ZEIGLER y, MOORE, Nev. 425 game, mainly the pheasants, may be pre ented from destroying thelr grain erops Ite eid that these to groups oulmesiber the appellants who wont the area closed fo hunting. Respondents did not see ft to refute any fof the testimony referred to but restricted theie defense to « showing (1) thet other home owners in the area desiced to keep it ‘open fo hunting and (2) thatthe state game amaiisioners, the coxmty game board and the county commirsioners tad held open mectings in the matter, and that their of dere were not arbitrary. For the purposes ofthis opinion, therefore, the testimony ad fced by appellants may be accepted a A decision between the desies and needs ofthese opposing groupe requires legisla= tive and. ot a judicial determination, Tudgment of the county commissioners in ‘ie sphere isnot reviewable by the courts (4) Abuse of the bunting privilege and Giscezard of trespassing laws pose a Innistrative prebleme of licensing an lar foforcement. Tt ie emnion knowledge tat violations of the game laws (8 shot fier sunset, an unpunthed deer fag, ae Of shoegun capable of holding move than three shell, ar well ag the more agreat Violations) are vigorously prosecuted, This it'as ie should be. But preoccupation with this area of social offense, or even with the area of game conservation, ino jut Scation for disregard of the fact that ap DPropriate icensing. procedures and strict Tag enforcemant have become necersary fot the protatton of tke publi The excellent and faithful work of the Administrative ofcers and personnel of the fh and game commissioners i well know to the citizens of the sate, who are copni= fant of the vast store of knowledge of wildlife porseseed, a the high degice of Skil exercised by them in the protection, Propagation snd. preservation af une This must include, of course, the proper harvesting of gute cfope and the Bolane ing of flocks and herds with available fee forage and cover, and the research and field investigations involved. ‘There should ‘be noted also the coustat admonitions of the game commission against hunting on private property withoat the consent of the owner. Tt de generally recognized too that our wild fe, thus preserved, is one of our great resources, affording recreation and the exercise of hunting and ostdcor skills to a large proportion of our citizens, at well es attracting thowsands of visitors ‘wally. All this but empbasies the ne~ cestity for protection aghast such dep- redatons as have been suffered by these Appellants, ‘With sympathetic appreciation ofthe ma- tore of appellate! problem, we mst refer them for remedy tothe appropriate legisla tive and administrative authorities, or to the appropriate organt of public fngury, Affirmed MERRILL, C. J, and MeNAMEE, J,, G== Soprene Court af Nevada, ‘Action for damages sustained in an stomobile cellsion wherein the defendant died prior to tial. From an onder and jaigment of involuntary dismissal, in the Second. Jatical District Court, Washoe County, A, J. Mscatett, Jy the plait appeals. The Supreme Court, Bodh, hold that excloding testimony of sheriff 5 to statements made to him by the de- fedent as to how the accident happened was reversible error: that plait? testi spony as to medical bile and suffering=] 426 Xow 905 PAGIFIO REPORTER, 24 SERIES which the decedent could not have cone that the accident had occur Uradietd of his own knowledge were ad. negligence where at the time of the offer isi. notwithstanding the dead men’s there bad been no evidence that the car atte; and that such statute didnot of the defendant had struck the plintif's Dreciude the pleintf's description of her car in the rear as claimed, NRS. 48010, wn actions and road conditions prior to subd. 1(6, b), 48030, subd. 3. the point of collton when the decedent | ould have contradicted the plsinsfs tes: I fimony of his own knowledge Reversed and remanded for a new 1% Witreses €=128 "The dead man's statute aplles to ac- tions ex delieto and such actions are em= ced within the statutory use ofthe word ransections” within the state, NES. | 48010, subd. 1(a, Dy, 48030, sadd. 3 . 1. Appest an Error C1085) ‘Whece plait woved for an order I for production of documents taken by an Insurance. adjestes, denial of the motion 6 Witnesses @=125 i seer aeleticl where correst copies The whole object of the dead man’s! wee nna! stmement were produced statute i to place the living and dead on fh open court and read into the record terms of perfect equality, and the dead not aoe eee irae the rocord on appeal. being ble to testify, the living shall et Rules of Civil Procedure, rule 3. NARS. 48010 subd (a,b), 48090, sue 3. 