October 1.
The insurance recovered was $103,000, and appellants testified that it would require about
$200,000 to restore the premises in such manner as to comply with the city's building code
requirements.
[Headnote 1]
Appellants specify no errors other than the trial court's alleged misconstruction of the
lease. They contend that as the lease reserved the option only to the lessors to terminate the
lease in event of a fire which damaged the premises to such extent that the insurance recovery
should be insufficient to restore the premises, they could not be required to exercise their
option until the amount of insurance recovery was determined. Appellants then argue as
follows:
Under the condemnation clause of the lease, the lease terminates upon condemnation and
the lessee is under no further obligation to pay rent and the lessors are relieved of any further
obligation on their part. This would relieve lessors of any obligation to give or not to give any
notice under the fire clause. Since the monthly rental is due on the first day of the month
under the terms of the lease the lessors would apply the last $400.00 held by them to the
September 1, 1957, rental payment, and under the fire clause no further rental obligation
exists.
$400.00 held by them to the September 1, 1957, rental payment, and under the fire clause no
further rental obligation exists. At most, Turner would be entitled to a rental rebate for the
last seven days of September or the sum of $93.33.
The position taken by the appellants is untenable. The governing provision here applicable
is the following: In the event Lessors do not so terminate and end this lease by such a written
notice the rental provided for herein shall abate from the date of such fire until the date the
premises are restored to the condition hereinabove specified.
The building was destroyed when the lease had three months to run. The prepaid and
unearned rent for these three months was properly adjudged by the trial court to be
recoverable by the lessee.
[Headnote 2]
Appellants further contend that the premises were operated for three months, namely,
January, February, and March 1957 without a license; that it was closed by the city on April
10, 1957 and never reopened; that this was a violation of the city ordinance and a failure to
perform the terms of the lease; and that for such reason the lessors were entitled to retain the
$1,200 as liquidated damages. No damage resulted to the lessors by reason of the facts
recited. The lessors were paid rental for every month of the lease except for the last three
months, which followed the destruction of the premises by fire. Nor did the lessors even
suffer any loss of rental on that account, as the insurance they received included their loss of
rental for those three months.
The judgment is affirmed.
____________
76 Nev. 474, 474 (1960) Stokes v. State
HOMER RAY STOKES, Appellant, v. THE
No. 4247
December 14, 1960 357 P.2d 851
Appeal from order of the First Judicial District Court denying motion for new trial,
Douglas County; Peter Breen, Judge Presiding.
Defendant was convicted in the trial court for using cheating device on slot machines, and
motion for new trial was denied, and defendant appealed. The Supreme Court, Badt, J., held
that notwithstanding statutory provision making it unlawful for any person to operate any slot
machine without having first procured and thereafter maintaining all required federal, state,
county, and municipal gaming licenses, under statute making it unlawful for any person to
employ or have on his person any cheating device to facilitate cheating in playing any slot
machine, conviction could be obtained without showing that slot machines were licensed by
federal government.
Affirmed.
Harry A. Busscher, of Reno, for Appellant.
Roger D. Foley, Attorney General, and Carl F. Martillaro, District Attorney, for
Respondent.
1. Fraud.
The words licensed gambling game, as used in statute making it unlawful for any person playing any
licensed gambling game to employ or have on his person any cheating device to facilitate cheating in such
games or in playing any slot machine, were not carried forward to unlawful act of using or having cheating
device to facilitate cheating in playing any slot machine. NRS 465.080.
Words chosen, from various alternative acts declared by statute to be unlawful, as sort of embellishment
to information charging employment of cheating device in playing licensed slot machines, might be
disregarded as surplusage. NRS 465.080.
3. Fraud.
Information sufficiently charged violation of statute making it unlawful for any person to employ or have
on his person any cheating device to facilitate cheating in playing any slot machine.
any cheating device to facilitate cheating in playing any slot machine. NRS 465.080.
4. Fraud.
Notwithstanding statutory provision making it unlawful for any person to operate any slot machine
without procuring and maintaining, all required federal, state, county, and municipal gaming licenses,
under statute making it unlawful for any person to employ or have on his person any cheating device to
facilitate cheating in playing any slot machine, conviction could be obtained, for using cheating device on
slot machines, without showing that slot machines were licensed by federal government. NRS 463.160,
465.080; 26 U.S.C.A. (I.R.C. 1954) 4461, 4462, 4901, 6806, 7011.
OPINION
[Headnote 1]
This appeal calls for a construction of NRS 465.080 making it a gross misdemeanor to use
various cheating devices in playing certain gambling games, slot machines, etc. The section
in question, NRS 465.080, describes in the alternative a number of acts, each of which is
declared to be unlawful. That part with which we are here concerned reads as follows: It
shall be unlawful for any person * * * to employ or have on his person any cheating device to
facilitate cheating in such games or in playing any slot machine, lawful vending machine,
coin box, telephone or other receptacle * * *. The entire section is printed in the margin.
1
It
is apparent to us that the words used in the initial clause thereof, to wit, licensed gambling
game are so detached from the alternative acts declared to be unlawful that the words we
have italicized are not carried forward to the particular unlawful act that we have first
quoted.
____________________

1
1. It shall be unlawful for any person playing any licensed gambling game to use bogus or counterfeit
chips, or to substitute and use in any such game cards or dice that have been marked, loaded or tampered with,
or employ or have on his person any cheating device to facilitate cheating in such games or in playing any slot
machine, lawful vending machine, coin box, telephone or other receptacle designed to receive or be operated by
lawful coin of the United States of America in furtherance of or in connection with the sale, use or enjoyment of
property or service, to use other than lawful coin, legal tender of the United States of America, not of the same
denomination as the coin intended to be used in such device, or to use or have on his person any cheating or
thieving device to facilitate removing from any slot machine, lawful vending machine, coin box, telephone or
other receptacle any part of the contents thereof.
from the alternative acts declared to be unlawful that the words we have italicized are not
carried forward to the particular unlawful act that we have first quoted.
