nevada reports 1955 (71 nev.).pdf

71 Nev. 1, 1 (1955)

REPORTS OF CASES

DETERMINED BY

THE SUPREME COURT

OF THE STATE OF NEVADA

____________

VOLUME 71

____________

��71 Nev. 1, 1 (1955) Truck Ins. Exch. v. Whitaker��

TRUCK INSURANCE EXCHANGE, a corporation, Appellant, v. WALTER W.

WHITAKER and ROBERT E. MUSGRAVE, Copartners, Doing Business as Valley

Livestock Transportation, Respondents.

No. 3792

January 5, 1955. 278 P.2d 277.

Appeal from the Second Judicial District Court, Washoe County; A.J. Maestretti, Judge,

Department No. 2.

Action by partnership to recover compensation for motor vehicle upset. From a judgment

for plaintiffs, defendant appealed. The Supreme Court, Merrill, C.J., held that evidence

supported finding that oral contract of insurance provided collision coverage for those

partnership trucks which were not ordinarily used in revenue business and which were not

covered for collision in ��


written policy, such contract to apply when such trucks were used in revenue business.

Judgment affirmed.

(Rehearing denied January 28, 1955.)

Goldwater and Hill, of Reno, for Appellant.

Stewart and Horton, of Reno, for Respondents.

1. Insurance. An insurance contract need not be in writing in order to be valid.

2. Insurance. In action by partnership to recover insurance for collision damage to partnership truck, evidence

supported finding that there had been an oral contract of insurance which provided collision coverage for

those partnership trucks which were not ordinarily used in revenue business and which were not covered

for collision in written policy, such contract to apply when such trucks were used in revenue business.

3. Insurance. Oral contract of insurance which provided collision coverage for those partnership trucks which were not

ordinarily used in revenue business and which were not covered for collision in written policy, such

contract to apply when such trucks were used in revenue business and that same rates and coverage should

apply, was, with aid of reference to the two policies covering the respective classes of trucks, sufficiently

definite to permit of enforcement.

4. Evidence. Oral contract providing collision coverage for those partnership trucks which were not ordinarily used in

revenue business and which were not covered for collision in written policy, such contract to apply when

such trucks were used in revenue business, was collateral to and independent of the written collision policy

covering the revenue-producing trucks, and parol evidence could be introduced to prove oral contract

without varying terms of the written contract.

5. Appeal And Error. Where truck collision insurer did not deny agent's authority to make oral contract, instruction, which was

given in action upon alleged oral contract, which related to effect of insurer's voluntary acceptance of

premiums and subsequent tender back, but which conditioned consideration of this matter upon finding that

contract existed, was not prejudicial to insurer.

6. Appeal And Error. In action to recover under oral contract of truck collision insurance, instruction that insurers failure to

appraise collision damage was no defense was not prejudicial, even though insurer did not contend that

such fact constituted a defense.


7. Insurance. Truck owners who had collision policy covering only their revenue-producing trucks were not required to

incorporate into the written policy an oral contract of insurance whereunder other trucks should be covered

while on revenue-producing hauls.

8. Insurance; New Trial. Where collision and cargo insurer had withheld from payments due insured an amount equivalent to a

cargo loss previously paid, and counterclaimed for this amount in insured's action to recover collision

damage, jury's award to insured of amount for insurance loss did not require grant of new trial, even though

insured had not claimed recovery for cargo lost, and award would be deemed determination that insurer

should not recover on its counterclaim and that insurer was not entitled to withhold the amount.

OPINION

By the Court, Merrill, C.J.:

This is an action brought by respondents upon an oral contract of insurance to recover

compensation for motor vehicle upset. Judgment of the trial court pursuant to jury verdict,

was in favor of respondents in the sum of $6,500; and this appeal is from that judgment.

Appellant contends that no oral contract of insurance ever existed and this is the principal

question involved upon this appeal.

In 1948 respondent Musgrave operated a cattle auction and sales yard in the city of Fallon.