2. witnsees e120) 7 witnesses 9108 were y cxchion of testimony ef In action for damages sustained in ie ee teed mune natste setomebile collision, where the defendant ; rected prior otra Sed mas tte woud eens apply te sncrened thc pre ed ir co ren | soe re Te Un aabso, not rele the lit’ desion of ' ia 8 fer Sn acion si fon conor prot to he callin when wn the ttons Of ne or space the decedent could hate s Contracted her testimony of Bl own sutmobie ction where dstennt el Toned, NBS. #8010, 4 1 Dy mony of sheriff that defendant after the ee MeElat fas made a fepore and in is &, Wisesss e=t08 2, witnseos €159(2) "in aeson for damages sustained in an ESvermton in making the report taked Inaction for damages in an automo- SNe Shenu nboct how the aevidene hap- bile collision, where defendant died pre ‘Pag, Sliding testonoay of sheriff in an~ tO tial pluinifs testimony as to Ber Bir is question "What cid he tll you?” medical bls, puin and suffering and met Tamas crane dead man’s atte was.cr- tersaf like netore which the decedent could for, HRS, 43010, subd. 1(4, 6), fot hove contradicted of hie own kno! \ ube. 3 fie were not exeldable under the dead fan's statute, and the rejeeuon of such festimony wee prejudicial er NIRS. tees 1800) ‘5010, se. TC, 8), 4800, sub ar eeeeal Cocoa eee! lt cee automobile calisiony exclading testimony 9, Witeeaer €2108 4. Appeal and Error C1086) seigherit as to what defendant told him The lines delimiting the actual “trans | j Shout the asclient ander the dead man action” within the dead man’s statute wit i ‘Maat mere the defendant died before trial in the Knowledge of the decedent must De SES rehusleal evor notwithstanding ean raven By the Wl court, and whether the TERTREN stinony would establish only Ties are drawa svithin the limite of pateor time within which the matters were uz der observation of the decedent or both must be likewise determined by che trial Cour NIRS, 48.010, subd, (a, 8), 48030, bd. 3 Tn action for damages custained in an astomobile collision, where defendant isd price to drial and the collision cc Curved ia a desert without witnesses other then the patties, application of the dead Inaris satate wae sot precded on the Ground that the effect thereof would be fo destroy the staste providing for sur vival of tore actions against the estate of Ziecedent. NARS. 49010, eodd. 1(2, 9) 48.050, subd. 3. 1H, Consitatlonal Law €=70) “Phat tie application of the dead mas statute in a. particular instance results in harsh and unjust revuts is @ matter of public pliey and a matize Tor considerae tion by the Legislatare rather than the A.D. Jensen, Reno, for appellat, Goldwater, Taber & HW, Reno, for re spondest. BADT, Justice “This appeal ie taken from an order and jadgment of involutary damien! emered fon defendants motion under Role 4100) NRCP at the conelation of plaints ease Plaintiff aed one Al Chest for damages aileging that er avtomobile wes struck in the rear by 8 car negligently operated by Christ in August 1958 on Highway 40 thout one and one-half miler wert of Winnemces, while plintft eat driving casteriy towed that ity. Chest answered, Aenying negligence but admitting a colle sion between the two care Ele also plead fd plaintiff's contributory negligence {Christ died in May 1987 and Robert Moore sves substituted a8 his administrator before ial At the tial the court excluded wider She dead mats cule certain testimony of -BIGLER v. MOORE Wer 497 ‘he plant and of plants witness cher i Delbert Moore, These and other ral> ings are assigned as error. [1]. (2) An insurance adjuster had tak en statements from both plaintiff and the 4 longhand by the adjaster and signed by the parties, Plaintiff moved under Rule {34 for an arder for the production of these ‘documents 20 that the same might be i fected and copied, nd azsigne error and Drejadice ia the denial of such moton ‘The record shows, however, that = true sod correct copy ofthe original statements {aken was produced in open court and ‘ead nto the record and is acsualy a pa fof the record on this appeal. TF a dis: covery of the nature ard contents of the tion of plaints case copes of the sate~ mente were before her, Te is #0 evident that plaintif’ war in no way prejdiced by the denial of her motion that discussion of the error asigned is unnecessary (Gt should be noted that plsntff bad ‘een permitted to read the copies of the fatements into the record for te parpose Stmking an offer of proof, She then tifered the copy of fer own statement in tvidenee. An objection was sustained on the ground that if her direct testimony was inadmissible under the dead mat's rele her extrajudiiat statement was,» fortor, inadmissible, Piainsil then offered the copy of the statement made by the deced- at but immediately withdrew the offer. Ail of thie was withowt the presence of the jury, Te may be noted also that no ob jection wae made to cither statement on the ground that t was a copy.) () Detbert Moore, shevit of Humboldt