The information charged that appellant did willfully and unlawfully use a cheating
device, to wit, a metal instrument to facilitate cheating in playing slot machines, and did
employ said cheating device in playing licensed slot machines, located in the Nevada Club, in
Tahoe Township, Douglas County, State of Nevada.
[Headnote 2, 3]
It is apparent that the draftsman of the information chose, from the various other
alternative acts declared by the section to be unlawful, a word here and there as a sort of
embellishment. The surplusage may be disregarded. State v. Murray, 67 Nev. 131, 215 P.2d
265, 216 P.2d 606; Bridges v. United States, 346 U.S. 209, 73 S.Ct. 1055, 97 L.Ed. 1557;
Vanderhorst v. State, 151 Fla. 620, 10 So.2d 138. Without such surplusage the offense
described in the alternative above quoted is clearly charged.
[Headnote 4]
Appellant contends that NRS 465.080, however, must be read in connection with other
sections; that under the section itself a conviction cannot be had without a showing that the
cheating device was used on licensed slot machines; that the state recognized this in including
it in the information; that other sections deal specifically with the nature of the licenses
required; that although it is conceded that the state proved that the slot machines in question
were duly licensed by the state and county, there was no proof that they were licensed by the
federal government. We hold that these contentions are without merit.
It is conceded that appellant and one Richard Charlesworth were apprehended and placed
under arrest for using a cheating device on slot machines at the Nevada Club and that
appellant was in company with said Charlesworth and that a common plan or scheme existed
between them as far as Charlesworth's actions were concerned and that appellant
became a principal to Charlesworth's use of a cheating device on slot machines.
between them as far as Charlesworth's actions were concerned and that appellant became a
principal to Charlesworth's use of a cheating device on slot machines. It is contended only
that there was a fatal lack of proof of a federal license and that such license is specifically
required under the provisions of NRS 463.160, making it unlawful for any person to operate
any game or slot machine as theretofore defined without having first procured, and thereafter
maintaining in full force and effect, all federal, state, county and municipal gaming licenses
as required by statute or ordinance or by the governing board of any incorporated city or
town; and that pursuant to the provisions of the Federal Internal Revenue Code every person
maintaining a coin-operated gaming device must pay a special tax; that he is required to
register with the collector of his district; that he may not be engaged in or carry on any trade
or business thus described until he has paid a special tax therefor in the manner provided; that
he must post in his establishment stamps denoting the payment of such special tax; and that
these federal requirements existed prior to the enactment of NRS 465.080. Internal Revenue
Code 1954, as amended. 26 U.S.C.A. secs. 4461, 4462, 4901, 6806, 7011.
In short, it is appellant's contention that nothing in the Nevada statute makes it unlawful to
use a cheating device on an unlicensed slot machine, but only on a slot machine licensed by
the state, county, local government, and federal government. We reject this contention also,
so far as it applies to the particular act alternately described in the section as unlawful.
NRS 463.020 1 (o) provides: License' or gaming license' means any license issued by
the state or any political subdivision thereof pursuant to this chapter * * *.
This would appear to be in conflict with NRS 463.160 above quoted if the federal tax may
be considered a federal gaming license. It is clear, however, that the federal tax is not a
license. It is operative in all states, including not only Nevada, where gambling and the
maintenance of slot machines are lawful, but in all states where such operations are
unlawful.
including not only Nevada, where gambling and the maintenance of slot machines are lawful,
but in all states where such operations are unlawful. Appellant does not contend, nor could he
logically contend, that the payment of the federal tax and the possession of the federal stamps
evidencing such payment and proof of registration with the local director of internal revenue
would or could authorize the maintenance of gambling or of slot machines in states declaring
such operations unlawful. We therefore conclude that compliance with the federal
requirements would not result in a gaming or slot machine license from the federal
government, and that it was not necessary for the state to charge or prove the same.
The point discussed is included in appellant's assignments of error with reference to
instructions given, instructions refused, denial of motion for instructed verdict, and rulings on
evidence, but they all apply to the same contention.
The judgment and order denying motion for new trial are affirmed.
____________
76 Nev. 478, 478 (1960) Ex Parte Hutchinson
In the Matter of the Application of ROBERT O.
HUTCHINSON for a Writ of Habeas Corpus.
No. 4371
December 16, 1960 357 P.2d 589
Original proceeding. Application of Robert O. Hutchinson for a writ of habeas corpus.
Original habeas corpus proceeding brought on contention that there had been insufficient
evidence presented to magistrate to justify his action in holding petitioner to answer for crime
of burglary charged in a presentment. The Supreme Court, McNamee, C. J., held that where
only evidence that burglary had been committed and only evidence that accused was
involved in commission thereof adduced before magistrate was testimony of admitted
coconspirator and other testimony adduced did not in any respect corroborate the
admitted coconspirator's testimony that accused was connected with offense or that
burglary had been committed and other testimony would at most be evidence that a
larceny had been committed, magistrate was without authority to bind accused over for
trial and accused was entitled to release.
where only evidence that burglary had been committed and only evidence that accused was
involved in commission thereof adduced before magistrate was testimony of admitted
coconspirator and other testimony adduced did not in any respect corroborate the admitted
coconspirator's testimony that accused was connected with offense or that burglary had been
committed and other testimony would at most be evidence that a larceny had been committed,
magistrate was without authority to bind accused over for trial and accused was entitled to
release.
Writ granted, and petitioner ordered to be discharged from custody.
Gordon L. Hawkins and George M. Dickerson, of Las Vegas, for Petitioner.