As a part of his operations he owned a number of trucks used in transporting cattle to and

from the yard in connection with the sales transactions. During this same year respondent

Whitaker was engaged in the business of livestock transportation, in the course of which he

used two large tractor-trailer combinations.

In February 1949, Whitaker purchased a one-half interest in the auction sales yard of

respondent Musgrave and the new partnership assumed the name of Valley Livestock Sales

Yard. While the assets of the sales yard, including its trucks, were taken in ownership by the

new partnership, Whitaker retained sole title ��


to his tractor-trailers which continued in the business of livestock transportation. The two

businesses (livestock sales and livestock transportation) were, however, consolidated and

thereafter operated as a single business enterprise save for bookkeeping segregation.

At the time of the formation of the partnership, all motor vehicles were covered by a

flat-rate insurance policy issued by appellant insurance company for public liability, property

damage, collision, fire and theft. In March 1949 the partners concluded that their motor

vehicle insurance could more economically be had by changing from a flat-rate policy to a

gross-receipts policy under which premiums would be fixed at a rate computed upon the

gross receipts received from the operation of the insured vehicles. Appellant, through its local

agent, Stanley Hyman, prepared such a policy. The vehicles covered, however, included not

only those which hauled for revenue but also those which hauled for the sales yard in the

normal course of its business and thus received no revenue for their hauling. The result was a

rate of insurance which staggered the partners. Agent Hyman was summoned, posthaste, to

accomplish a revision.

In the forepart of April 1949 a conference was held respecting this matter, to which we

shall later refer in more detail. Resulting from this conference two policies of insurance were

issued by appellant company. One covered the vehicles owned by Whitaker which were

engaged in the transportation business. It was a gross-receipts policy and included cargo and

collision coverage as well as public liability, property damage, fire and theft. The policy

covered not only the scheduled vehicles but, as to bodily injury and cargo, any vehicles hired

or used by the insured. The rate for the listed, owned vehicles, with full coverage, was $6.10

per $100 revenue. For hired vehicles with limited coverage, the rate was $2.43 per $100 of

revenue.

The second policy was a flat-rate policy covering the ��


vehicles owned by the partnership and used in the sales yard business. It did not include

collision or cargo insurance.

Among the vehicles owned by the sales yard, covered by its flat-rate policy and not

covered by the Whitaker gross-receipts policy was a Diamond-T tractor and Fruehauf trailer

combination. In October 1949 this combination unit, loaded with hogs sold to a California

meat company, was wrecked while crossing the Sierra enroute to the purchaser. Claims for

cargo and collision loss were filed with appellant. The cargo claim was allowed upon the

apparent theory that the tractor-trailer at the time was being hired or used by Whitaker under

his policy. The collision claim was disallowed; and this action resulted.

Respondents contend that their insurance coverage was not limited to that specified by the

two written policies. They contend that an oral contract was made between themselves and

appellant, through its agent Hyman, whereby any of the sales yard trucks normally not

engaged in revenue hauling, which might engage in such hauling, would, while so hauling, be

insured for cargo and collision upon the same terms and for the same rate as applied to the

Whitaker trucks under the gross-receipts policy. Appellant does not question the authority of

its agent, Hyman, to enter into such a contract. It denies that such an agreement ever was

reached. By its verdict the jury apparently found that the minds of the parties had met upon

such an engagement.

Appellant's first contention is that there is no evidence in the record upon which such a

factual determination could have been based. We feel there is ample evidence. It lies

primarily in the testimony of respondents and their employees as to conversations had with

agent Hyman. These conversations were flatly denied by Hyman. The responsibility of the

jury under these circumstances was clear. It must decide which version of the conversations

was entitled to belief. Clearly it ��


decided in favor of the testimony of respondents and their employees.

Testimony in support of the oral contract divides the conversations into two groups: those

prior to the issuance of the policies in which insurance was discussed and ordered; those after

issuance of the policies in which the existence of the coverage was confirmed. Five witnesses

testified on behalf of respondents. Without specifying the source of the testimony and

paraphrasing it for purposes of clarity, their statements present the following story:

Agent Hyman having been summoned to accomplish a revision of the first gross-receipts

policy, a conference took place in which Musgrave and certain employees participated.