County, testified hat Christ, after the ae cident, ad come to the ofce and made fan accident report” and, in his conversa tion in making, te report, talked 1 the twtness “abot how the accident Rappened.” He was then asked: "What dhe tell you?” Objection on the pround "that this of § 8010 NRS" was sustained.428 Nev. 805 PAGIFIO REPORTER, 24 SERIES ‘The statute commonly Known as the ead man’s role now appear, in pertinent pert, in our coles as NRS 48010 and 48040, as follows "48.010 1. All persons, withoat ex- ception, otherwise than as specifed in this chapter, who, having organs of feose, can perceive, and perceiving fan make known their perepsons to ‘others, muy be witnestes in ang action tr proceeding in any court of the state Fucts which, by te common law, ‘would cause the exclusion of witnesses, ‘ay stil be shown for che purpose of fffeting their credbiity. No per fon shall be allowed to testify WG) When the other party to the transaction i dead "(o) When the opposite party to the action, * #.* is the representative ff a deceased person, when the facis fo be proven transpired before the death of ech deceased persons 148.080 The follwing persons ean ot be wieneases: against an exeestor or adainisrator Upon claim or demand against the fstate of a deceared person as € any Inatier of fact oezureing before the fleath of such deceased person ‘Phe present statute as thos quoted ie it present form alter having been subjected {ova sumber of amendments, all of which sodifed the common-law ule disqualifying 5 witnesses all persons intrested in the tvent of the action, generally recognized to mean thatthe witness would either gain tr love by direct legal operation or effect Of che jadgment, Te should be noted that fuck rule was one of isquaifeation of esses and did not eelate to the vite [2.8] The essor assigned in sustaining tne objection to the testimony of sheriff Dothert Moore ag #9 statements made to bien by te decedent i ell taken. ‘The Stimeases mnder the sections above quoted thas bean consistent held by this court not to apply to disinterested. third persons Burgess ¥. Helm, 2¢ Nev. 242, 51 P. 1025; In re Kimbe's Estate (Kimble v. First National Bank), 73 Nev. 25, 07 P24 6135, Onesti v. Samovile, 48 Nev. 441, 233 P. £46; Su Lee vs Peck, 49 New. 124, 240, , 495) Bright y. Virginia & Gold Hill Water Co, 9 Cir, 270 F. 410. [4] Respondent contends that even 1 the order excluding Delbert Moore's tes- timony was error, it could ast possibly have prejudiced appllane, was harmless frror and not ground for revers. Ree pondent bases this contention pon the lier of proot that followed the court's Faling, namely, tht the sheri® would testily that Christ sold im shortly after the scci= dene "that he, Christ, it the plaints ear Inthe rear end and thats the end of the ‘er of proof, your Honor.” Respondeat Contends that such testimony would extab- Tish the mere fact chat an accident had fccurred withowt any inference of negli- fence, At this paint, however, there Bad Treen no evidence ithe cage thst Cariee car had strc appelis’s car ia the sea. not neceesarily establish “negligence "on Christ's part, here can he no doubt that it would constinge a part of sich proot The exeusion of the evidence was Utere- fore prejudicial, New teal must be or- dered (Appellant assigns as error the courts rullag preshiding. appellant. from testifying as fo aey fact prior to Cheia’s feath, The postion taken by the respec tive patties fr somewhat confusing. Re pendent, in suogort of the cours rling, Fecttes the way the ieue arose as follows at the ta) appellant war called a3 3 witness inher own belalf to testy to The facts of the accident” and says thet the question presented is “whether the uncontradicted testimony at 40 the mover fin which the collron occurred when the atte” However, respondent's objection ts mace in the rial couse and the ringZEIGLER y. MOORE Nev. 429 which the eral court eas prevailed on 20 sake by resson of euth objection were far broader than the enunciation of the proper rule sought from this court and 8 expressed in italic above, Plsintif took the stand and was asked, “Will you please state your name?” Objection was made that the pleiatitf “ie rendered incompetent [to testify) under the socalled Nevada lead man's etatute” ‘Thereupon the Jury was excused and over thirty pages of the trancript are devoted to argument where pon the ebjecion was sustained. There tapon the following took place ‘Mr. Jensen: Now, just so T anderstand the courts ruling, * * * chat means ‘hat under the court's ruling that plain? cannot testify as to any fact prior to May 11th, 1957, May 11th being the dati of the desedent? Right? “nc, Taber: Wel, that is the basis of my objection, ye. “The Courts Yew Me. Jensen: So then any fact that oc: ceureed peor #9 May 11,1957, that relates to the