Roger D. Foley, Attorney General, John F. Mendoza, District Attorney, Clark County, and
John Spann, Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
Where only evidence that burglary had been committed and only evidence that accused was involved in
commission thereof adduced before magistrate was testimony of admitted coconspirator and other
testimony adduced did not in any respect corroborate the admitted coconspirator's testimony that accused
was connected with offense or that burglary had been committed and other testimony would at most be
evidence that a larceny had been committed, magistrate was without authority to bind accused over for trial
and accused was entitled to release on habeas corpus. NRS 175.265, subd. 1.
2. Habeas Corpus.
Writ of habeas corpus will issue to end that petitioner will not be compelled to undertake burden of trial
where evidence before committing magistrate is legally insufficient to indicate that he is guilty of any
offense.
OPINION
This is an original petition for a writ of habeas corpus.
A presentment was found against petitioner by the grand jury of Clark County charging
him with burglary in the first degree.
grand jury of Clark County charging him with burglary in the first degree. Pursuant thereto
petitioner was brought before the Honorable David Zenoff, Judge of the Eighth Judicial
District Court, sitting as a magistrate, who proceeded to examine the charge contained in the
presentment. From the evidence adduced, petitioner was bound over for trial.
The only question before us is whether or not sufficient evidence was presented to said
magistrate to justify his action in holding petitioner to answer for the crime charged in the
presentment.
Alfred E. Mazzucca testified that on March 29, 1957, he and petitioner Hutchinson were
police officers of the city of Las Vegas. At about 11:00 p. m. of that particular day, he and
Hutchinson checked out of the patrol car in which they had been riding, leaving the car at
1100 Fremont Street. They proceeded to the Wright-Marinello Beauty Salon located at 1106
Fremont Street. They shook the back door, slipped the lock
1
with a knife, the door opened,
and they entered. They entered to see what we could steal. Thereupon they took numerous
articles consisting of cosmetics, towels, and two hair driers which they put in a suitcase found
in the establishment.
Subsection 1 of NRS 175.265 provides:
A conviction shall not be had on the testimony of an accomplice, unless he is
corroborated by other evidence which in itself, and without the aid of the testimony of the
accomplice, tends to connect the defendant with the commission of the offense; and the
corroboration shall not be sufficient if it merely shows the commission of the offense or the
circumstances thereof.
It is conceded Mazzucca should be regarded as an accomplice.
In order to comply with said statute the following corroborating evidence was introduced.
Nellie Cornwell testified that on March 29, 1957 she was an employee of
Wright-Marinello Beauty Salon located at 1106 Fremont.
____________________

1
Well, there is certain types of doors that you can, with a pen knife, you can slide in between the latch and
push it back, push the lock back into the door and the door will open.
located at 1106 Fremont. On that day she was taking inventory of the merchandise in the
shop. On the following day she rechecked some of the merchandise and noticed articles
missing, consisting of cosmetics, a hair drier, suitcase, scissors, etc.
Q. After you called the police what did you do or what happened? A. Well, the police
came and there was no sign of a disturbance, of breaking into the shop and how they could
have gotten in only by picking the lock, that was the only sign.
Q. Now, you stated that you and the policemen examined the shop, is that correct? A.
Yes.
Q. And you have also stated that you could find no evidence of breaking into the shop, is
that correct? A. Yes.
Exhibit A in evidence is the burglary report given by Nellie Cornwell over her signature.
In it, the following form questions and her answers thereto appear:
Type of Premises Entered: 1 story beauty salon.
Entered Through: Possibly rear door.
Instrument Used: Unknown.
Method Used to Gain Entrance (Broke Glass, Cut Screen, Broke Lock, Cut Made in Roof,
etc.): Possibly door unlocked. No signs of entry made. Suspect possibly a key, and was an
open door.
Sergeant Martin Boyce testified that he was dispatcher and desk sergeant for the Las Vegas
Police Department on March 29, 1957. His work sheet or log showed that Mazzucca and
Hutchinson worked together that evening and that the Wright-Marinello Beauty Salon was in
their work district. The log disclosed that Mazzucca and Hutchinson checked out of their car
in the vicinity of the beauty shop at 11:03 p. m. and checked back in at 11:23 p. m. This was
usual procedure.
With only this evidence of corroboration the magistrate bound petitioner over for trial.
[Headnote 1]
The only evidence of a burglary having been committed is the testimony of Mazzucca, and
the only evidence that petitioner was involved in the commission of a crime was likewise the
testimony of Mazzucca.
of a crime was likewise the testimony of Mazzucca. Nellie Cornwell's testimony and written
report are totally devoid of a wrongful entry and at most would be evidence of a larceny. The
testimony of Sergeant Boyce placed the petitioner at the scene of the alleged offense at a time
corresponding with the testimony of Mazzucca, but both officers were in that vicinity in the
performance of their ordinary police duties and not under any suspicious circumstances.
As there was no corroboration whatever of Mazzucca's testimony either connecting
petitioner with the commission of any offense or that a burglary had been committed, the
committing magistrate was without authority to bind over petitioner for trial. Ex Parte
Sullivan, 71 Nev. 90, 280 P.2d 965; In Re Oxley and Mulvaney, 38 Nev. 379, 149 P. 992.
[Headnote 2]
In Nevada the writ of habeas corpus will issue to the end that petitioner will not be
compelled to undertake the burden of a trial where the evidence before the committing
magistrate is legally insufficient to indicate that he is guilty of any offense. Eureka County
Bank Habeas Corpus Cases, 35 Nev. 80, 126 P. 655, 129 P. 308.
The petitioner will stand discharged.
____________
76 Nev. 483, 483 (1960) Rea v. City of Reno, Et Al.
FRANCIS C. REA, JR., KEITH HENRIKSON, WILLIAM F. DAVIS, JAMES R. NEIL,
ROBERT CAVAKIS, and LESLIE McGINNIS, Appellants, v. THE MAYOR, CITY
MANAGER, and CITY COUNCIL, as the Governing Body of the CITY OF RENO,
NEVADA, and BUD BAKER, KENNETH BROWN, GEORGE CARR, JOHN
MARSHALL, JOSEPH MASTROIANNI, DICK DIMOND, and CHARLES COWEN,
Constituting the Members of Said Governing Body, Respondents.