Hyman was advised that, in the interests of economy, the sales yard would eliminate collision

and cargo insurance on its trucks. Since its operations normally were within a limited radius

of Fallon, it was felt that the risk would not be too great. The large trucks owned by

Whitaker, however, engaged as they were in interstate revenue hauling over mountainous

routes, would require full coverage. The result of this discussion was agreement upon the two

policies eventually issued. Hyman was then advised that in occasional emergencies sales yard

trucks would be drafted into revenue-transportation service, and that these, therefore, should

also be covered for cargo and collision. Hyman advised that these could not be included in

the gross-receipts policy with full-time cargo and collision coverage without increasing the

minimum premium or premium rate. He stated, however, that appellant, without increase of

premium, would give them cargo and collision coverage limited in time to the periods when

they were actually engaged in revenue hauling. All that would be necessary to accomplish

such coverage would be to report their receipts for such trips and pay premium thereon in the

same manner and at the same time that receipts were reported and premiums paid under ��


the policy set up for the units regularly engaged in revenue hauling.

After issuance of the policies Hyman conferred with Mrs. Childers, respondents' office

secretary and bookkeeper. He confirmed to her that unlisted sales yard trucks were covered

for cargo and collision loss on their revenue hauls, provided the receipts of such hauls were

reported and premiums thereon paid. He instructed her as to the manner of reporting revenue

and paying premiums. She was advised to report this revenue on the form provided by the

insurance company for the gross-receipts policy under the column headed “Total Receipts

From Hired Trucks,” and to pay thereon the rate of $6.10 per $100 of revenue. Mrs. Childers

pointed out to Hyman that under this insurance arrangement the trucks with part-time

coverage would be paying double premium on public liability, property damage, fire and

theft, since the $6.10 rate on the gross-receipts policy included such coverage and the trucks

already were covered for such risks under their flat-rate policy. She protested that this was

unfair. Hyman advised her that this was, however, the only method he could suggest for

securing the additional limited coverage and that it would still be cheaper than full-time cargo

or collision coverage, either under a flat-rate or gross-receipts premium. Mrs. Childers

thereafter reported revenue under the hired trucks column at the $6.10 rate for various

unlisted trucks, although (since the report form did not call for specification) the trucks were

not individually specified.

Following the accident, Hyman confirmed to respondents and certain employees that the

truck involved was covered. In this respect he took issue with appellant's adjuster who visited

the sales yard with him. The adjuster pointed out that Mrs. Childers had been paying the

$6.10 rate on revenue reported in the hired trucks column, rather than the reduced rate

provided by the policy. Hyman asserted that Mrs. Childers had been ��


paying the proper rate. (Documentary evidence establishes that in February 1950, four months

after the accident, appellant by check tendered a refund on premiums paid on “hired trucks”

at the $6.10 rate, noting that the lesser premium was applicable. This check was never cashed

by respondents.)

When appellant failed to make compensation, Hyman gave repeated assurance that it

would be made. He stated that he would make a trip to confer with company officials and

explain the matter in detail since these matters were hard to explain by letter. He later stated

that he had made the trip and that the company had agreed to make compensation. Still later

he advised that the company had changed its mind.

All of this testimony we must assume the jury found credible and entitled to belief.

[Headnote 1]

Appellant draws our attention to many factors, in addition to Hyman's flat denial,

reflecting upon the credibility of this story. It is emphasized as unreasonable to the point of

incredibility that respondents could have imagined themselves covered by an oral contract

when two written policies had been issued, neither of which included such coverage.