medical bile sustained, and renter 12 say other facts related to the accident? offered ‘Me, Jensen: Yes, So the ruling would “The Court: Yea" Appellant then proceded to make an offer of proof including her age, place of em: Plojment, rate of employment, mature and houre of employment, her lesving of her place of empleyien, the roste pursed by her the mature ofthe road, visibility, trafic the striking of her car feom behind, et oufneinet ia the hospital, her doctor bill, ‘the amount of her lost wages and her pin and suffering. She also ofered to testify that, pre: somably at the lime shen defendant sas Close enough behind her lo have observed the matters tested to and. could have contradicted the sume of his own know! fe, “at no time prior to the time of crllsion aid. she caer the brakes 9 be fpplied in a sudden manner, nor did she indicate thet she was going to make either a left or a right tin" * "that her car was suddenly end without warning hit from the rea” ‘The offer of proof was objected t in its tirety and was denied in its enticty Agplls now contends a8 follows: “She is not attempting to tefy that the de sedentacar was diven ino rece ah ter. She isnot y any dive statement 0 lterees attenpng to x blame ofa fach faule to any person. Stating fe suc lnctly, she meray desires to teify that $e was driving down the highway fa te sroper lone, at x sped racemic under the circumstances and that thereafter het cat was srk fa the reat” 1 wll hes be sta tht onthe one hand sespondet sbisined sa exchsinary rag {ar broader than the oa he now veeha sustain; and en th other iad appellnt Sought, by her offer of prot, to tay in far wider spe than she now tlem ad ine {5-8} Appetont insists frst in this re- spect that she Is not precded from tes iping wrder NBS 4801001) (a) because the decedent camiot be said to be the other party to the transseton” inasmuch 25 no “transaction” was involved; that & tort tion isnot a transaction, There is indeed some authority 0 swpport thie view: See Sheneybrook v. Bliazar, 1956, 209 Ma, 304,121 A24 218. Tn many eases this is based vpon the wording of the particular state state involved and is of no as- Sistince here. The Maryland case jute sited, for example, expresses a preference for the New York rale. The New York statute, Civil Practise Act, § 3:7, however, defnitely sed the exclusion at apulying to testimony conestning a "pecronal trans: ction oF communication” with the dece- Gent. The overwhelming weight of au. Wherity supports the rule that the dead taaa's statute epplies to actions ex slicto snd that such aetions sre embraced within the statutory use of the word. “transac tions” 97 CJS. Witnesses § 153, note 92, 565; 58 Amur. 151, Witnsee, § 223,430 New. 805 PACIFIO REPORTER, 24 SERIES In Warren v. Delong, 59 Nev. 481, 97 P.24 792, 795, this court bad ander consid ration our statute providing that 3 the defendant omit to. eet up @ counterclaim arising “out of the trantscion” be could hot afterward maintain an acon against the plait therefor. NCL, § 8803, 604, ‘This court there held that the term “transaction” was Broader than “contrat” and broader than “ort” and that it might Snclude either or oth. Te approved the elting up of a eounterelai for conversion tender sush tate, TE then we apply the statute to tort ac. tions as well ar personal transactions be- tween the parties the testimony of the plaintiff was properly excluded under the holdings ofthis coure im earlier cases, de fining the purpose and extent of the le ‘with referenes to those matters which the ecedent could have contradicted of his own knowledge, By the sue token, the ap- pellan’s testimony a8 to her medical bil, her pain and suffering and matters of lke ature which the decedent gould not have Contradicted of his own knowledge, wat leary admissible andthe relection 9 such festinoay was prejudiia error. ‘Those items were entirely beyond the operetion of the reasons for the rule of fxelasion repeatedly cneneiated. by this Court: To prevent the Being from obtain Ing unfaie advantage Beeauso of death of the other. Maitia ¥. Allied Land & Live Stock Co, 49 Nev. 51, 248 P. 898, Nor Shall the living be eatled to the undue svantage of giving his own uncontradicted find unexplained aecount of what trans pired beyond possibility of contradiction by {he decedent, Reinhart ».Eehave, 43 Nes. 1523, 185 P. 1070, cehearing denied #3 New 523, 187 B. 1006. ‘The whole object o the’ code provision Is to place the Living fn doa gn tesa of perfect equality, and {he dead not being eble to testify, the Tv ing shall not. Bright v. Virgivia & Gold FHI Water Co, 9.Cir, 270 F, #10, ‘The abject of the statute Se t prevent one in terested parly from giving testimony when the other part's lips are sealed by death, (Gotdeworthy vs otnson, 45 Nev. 355, 204 1, 505, But when the above