No. 4382
December 16, 1960 357 P.2d 585
Department No. 2.
Petition for mandamus to require governing body of a municipality to adopt certain
amendments to the city charter contained in a verified initiative petition containing an excess
of 60 percent of the registered voters of the city. The trial court dismissed the petition and an
appeal was taken. The Supreme Court, McNamee, C. J., held that statute providing that upon
the filing of a verified petition bearing the signatures of not less than 60 percent of the
registered voters of a city praying for the adoption of any amendment set forth in the petition,
the governing body of such city shall adopt such amendment by resolution without further
proceeding, was unconstitutional in that it exceeded power granted the legislature to provide
by law for the manner of exercising initiative and referendum powers, by failing to provide
for an election of proposed charter amendments.
Affirmed.
Badt, J., dissented.
Roger Bissett, of Reno, for Appellants.
Roy Lee Torvinen, City Attorney, of Reno, for Respondents.
Although provisions of section of the constitution providing for initiative and referendum powers are
self-executing with reference to state matters, they are not self-executing with reference to county or
municipal matters. Const. art. 19, sec. 3.
The initiative power given to the electors of a municipality by the constitution, with respect to municipal
legislation, is the power to propose laws which thereafter must be enacted or rejected at the polls, as
distinguished from a power which would effect a legislative act without an election. Const. art. 19, sec.
3.
3. Statutes.
Initiative is the power of the people to propose bills and laws and to enact or reject them at the polls,
independent of the legislative assembly.
Statute providing that upon the filing of a verified petition bearing the signatures of not less than 60
percent of the registered voters of a city praying for the adoption of any amendment set forth in the
petition, the governing body of such city shall adopt such amendment by resolution without further
proceeding, was unconstitutional in that it exceeded power granted the legislature to provide for the manner
of exercising initiative and referendum powers, by failing to provide for an election of proposed charter
amendments. NRS 268.010, subd, 1; Const. art. 19, sec. 3.
OPINION
The sole question necessary for decision in this appeal is whether paragraph b, subsection
1, NRS 268.010, violates Art. 19, sec. 3, of the Nevada Constitution.
Art. 19, sec. 3, of the Nevada Constitution provides for the initiative and reads in part as
follows: The people reserve to themselves the power to propose laws * * * and to enact or
reject the same at the polls, independent of the legislature. * * * The initiative and
referendum powers in this article provided for are further reserved to the qualified electors of
each county and municipality as to all local, special and municipal legislation of every
character in or for said respective counties or municipalities. The legislature may provide by
law for the manner of exercising the initiative and referendum powers as to county and
municipal legislation, but shall not require a petition of more than 10 per cent {10%) of
the qualified electors to order the referendum, nor more than 15 per cent {15%) to
propose any municipal measure by initiative."
referendum powers as to county and municipal legislation, but shall not require a petition of
more than 10 per cent (10%) of the qualified electors to order the referendum, nor more than
15 per cent (15%) to propose any municipal measure by initiative.
[Headnote 1]
Although the provisions of said sec. 3 are self-executing with reference to state matters,
they are not self-executing with reference to county and municipal matters. Beebe v. Koontz,
72 Nev. 247, 302 P.2d 486.
Paragraph b, sec. 1, NRS 268.010, is an attempt by the legislature to exercise the
constitutional power given it by said sec. 3 to provide for the manner of exercising the
initiative and referendum powers with respect to county and municipal legislation. Said
paragraph b reads as follows:
Upon the filing of a verified petition bearing the signatures of not less than 60 percent of
the registered voters of the city or town, as certified by the clerk of the county wherein the
city or town is located, praying for the adoption of any amendment or amendments fully set
forth in such petition, and exhibited to each of such signers prior to the signature being
affixed thereto. The signatures need not all be appended to one paper, but each signer shall
add to his signature his place of residence. One of the signers of each such petition shall
swear that the statements therein made are true to the best of his knowledge and belief.
Upon the filing of any such petition bearing the required number of signatures, duly
verified and setting out therein the amendment or amendments proposed, the governing body
of such city or town shall adopt such amendment or amendments by resolution without
further proceeding.
Pursuant to said paragraph b, a verified petition containing in excess of 60 percent of the
required signatures praying for the adoption of certain amendments to the charter of the City
of Reno was filed with the city clerk of the City of Reno. Thereafter respondents refused to
adopt the said amendments. Action was commenced in the court below for a writ of
mandamus to compel the adoption of said amendments.
the court below for a writ of mandamus to compel the adoption of said amendments. Upon
the lower court's dismissal of the petition for mandamus this appeal was taken. In our
opinion, the legislature in enacting NRS 268.010 went beyond the said powers granted to it
by the constitution, because it failed to provide therein for the submission of proposed charter
amendments to the decision of the voters at the polls.
[Headnotes 2-4]
The initiative power provided for by the constitution as aforesaid is reserved to the
qualified electors of each municipality. That power is expressly defined as the power to
propose laws
* * * and to enact or reject the same at the polls, independent of the legislature. It is clear to
us from the definition of the power reserved as quoted above that the constitution does not
contemplate the initiative without a ballot. In other words, the initiative power given to the
electors of a municipality with respect to municipal legislation is no different from the
initiative power given to the people as a whole with respect to state matters. This power
consists of the power to propose laws which thereafter must be enacted or rejected at the
polls as distinguished from a power which would effect a legislative act without an election.
This conclusion results not only from our constitutional provisions but also from the
definitions of initiative found in reputable publications. Black's Law Dictionary defines
initiative as the power of the people to propose bills and laws and to enact or reject them
at the polls, independent of the legislative assembly. The same definition is found in 82
C.J.S., Statutes, sec. 115. In 1 Bouvier's Law Dictionary, Rawle's Third Revision, p. 1569
initiative is the right of a specified number of the electorate to unite in proposing laws to
the legislative body, which, after due consideration must submit the same to the vote of the
people for their approval or disapproval.