Respondents and their witnesses, however, admitted and demonstrated a lack of knowledge

of insurance matters and a reliance upon Hyman in all such respects. While it undoubtedly is

common business practice to reduce contracts of insurance to writing, it does not follow that

they must be in writing in order to be valid. For us, in the face of the jury's determination, to

convert the fact of common business practice into a principle of law, would be to expand our

statute of frauds by judicial legislation. All factors upon which appellant relies, reflecting

upon the credibility of respondents' story, are matters which we must assume were duly taken

into consideration by the jury in its search for the factual truth.


[Headnote 2]

We conclude that there is ample support for the jury's determination that an oral contract

of insurance existed as contended by respondents.

[Headnote 3]

Appellant contends that the oral contract as established by testimony, was so uncertain and

incomplete as to render it unenforceable. No such details as liability limits or values of

property covered were specified. None of the many, carefully worded conditions normally set

forth in written policies is mentioned. The testimony was, however, to the effect that the

conditions and rates provided in the gross-receipts policy would control as to sales yard

trucks; that when coverage should apply, the conditions of coverage would be the same as for

the units regularly engaged in revenue hauling. As to details of the unlisted vehicles so

covered, they were within the knowledge of the company through the flat-rate policy. With

the aid of reference to the two written policies, which reference the oral contract clearly

contemplated, that contract was sufficiently definite to permit of enforcement.

Appellant next contends that the oral contract varies and contradicts the terms of the

gross-receipts policy and thus violates the parol evidence rule. It is pointed out that the

gross-receipts policy expressly limits its collision coverage to the trucks listed in the policy;

that it expressly provides that it embodies all agreements between the parties “relating to this

insurance.” It is argued that to give to unlisted trucks the coverage provided by the written

policy contrary to the expressed limitations of that policy, varies and contradicts its terms and

provisions by parol. Respondents contend that the oral contract was a separate agreement,

independent of and collateral to, the written policy; that the parol evidence rule thus does not

apply.

The question is as to the extent to which the parties ��


intended the written policy to constitute an integration of their engagements upon the general

subject of insurance. In 9 Wigmore on Evidence (3d edition) 8, sec. 2401, the question is

stated as follows: “whether a particular document is the one deemed by law to be the sole

memorial of the act, or how far a particular document was intended by the parties to cover

certain subjects of transaction between them and therefore to deprive of legal effect all their

other utterances.” If the subject of the oral contract is different from that of the policy, it can

hardly be said to vary or contradict the terms of the policy; it can hardly be contended that the

policy constitutes an integration of the terms of the oral contract.

It is to be noted that the coverage provided by the oral contract is not the kind of coverage

provided by the written policy; that the written policy could not, without material change,

have provided the desired coverage. Indeed, it was to escape the high premium rate which

inclusion in the written policy would have caused that resort to an independent contract was

had. What was required was not the full-time coverage provided by the policy but was limited

coverage in the nature of trip insurance.

The test proposed by Professor Wigmore to determine between complete and partial

integration is “whether or not the particular element of the alleged extrinsic negotiation is

dealt with at all in the writing.” 9 Wigmore, supra, 98, sec. 2430. Clearly it was not in the

case before us. Under this test, then, it cannot be said that the parties intended the written

policy to cover the subject of the oral contract. The policy was but a partial integration and

the parol evidence rule would not apply.

Upon this fundamental question of identity of subject matter, a stricter and perhaps more

practical test than Professor Wigmore's, is advocated by some authorities. This test does not

limit the inquiry to the question whether there has been an expression in writing upon the

particular element involved. It requires the further ��


inquiry whether, if there had been an agreement as alleged, the parties would normally have

incorporated it in the writing. Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646, 68 A.L.R. 239;

See: 3 Williston on Contracts (Rev. Ed.) 1833, sec. 638; Ann. 70 A.L.R. 752, 759. For

purposes of determining identity of subject matter, the controlling factor is thus expanded

from Professor Wigmore's “particular element” to include all elements which the parties

reasonably might have been expected to include.

[Headnote 4]

We need not decide between these authorities as to the proper test for partial integration or

collateral agreement. Even under the stricter rule, the oral contract in this case must be held to

be collateral and independent.