stated reax fons for the rule do not appear, this court has not heated to adit testimony of an interested party. Golds- ‘worthy v, Johnson, supra; Maiti v. Alte Land & Live Stock Co, supra; Hough vy. Reserve Gold Mining Co, $5 Nev. 578, 35 P20 742; Edmonds v. Perry, 62 New. 4, 140 P2466, ‘Therefore the rule would not preclade plait deeriotion of her town actions and the road conditions prior fo the point when within limitations of time or space the decedent could have coo fradicted her tertinony of his own know! edge [8] The lines delimiting the setal sransaction” within the knowledge of the decedent mst be drawn by the tal court, ‘Whether thee fines are drawn within limite ff space or within nite of time within Svhich matters were under the observation (of the decedent, or both, must Iewise be Aetermined by the trial cour. [20,11] (@) Finally it 42 contended by sppellne that the effect of our state providing for the survival of tort actions 0) is entirely destroyed by aprication of the dead man's rule im carer such as the present one where the callsion occurs i the desert without witnesses other thao the partie, ‘This ie not necessarily fo. Te steal all eases much physical evidence J svailnble—eidd masks, Ure tracks, the condition of the respective ears involved showing the nature of the eallsion, et Appellant further contends tht inaemech te the application of the dead snan's rule 's condemod By all writers of the law of fidence at leading 10. harsh and unjust Fesults (see Wright v. Wilton, 3 Cir, 154 F.24 616,70 ALR, 1237) ehiscoure should {his state, extend its application to to sctions This, however, 8 matter of pul Tie poly, in which ave balanced agsinst, tach other the chance of injurice i in Gividual cases on the one Hand and the protection of eetates from fraudulent de+ Fronds on the other. A change of pokey Irving such farerenching results should bek anretons», xanzsrown xe at | en aa | {matter for consideration by the legila- after fling of her appes, and almost si ture rather than of the court. Miller ¥. months aftr expiration of any juadistion E Du Bots, 1957, 153 Cal.App.2d 310, 314 in the tial court to extend her time, aed P24 27 (hearing denied), to specie oral stipulation was made be: Reversed and remanded for new trial, tween countel forthe partis foram exten \ sion of time, under auch circumstances, MERRILL, C. J, agd MeNAMEE, J, showing of appellant would be deumed i concur, sufcient to constitute excusable. neglees and her motion for extension of time to fle {ie record would be dei Sd respond. a’ matin to diss the appeal would Be ranted RK, Wittenberg, Reno, for appetiant. Irene M. HARTSTONE, Appotant, Adams, Reed & Bowen, Joha P. Thatch- \ “ 1; Reno, for respondent ‘George 0. HARTSTONE, Respondent, : Novato. PER CURIAM, eprom Court of Nevada Respondent docked the above appeal fa ek a 200. order to interpose his motion to dfoniss Rule 756), NRCP. “Appt has fed hes ppostion to the motion, together with her Divorce action. The Second Jus Stereos tor ae et ee J} sie Cours Washoe. County, Depart this witht fe Re mene op f] mene No entered jdgmentunstinfe- From Ue oscie of toe eae tory to wife and she append. ‘The hus- pile the lllerne cheoroin ete Sar docked the ape order to intr, TH" D0 won conn of events i pose his motion to demiss, and wife let i i ‘opposition to the motion, together with a fd in favor of respondent ‘countermetion for an extension of time May 19, 1958, notice of appeal fied / Within which to file the record on appeal. June 28, 1958, last day under Re ‘The Supreme Court field that where sppek _73(g) to docket the appeal aed fle the i fan's motion to extend her tie was mide record on appeal in this cour ‘almost nine months after Bling of her ap- June 28, 1958, last day ender Rone Peal and almost six mosths after expiration 75(g} on which thedatict cout mighe of any jariiction in the trial court to ex have extended the time for ine he fend hee tne, and no specie oral siplae ecard and doceting she sgoent son was made between counsel forthe Pat~ —Avguat 1, 1958, st doy oer Role H ties for anvextension of time, nd transrigt tinder such circumstances, showing of wife ould be deemed insuficien Yo constitute es 5 suck docketing and Bling. excusable neglect, ad het motion for ex: ecuary 28, 199% recondent's mo ti fension of time t0 fe she record wowld be, JAWHY 28 1859, cesponde ' ida to dss fled doe nd cetpndeny tient doitg 2 0 GH suns mn 73(g) to whieh the district court could fn any event have extended time for eee tion t extend time for fling seeord on appeal fled. 1 wil hes be en that apptan’s ‘Anpentané Error o=sa4-e27e) Mion extend her time i ade ine oe t Where appstanes motion to extend lee eight days alter the Bing of hes an | her tne was made almost nine months peal, six months fess eight divs afer tee 4