Appellants contend that Caton v. Frank, 56 Nev. 56, 44 P.2d 521, is controlling of the
issues here submitted. In that case a statute similar to said paragraph b received the attention
of this court in a case where a writ of mandamus was sought to compel the governing
body of the City of Reno to act upon a petition to amend the city charter.
received the attention of this court in a case where a writ of mandamus was sought to compel
the governing body of the City of Reno to act upon a petition to amend the city charter. It was
asserted that subdivision 2 of section 1257, NCL 1929 (now paragraph b, subsection 1, NRS
268.010) was unconstitutional in that it was in conflict with section 8 of article 8 of the
Constitution of the State of Nevada
1
in permitting an amendment of a city charter by the
filing of a petition signed only by a percentage of qualified voters,
2
because said section 8 of
article 8 contemplates the amendment of a city charter only by an election held for that
purpose at which all of the electors are permitted to express their choice by vote. This court
did not agree with said contention but held that the legislature may under the powers granted
by the said section 8 of article 8, provide any reasonable and uniform method whereby the
qualified voters of a city may, by a majority, express a desire to amend such charter, as by a
proper petition signed by sixty percent of the qualified voters, as is provided by said
subdivision 2 of said section 1257, NCL 1929, which we hold, is not in conflict with said
provision of the constitution. The writ was denied however because this court concluded that
petitioners had failed to bring themselves within the terms of said subdivision 2. Although it
was argued by respondents
3
that said subdivision 2 was in violation of Art. 19, sec. 3, of the
Nevada Constitution, the concluding paragraph of the opinion reveals that the court felt it
unnecessary to
____________________

1
Art. 8, sec. 8: Municipal corporations formed under general laws. The legislature shall provide for the
organization of cities and towns by general laws and shall restrict their power of taxation, assessment, borrowing
money, contracting debts and loaning their credit, except for procuring supplies of water; provided, however,
that the legislature may, by general laws, in the manner and to the extent therein provided, permit and authorize
the electors of any city or town to frame, adopt and amend a charter for its own government, or to amend any
existing charter of such city or town.

2
Subdivision 2 of section 1257, NCL 1929, contains the words qualified voters while said paragraph b
contains the words registered voters.

3
This argument of respondents appears only in the official report of Caton v. Frank found in 56 Nev. 56, 59.
decide the point. We therefore conclude that the Caton case is not controlling of the issues
here submitted.
In the Caton case the court said that in view of the fact that the petition was insufficient to
justify the issuance of the writ as prayed for it would be unnecessary to decide the other
points raised. For the same reason it was unnecessary for the court to decide whether the
statute was unconstitutional under Art. 8, sec. 8. However, Art. 8, sec. 8, in our opinion is not
inconsistent with Art. 19, sec. 3. Even if it were, Art. 19, sec. 3, with a later date of adoption
is controlling. Farrar v. Board of Trustees, 150 Tex. 572, 243 S.W.2d 688; Pressley v.
Industrial Commission, 73 Ariz. 22, 236 P.2d 1011; Opinion to the Governor, 78 R.I. 144, 80
A.2d 165.
The respondents acted properly in failing to adopt by resolution the legislation contained
in the petition, because we have concluded that such action would constitute a procedure
violative of Art. 19, sec. 3, of our constitution. The lower court, therefore, properly dismissed
the petition for writ of mandamus.
Affirmed.
Pike, J., concurs.
Badt, J., dissenting:
I dissent.
It is my opinion that the presumption of constitutionality has not been overcome. Of the
many cases approving such presumption, no case in this state seems to have expressed it more
strongly than Hess v. Pegg, 7 Nev. 23 (5-6-7 Nev. 715, 721). This court there said:
For this court to oppose its judgment to that of the legislature, excepting in a case
admitting of no reasonable doubt, would not only be contrary to all well considered
precedent, but would be an usurpation of legislative functions. It cannot be denied that the
tendency in some states of this union is that way, undoubtedly from good motives; but the
sooner the people learn that every act of the legislature not found to be in clear, palpable and
direct conflict with the written constitution,' must be sustained by the courts, the sooner they
will apply the proper correction to unjust or impolitic legislation, if such there be, in the
more careful selection of the members of that branch of the state government to which
they have delegated and in which they have vested the 'legislative authority' of this state.
will apply the proper correction to unjust or impolitic legislation, if such there be, in the more
careful selection of the members of that branch of the state government to which they have
delegated and in which they have vested the legislative authority' of this state. No court
should, and this court will not, step out of the proper sphere to undo a legislative act; and
therein, no court should, and this court will not, declare any statute void because
unconstitutional, without clear warrant therefor.
It seems to me that sec. 8 of Art. 8 of the constitution considered in Caton v. Frank, 56
Nev. 56, 44 P.2d 521, 522, just as clearly contemplates an election as does sec. 3 of Art. 19.
At least it connoted that much to this court, for it referred to the contention that the initiative
petition there involved was limited by the constitution to a vote of the electors cast at
an election and held that the legislature could provide any reasonable and uniform method
whereby the qualified voters expressed their desire.
I see no escape from the fact, then, that this court held in Caton v. Frank that sec. 8 of Art.
8 required an election; that in such election the electors, or voters, would vote. This being so,
the language there used is just as effective as that used in sec. 3 of Art. 19 in which the people
reserved to themselves the power to propose laws and to enact or reject the same at the polls.