The limited scope of the inquiry may well be emphasized. It is not whether the parties

would normally have incorporated the collateral agreement in a writing (which question fell

within the jury's area of determination as we have already discussed) but in the writing into

which they actually entered.

The general subject of all negotiations between the parties was the insurance of

respondents' motor vehicles. All engagements of appellant related to this general subject. In

many respects, however, those engagements differed in character, depending upon such

factors as truck ownership and identity of the insured, trucks and risks covered and type of

premium involved. It may well be that, regardless of such differences, the expression of all

such engagements could have been included in one comprehensive document. The undisputed

fact is that this was not done. There was not a single, complete integration. There were at

least two separate agreements. Appellant must itself concede that the subjects of the two

policies were regarded as so unrelated as to make a combination of the two inappropriate.

It may well be that, regardless of differences in ownership, coverage and premium, the

subject of the oral contract could have been combined with that of either ��


of the two policies through an enlarging of the particular subject of that policy. We are wholly

unable to say, however, that under the circumstances of this case, this is what the parties

might have been expected to do. A consideration of matters of ownership, coverage and

premium, demonstrates that neither policy was an appropriate vehicle for the particular

subject of the oral contract. Under the circumstances of this case, that subject as logically and

reasonably required a separate agreement as did the subjects of the two policies.

The gross-receipts policy cannot, then, be said to constitute an integration of the subject of

the oral contract. That contract must be held to be collateral to and independent of the policy.

The parol evidence rule does not apply.

The fact that reference must be had to the policy in order that the terms of the oral contract

be fully understood, cannot affect our holding in this regard; nor can the fact that premiums

due under the oral contract were reported and paid together with those due under the policy.

These facts, under the circumstances, are entirely consistent with the existence of the oral

contract and cannot be said to accomplish an integration where one clearly was not intended.

[Headnote 5]

Appellant assigns as error the giving of Instruction No. 31 which deals with the legal effect

of a voluntary acceptance by appellant of premiums due under the oral contract and of a

subsequent tender back of those payments by appellant. Appellant's objections to this

instruction are that the word “premium” is not defined and that the instruction appears to

assume as fact that there was a voluntary acceptance and that liability for loss arose prior to

the tender back. The instruction, however, expressly requires a finding that the contract

existed, before the significance of the acceptance or tender might be considered. We do not

see how any error in connection with the instruction could be regarded ��


as prejudicial, save in the event appellant denied the authority of Agent Hyman, and an issue

of ratification by appellant was thus raised. This was not the case.

[Headnote 6]

Appellant assigns as error the giving of Instruction No. 37 to the effect that the fact that no

appraisal of collision damage was made by appellant constituted no defense. Appellant's

objection is that it never contended that such fact constituted a defense and that the

instruction thus injects into the case something which was not properly a part of it. We do not

see, however, that any prejudice could have resulted from the giving of this instruction.

[Headnote 7]

Appellant assigns as error the refusal of the court to give its proposed Instructions “A” and

“B,” both of which are to the general effect that respondents' failure to require that the oral

contract be incorporated in a written policy should defeat their claim. These are but

reflections of appellant's contentions regarding the existence of the oral contract and the

effect upon it of the parol evidence rule. In the light of the facts and of our opinion on these

subjects as heretofore expressed, these instructions cannot be said to constitute a true

statement of the applicable law.

[Headnote 8]

Appellant assigns as error the jury's verdict in favor of respondents, of $712.63 cargo loss,

and the court's refusal to grant a new trial as to this item of recovery. Appellant points out that

respondents did not ask any such recovery since they had already received compensation for

cargo loss; that, on the contrary, appellant had counter-claimed for a return of said amount.

Undoubtedly confusion does exist upon this subject which requires clarification. The

confusion, however, results largely from action of appellant. The record demonstrates that

appellant by its own withholding of sums due to respondents has, in effect, recovered back�� !"�#$��


the sum of $712.63 paid by it as compensation for cargo loss. Under the circumstances, the

jury verdict must be held simply to be a determination that appellant should not recover on its

counterclaim; that respondents were entitled to compensation for cargo loss; that appellant

was not entitled to withhold it from them; that appellant should restore respondents to the

position they occupied before appellant's action of withholding. Under this interpretation,

which we hereby place upon the jury verdict, it cannot be regarded as improper.