Section 3 of Art. 19 then provides: The legislature may provide by law for the manner of
exercising the initiative and referendum powers as to county and municipal legislation, * *
*. It was pursuant to that constitutional provision that the legislature enacted NRS 268.010,
under which the electors could themselves amend their charter by filing a 60 percent initiative
petition. This was held in Caton v. Frank to have provided a reasonable and uniform method
whereby the qualified voters of a city may, by a majority, express a desire to amend such
charter and which was held to be not in conflict with sec. 8 of Art. 8.
I see no valid reason for overruling that decision. I agree with that holding that the
machinery of a 60 percent petition provided a reasonable and uniform method under
which 60 percent of the voters express their will.
percent petition provided a reasonable and uniform method under which 60 percent of the
voters express their will. We said in Beebe v. Koontz, 72 Nev. 247, 302 P.2d 486, 489: * * *
in the Caton case the action sought by the petition was far more drastic, in that the petition
itself, signed by 60 percent of the electors, was a species of election and actually effected the
amendment without an election, while the petition in the instant case simply initiated election
proceedings. We recognized such a distinction in State ex rel. Quimby v. City of Reno, 71
Nev. 144, 282 P.2d 1071. If that was dictum in Beebe v. Koontz, I would declare it here to
be the lawour approval of the direct pronouncement of the legislature.
In the Quimby case just mentioned, involving annexation of property to the city, we
referred to action by the city council, where the action of the board does not simply initiate
election proceedings but in itself is a species of election which effectuates the annexation.
Reference was made to decisions from other jurisdictions which used similar expressions.
The majority of the court appears to feel that, although in Caton v. Frank this court held
that sec. 8 of Art. 8 of the constitution was not violated by a statute permitting the amendment
of the city charter by the filing of a petition signed by only a percentage of the qualified
voters, the court there felt that it was unnecessary to decide the point and that the holding is
therefore not controlling in the instant case. With all respect, I am unable to agree with this
conclusion. Caton v. Frank was an original proceeding in mandamus in this court to compel
the mayor and city council of Reno to proceed upon a petition signed by a number of the
qualified voters of Reno to amend the charter. This court recited that the petition first
presented the question as to the constitutionality of the statute requiring such amendment
upon the filing of a 60 percent petition. As we have above noted, it disposed of this question
by deciding that the statute did not violate sec. 8 of Art. 8 of the constitution. It then
proceeded to the second point, namely, whether the petition had been signed by 60 percent
of the qualified electors.
had been signed by 60 percent of the qualified electors. It decided that it had not been so
executed and denied the writ. Then at the end of the opinion the court stated, as noted in the
main opinion: There are other questions raised by respondents' demurrer, but, we feel, in
view of the conclusion here reached, namely, that the petition is insufficient to justify the
issuance of the writ as prayed for, it would be unnecessary to decide the other points raised.
It did, however, definitely pass upon the constitutional question.
I am compelled to conclude that the majority places too much emphasis on those words
contained in sec. 3 of Art. 19 under which the people reserve to themselves the power to
propose laws * * * and to enact or reject the same at the polls, independent of the legislature,
* * *. The words italicized are in my opinion merely descriptive of the exercise of
independent choice, and the emphasis should be placed upon the reservation of the right of
initiative and referendum to the people and to reserve it to them independent of the
legislature. When the constitution itself provided that the legislature should provide the
manner of exercising the initiative and referendum powers and the legislature in its wisdom
felt that it would be a waste of time and expense to require an election at the polls when a
majority of the voters had already expressed their view in writing, I cannot conclude that this
was in clear, palpable and direct conflict with the written constitution, justifying the
decision of this court that it is necessary to undo [the] legislative act. At least I cannot so
conclude in the face of complete absence of authority to support such action. I would reverse
the judgment of the district court.
Badt, J.
____________
76 Nev. 492, 492 (1960) Wiechmann v. Hale
WESLEY W. WIECHMANN and PACIFIC INVESTMENT, Inc., a Nevada Corporation,
Appellants, v. PRESTON Q. HALE, Respondent.
No. 4302
December 29, 1960 358 P.2d 113
Appeal from judgment of the Second Judicial District Court, Washoe County; Jon R.
Collins, Presiding Judge, Department No. 3.
Action for real estate broker's commission brought by authorized agent whose salesman
had shown premises to purchasers before house was sold by member of firm that constructed
house. The trial court rendered judgment for plaintiffs, and defendants appealed. The
Supreme Court, Pike, J., held that evidence sustained findings that broker's salesman
produced ready, willing and able purchasers of property, and that, prior to sale, broker's
salesman notified defendants that purchasers were clients of his and salesman produced them
as prospective purchasers.
Judgment affirmed.
Ernest S. Brown, of Reno, for Appellants.
Leonard T. Howard and Robert H. Moore, of Reno, for Respondent.
Brokers.
In action for real estate broker's commission brought by authorized agent whose salesman had shown
premises to purchasers before house was sold by member of firm that constructed house, evidence
sustained findings that broker's salesman produced ready, willing and able purchasers of property, and
that, prior to sale, broker's salesman notified defendants that purchasers were clients of his and salesman
produced them as prospective purchasers.
OPINION
This is an appeal from the judgment of the trial court against appellants, jointly and
severally, for the sum of $1,475, representing the amount of a real estate broker's
commission found to be due from them to respondent.
$1,475, representing the amount of a real estate broker's commission found to be due from
them to respondent.
The real estate transaction involved a house on Ferris Lane in Mayberry Park Subdivision
in Washoe County, Nevada.
One Wiechmann, as authorized agent for the owner of the premises, Pacific Investment,
Inc., listed the dwelling house for sale with respondent, a real estate broker, at a sale price of
$29,500. Thereafter a salesman for respondent showed the premises to a Mrs. Flowers who
evinced her interest in purchasing the premises, but who stated her wish that her husband also
see them as a basis for reaching a decision. Mrs. Flowers also inquired of respondent's
salesman whether certain rooms in the then uncompleted house could be painted a different
color and whether a certain type of light fixture could be placed in the bathroom. On the
Sunday following, Mrs. Flowers returned to the subdivision with her husband for the purpose
of having Mr. Flowers inspect the house. Mr. and Mrs. Flowers found no one at the house
that Mrs. Flowers had been shown by respondent's salesman, and went to another nearby
house, also under construction, looking for respondent's salesman. There they met a Mr.