Judgment affirmed with costs.

Badt and Eather, JJ., concur.

____________

��71 Nev. 14, 14 (1955) Mullikin v. Jones��

LUCILLE MYRE MULLIKIN, Sometimes Also Known as and Called, LUCILLE

MULLIKIN, Appellant, v. BONNIE JONES, Respondent.

No. 3776

January 11, 1955. 278 P.2d 876.

Appeal from Eighth Judicial District Court, Clark County; Frank McNamee, Judge,

Department No. 1.

Suit to quiet title to one-half interest in real estate. Defendant filed cross-complaint to

quiet title in herself. From a decree for plaintiff, defendant appealed. The Supreme Court,

Badt, J., held that the undeclared homestead protected against unilateral alienation by

husband is a homestead in community property only, and fact that husband and wife occupied

premises, which they held in joint tenancy, as a home did not raise an undeclared homestead

or preclude husband's unilateral alienation.

Affirmed.

Ralli, Rudiak & Horsey, of Las Vegas, for Appellant.

Jones, Wiener & Jones and David Goldwater, all of Las Vegas, for Respondent.


1. Husband And Wife. Nevada has adopted the community property system, but has at the same time recognized and adopted

certain estates known to the common law. N.C.L.1929, secs. 3315, 3362, 3373.

2. Joint Tenancy. Nevada recognizes the attributes of the common law joint tenancy, although it has abandoned complete

adherence to the requirement of the manner of its acquisition. N.C.L.1931-1941 Supp., sec. 3710.

3. Homestead. The undeclared homestead protected against unilateral alienation by husband is a homestead in

community property only, and fact that husband and wife occupied premises, which they held in joint

tenancy, as a home did not raise an undeclared homestead or preclude husband's unilateral alienation.

N.C.L.1929, secs. 3315, 3360, 3362, 3373; N.C.L.1931-1941 Supp., sec. 3710; N.C.L.1943-1949 Supp.,

sec. 3315; Const. art. 4, secs. 30, 31.

4. Husband And Wife. Transmutation of property held in joint tenancy by husband and wife to community property is

susceptible of proof.

5. Husband And Wife. In absence of proof of original intent or subsequent agreement to hold property as community property,

the use of community funds, earnings and efforts to build up and materially increase value of joint tenancy

property is insufficient to prove a transmutation from joint tenancy to community property.

6. Equity. Although wife had continued to build up property, which had been held in joint tenancy with husband,

and to apply funds to discharge of mortgage, without knowledge, until after husband's death, that husband

had conveyed his interest to third party, third party's suit to quiet title was not barred by clean hands

doctrine, and trial court could, upon wife's filing cross-complaint to quiet title in herself, completely

adjudicate rights and order an accounting excluding third party from profits during period of wife's

management.

OPINION

By the Court, Badt, J.:

The main two questions presented on this appeal are:

A. When premises are held by a husband and wife as joint tenants, does the occupancy of

said premises as a home prevent alienation by the husband of his interest without the wife's

joining in the conveyance? Or, differently expressed, does an undeclared homestead under�� %


such circumstances, fall within the constitutional and statutory prohibition against unilateral

alienation by the husband?

B. Where property occupied by a husband and wife as their home is held by them in joint

tenancy, is a transmutation from such joint tenancy to community property accomplished by

proof that the joint tenancy property, originally of little value, was built up to a material value

through community efforts and by the use of community funds?

We answer both of these queries in the negative. Other questions, in the main incidental to

the foregoing, are disposed of in the following opinion.