Nesbitt and a Mr. Dennis. Both the house in which this meeting occurred and the house
previously shown to Mrs. Flowers were in the process of construction by the construction
firm of Dennis and Roberts, of which Dennis was a member. Dennis was also a real estate
broker. Upon Mrs. Flowers' inquiring for respondent's salesman and stating that such
salesman had shown her the house in which she was interested, Nesbitt advised her that
Bowers, respondent's salesman, had nothing to do with the sale of such house. Nesbitt and
Dennis then conducted Mr. and Mrs. Flowers through the house which Mrs. Flowers had
previously examined. Nesbitt, a real estate broker and agent for Dennis subsequently
delivered a deposit receipt to one Robert Stoker, who was president of Pacific Investment,
Inc. Stoker was also office manager of Wiechmann's contracting firm. Stoker testified that he
signed the deposit receipt, which indicated that Mr. and Mrs.
Flowers had made a deposit on the purchase price of the home. About a month later, in July
1957, a deed from Pacific Investment, Inc., as grantor, naming Mr. and Mrs. Flowers as
grantees, was executed, and some six days thereafter the same was recorded. The sale price
was $30,500, a thousand dollars more than the sales price for the property, as listed with
respondent by Wiechmann. The deposit receipt placed in the escrow pertaining to the sale of
the premises was signed by Pacific Investment, Inc., Stoker, and the Dennis and Roberts
corporation. There was no evidence that any real estate commission was paid to either Nesbitt
or Dennis who effected the actual sale to Mr. and Mrs. Flowers. The only changes or
additions shown to have been made or added at the premises were those which had been
previously discussed by Mrs. Flowers with respondent's agent Bowers. They pertained to the
color of paint in certain rooms and a certain type of light fixture in another room. The basis of
the increase of one thousand dollars over the sales price as listed with respondent does not
clearly appear.
(1) In its written findings of fact the court found that Wiechmann listed the property with
respondent, with conditions * * * providing, among other things, that upon the plaintiff
producing a ready, willing and able buyer * * * Wiechmann would pay to plaintiff a
commission of 5% of the sale price; that Wiechmann was, at the time of making said
agreement, the agent of Pacific Investment, Inc., although Wiechmann did not at that time
disclose such agency. These further findings were also made:
5. That plaintiff, PRESTON Q. HALE, in accordance with the terms and conditions of
the oral agreement did produce a ready, willing and able buyer of the real properties, namely:
GARLAND and ALDINE FLOWERS and that notice of the production of this buyer was
given to defendants by telephone in various telephone conversations by and between plaintiff,
PRESTON Q. HALE, and agent of the defendants, ROBERT STOKER, General Manager of
PACIFIC INVESTMENT, INC., prior to sale of the same real properties to Mr. and Mrs.
Garland Flowers by a third party.
6. That prior to the consummation of the sale to Mr. and Mrs. Garland Flowers by the
defendants, WESLEY W. WIECHMANN and PACIFIC INVESTMENT, INC., plaintiff,
PRESTON Q. HALE, did notify them that the FLOWERS were clients of his office and that
he had produced them as prospective buyers.
7. This Court finds that plaintiff, PRESTON Q. HALE, did fulfill the terms and
conditions of the oral agreement by producing a ready, willing and able buyer for the sales
price of Twenty Nine Thousand Five Hundred Dollars ($29,500). That Mr. and Mrs. Garland
Flowers did purchase the real properties through a third party real estate agent and broker at a
sales price of Thirty Thousand Five Hundred Dollars ($30,500).
Appellants contend that Findings 5 and 6 are not supported by the evidence. They also
urge that, as respondent did not effect a sale of the premises, he was not entitled to a
commission, in the absence of a showing of fraud by the owner, preventing him from making
the sale, citing Ramezzano v. Avansino, 44 Nev. 72, 189 P. 681, and Close v. Redelius, 67
Nev. 158, 215 P.2d 659. We reject both contentions.
Respondent does not assert fraud on the part of the seller as preventing the sale by
respondent, but relies upon the general rule recognized in each of the above cited cases of this
court * * * that before a broker can be said to have earned his commission he must produce
a buyer within the time specified in the terms of the agency, when the time is limited, ready,
willing, and able to purchase at the price designated by the principal. Respondent complied
with these conditions, and is entitled to the commission.
After finding that the agreement between Wiechmann and respondent, for the payment of
the real estate commission was in accordance with the above stated general rule, the court
also found in Finding No. 5 that respondent had notified Stoker of the production of such
buyer prior to the sale of the real property to Mr. and Mrs. Flowers by a third party.
Appellants contend that the portion of such finding, relating to notice, is not supported by the
evidence. With this contention we are unable to agree. The record shows that respondent's
agent Bowers showed the real property to Mrs.
agent Bowers showed the real property to Mrs. Flowers on June 21, 1957. It also
affirmatively establishes that neither Nesbitt nor Dennis met either Mr. or Mrs. Flowers prior
to June 23, and that the purchasers did not make a down payment until the following day
when the deposit receipt was delivered by Nesbitt to Stoker. Respondent Hale testified that,
on the same day upon which his salesman Bowers conducted Mrs. Flowers through the
premises, respondent telephoned Stoker and discussed with him certain changes relating to
color of paint and a lighting fixture proposed by Mrs. Flowers. Although Stoker denied
recollection of such conversation, the trial court accepted respondent's testimony as being
correct on this point. The findings referred to are each supported by substantial evidence and
will not be disturbed upon this appeal.
Judgment affirmed, with costs to respondent.