The facts are simple. Lucille Mullikin and Rufus Mullikin were married at Las Vegas in

April 1947. Rufus had been married several times before, and had seven children by a prior

marriage. Rufus owned, at the time of his marriage to Lucille, the North Las Vegas Motor

Court, the subject of this litigation, being a lot approximately 100 by 200 feet on which are

situated a manager's apartment (occupied by Lucille and Rufus as their home from the time of

the marriage to the death of Rufus), nine rental cabins and some other improvements.

Assuming, for the purpose of this opinion, the filing of an amendment to the complaint,

tendered by the plaintiff but rejected by the court, and assuming certain proofs offered by

plaintiff and likewise rejected, the motor court owned by Rufus at the time of the marriage

had a gross value of about $20,000, was subject to encumbrances of $20,000, and was in a

badly run-down condition. Lucille installed in the property some household goods and

furniture worth about $1,500. In October 1947, Rufus conveyed the property to himself and

Lucille as joint tenants by regular form of joint tenancy deed, which was at once recorded. At

the same time both parties made their wills, each leaving all of his estate to the other. Both

spouses devoted their time and efforts to the property until Rufus became ill with tuberculosis

some two years after the marriage. In the ��!&'(��)��!&'!�


spring of 1950 he took to his bed in his last illness and died in July 1951. During the entire

period of his illness all the work of the motor court was done by Lucille. All the rental

proceeds above what was necessary for living expenses went toward paying off the

encumbrances and improving the property, with the result that at the time of Rufus' death the

mortgages had been reduced to about $1,500. In October 1950, Rufus executed a deed

conveying all his interest in the property to his daughter, Bonnie Jones, the respondent herein,

defendant below, which deed she recorded in July 1951, some two weeks after Rufus' death. 1

The trial court found that Rufus and Lucille owned and held the property as joint tenants,

and that Rufus had conveyed his interest in the premises prior to his death to his daughter

Bonnie Jones for a sufficient consideration. As a conclusion of law it held that the property

had been held by Rufus and Lucille in joint tenancy and not as community property.

Judgment was entered denying Lucille's prayer for a decree quieting her title to the entire

property, and granting the prayer of respondent's cross complaint for a decree quieting her

title to an undivided one half interest.

This appeal challenges first the holding of the trial court that an undeclared or de facto

homestead may not exist in real property held by the husband and wife as joint tenants; and,

secondly, the holding that the contribution of community efforts and community earnings,

greatly enhancing the value of the property, did not result in transmuting the joint tenancy to

that of community property. 2 There are other assignments of error, which are dealt with later.

____________________

1

Lucille on November 9, 1951 filed and recorded a declaration of homestead, in which she claimed the entire

premises as a homestead. Appellant asserts no rights under this instrument and it plays no part in this appeal.

2

Appellant states her second proposition thus: “If it should be held that a de facto homestead can exist only in

community property, then the court erred in refusing to permit the appellant to prove that the real property in

question, although title thereto was


The first question involves construction and interpretation of certain constitutional and

statutory provisions in the light of the decisions of this and other appellate courts in the

so-called community property states.

Section 30 of Article IV of the Constitution provides: “A homestead, as provided by law,

shall be exempt from forced sale under any process of law, and shall not be alienated without

the joint consent of husband and wife when that relation exists; * * * and laws shall be

enacted providing for the recording of such homestead within the county in which the same

shall be situated.”

Section 31 of Article IV defines the separate property of the wife as that owned before

marriage and afterward acquired by gift, devise or descent, and then provides, “and laws shall

be passed more clearly defining the rights of the wife in relation, as well to her separate

property as to that held in common with her husband.”

Section 6 of “An Act defining the rights of husband and wife,” enacted pursuant to the

constitutional mandate and being sec. 3360, N.C.L.1929, provides: “The husband shall have

the entire management and control of the community property, with the like absolute power

of disposition thereof, except as hereinafter provided, as of his own separate estate; provided,

that no deed of conveyance or mortgage of a homestead as now defined by law, regardless of

whether a declaration thereof has been filed or not, shall be valid for any purpose whatever

unless both the husband and wife execute and acknowledge the same * * *.”