____________
WHITE PINE POWER DISTRICT NO. 9, a Municipal Corporation, Appellant, v. PUBLIC
SERVICE COMMISSION OF NEVADA, and its Members, J. G. ALLARD, NOEL A.
CLARK, and RICHARD G. CAMPBELL, WELLS POWER COMPANY, a Corporation,
WELLS RURAL ELECTRIC COMPANY, a Corporation, ROBERT
R. WRIGHT, a Subscriber for Electric Power Proposed to be Served by the Wells Rural
Electric Company, CHARLES C. READ, a User of Electric Power Served
by Wells Power Company, Said ROBERT R. WRIGHT and CHARLES C. READ
Being Made Defendants for Themselves and All Other Persons Similarly
Situated, Respondents.
No. 4306
December 29, 1960 358 P.2d 118
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Action by municipal power district to enjoin electric power company from selling its
assets to another electric company and for other relief. The lower court rendered judgment for
defendants and plaintiff appealed. The Supreme Court, McNamee, C. J., held that where
municipal power district suing to enjoin power company from selling its assets to another
electric company had neither been granted certificate of public convenience and necessity nor
had it been granted franchise to serve customers within the area involved, power district was
not a party in interest entitled to maintain action.
Affirmed.
(Petition for rehearing denied February 24, 1961.)
Robert R. Gill, of Ely, Nevada, and Elias Hansen, of Salt Lake City, Utah, for Appellant.
Roger D. Foley, Attorney General, for Respondent Public Service Commission of Nevada
and its members.
Orville R. Wilson, of Elko, for Respondent Wells Power Company.
Vaughan & Hull, of Elko, for Respondents Wells Rural Electric Company, Robert R.
Wright and Charles C. Read.
1. Injunction.
Where municipal power district suing to enjoin power company from selling its assets to another electric
company had neither been granted certificate of public convenience and necessity nor franchise to serve
customers within the area involved, it could not sustain irreparable injury by sale and it was not a party in
interest entitled to maintain action. NRS 312.010 et seq., 312.040, 704.330 and subd. 1, 704.340.
2. Electricity.
A municipal power district is not a municipality within meaning of statutory provision exempting
municipalities from requirement of obtaining certificates of public convenience and necessity and
municipal power districts are subject to statute requiring such certificates. NRS 312.010 et seq.,
312.040, 704.330 and subd. 1, 704.340.
OPINION
This is an action by appellant to enjoin respondent Wells Power Company from selling its
assets to respondent Wells Rural Electric Company. The complaint further seeks to have the
court declare null and void the approval by the respondent Public Service Commission of
such sale. The motion of respondents to dismiss the action was granted upon the ground that
the complaint failed to state a claim against respondents in that no facts were alleged which
would show that appellant was a party in interest. Appeal is from the order of dismissal.
[Headnote 1]
This court heretofore denied appellant's motion herein for an injunction during the
pendency of this appeal. White Pine Power District v. Public Serv. Comm., 76 Nev. 263, 352
P.2d 256. In that opinion we said:
It has not been pointed out in appellant's points and authorities on this motion nor in its
oral argument any irreparable injury which it might suffer through our failure to grant said
motion. In fact, how appellant could suffer an irreparable injury during the pendency of the
appeal would be difficult to understand in light of the admitted facts that appellant has
not been granted a certificate of public convenience and necessity by the Public Service
Nevada or the County of Elko, State of Nevada, or the City of Wells, County of Elko, State
of Nevada, to serve any of the residents or inhabitants of that area of Nevada included
within the existing franchise of the Wells Power Company or the certificate of public
convenience and necessity heretofore issued to Wells Power Company and under which
said company is now operating."
of the appeal would be difficult to understand in light of the admitted facts that appellant has
not been granted a certificate of public convenience and necessity by the Public Service
Nevada or the County of Elko, State of Nevada, or the City of Wells, County of Elko, State of
Nevada, to serve any of the residents or inhabitants of that area of Nevada included within the
existing franchise of the Wells Power Company or the certificate of public convenience and
necessity heretofore issued to Wells Power Company and under which said company is now
operating.
The same reasons for denying an injunction pending this hearing on the merits of the
appeal exist for denying the relief prayed for in the complaint.
Appellant argues however that inasmuch as the appellant, White Pine Power District, is a
municipal power district organized pursuant to NRS 312, it needs no certificate of public
convenience as required by subsection 1 of NRS 704.330.
1

[Headnote 2]
Only municipalities constructing, leasing, operating, or maintaining any public utility are
exempt from the provisions of NRS 704.330. NRS 704.340. A municipal power district is not
a municipality. NRS 312.040. The case of State v. Lincoln County Power District, 60 Nev.
401, 111 P.2d 528, does not hold otherwise. It decided only the proposition that the property
of a municipal power district was exempt from taxation. We therefore conclude that
municipal power districts are subject to the provisions of NRS 704.330.
Not having been granted a certificate from the Public Service Commission of Nevada that
the present or future public convenience or necessity requires or will require its operation
within the existing franchise of the respondent Wells Power Company, appellant White
Pine Power District is not a party with an interest entitling it to maintain this action.
____________________

1
Subsection 1 of NRS 704.330: Every public utility owning, controlling, operating or maintaining or having
any contemplation of owning, controlling or operating any public utility shall, before beginning such operation
or continuing operations or construction of any line, plant or system or any extension of a line, plant or system
within this state, obtain from the commission a certificate that the present or future public convenience or
necessity requires or will require such continued operation or commencement of operations or construction.
public convenience or necessity requires or will require its operation within the existing
franchise of the respondent Wells Power Company, appellant White Pine Power District is
not a party with an interest entitling it to maintain this action.
Affirmed.
Pike, J., and Bowen, District Judge, concur.
Badt, J., being disqualified, the Governor designated Honorable Grant L. Bowen, Judge of
the Second Judicial District, to sit in his stead.
____________

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