Section 1 of “An Act to exempt the homestead and other property from forced sale in

certain cases,” being sec. 3315, N.C.L.1929, as amended, reads as follows:

“The homestead, consisting of a quantity of land, together with the dwelling house thereon

and its appurtenances, not exceeding in value ten thousand dollars, �� *�� +�++ ��*�� *�� *�� *��

____________________

vested in husband and wife as joint tenants, was, in fact, in whole or in part, the community property of husband

and wife.” But this involves an unwarranted assumption of the proof offered and which the trial court rejected.


to be selected by the husband and wife, or either of them, or other head of a family, shall not

be subject to forced sale on execution, or any final process from any court, for any debt or

liability * * *, except process to enforce the payment of the purchase money for such

premises, or for improvements made thereon, or for legal taxes imposed thereon, or for the

payment of any mortgage thereon executed and given by both husband and wife, when that

relation exists. Said selection shall be made by either the husband or wife or both of them, or

other head of a family, declaring their intention in writing to claim the same as a homestead.

Said declaration shall state when made by a married person or persons that they or either of

them are married, or if not married, that he or she is the head of a family, and they or either of

them, as the case may be, are at the time of making such declaration, residing with their

family, or with the person or persons under their care and maintenance, on the premises,

particularly describing said premises, and that it is their intention to use and claim the same as

a homestead, which declaration shall be signed by the party or parties making the same, and

acknowledged and recorded as conveyances affecting real estate are required to be

acknowledged and recorded; and from and after the filing for record of said declaration, the

husband and wife shall be deemed to hold said homestead as joint tenants; provided, that if

the property declared upon as a homestead be the separate property of either spouse, both

must join in the execution and acknowledgment of the declaration; and if such property shall

retain its character of separate property until the death of one or the other of such spouses,

then and in that event the homestead right shall cease in and upon said property, and the same

belong to the party (or his or her heirs) to whom it belonged when filed upon as a homestead;

and provided further, that tenants in common may declare for homestead rights upon their

respective estates in lands, and ��,�� -


the improvements thereon; and hold and enjoy homestead rights and privileges therein,

subject to the rights of their cotenants, to enforce partition of such common property as in

other cases of tenants in common.”

(1) With these constitutional and statutory provisions in mind, we approach first the

question whether an undeclared or de facto homestead may exist on the property thus held by

the husband and wife as joint tenants, placing it within the restrictions of sec. 30 of Article IV

of the Constitution and the proviso contained in sec. 3360, N.C.L., and preventing a unilateral

alienation of his undivided interest by the husband.

Appellant points out that no statute of this state provides in so many words that the

homestead which may not be conveyed except by an instrument executed by both the husband

and wife, applies only to the community property; that no statute provides that such

homestead may not apply to other than the community, with the exception of the provision

contained in sec. 3315 that both must join in the execution and acknowledgment of a

declaration of homestead upon the separate property of either spouse; that no statute expressly

prohibits a homestead on property held by the spouses as joint tenants; that the “protecting

mantle” of sec. 30 of Article IV is thrown over “a homestead” without regard to the nature of

the tenancy under which it is held. Despite the many cases reaching this court having to do

with both the constitutional and statutory provisions governing the selection of a homestead,

the rights and liabilities of the parties involved, the protection afforded to the husband and

wife against forced sale and the protection afforded to the wife from alienation by the

husband, the precise point as to whether the undeclared homestead secured against alienation

without the wife's consent is confined to the community has not been determined. Yet we

have definite indications that the undeclared homestead protected against the husband's

unilateral alienation must pertain to the community ��


property. The first is the fact that the only statutory provision voiding an attempted alienation

by the husband without joint action by the wife is sec. 6 of “An Act defining the rights of

husband and wife,” being sec. 3360, N.C.L., and which simply restates the constitutional

prohibition of such unilateral alienation found in sec. 30 of Article IV. The act in question

was, however, enacted pursuant to the mandate of sec. 31 of Article IV that “laws shall be

passed more clearly defining the rights of the wife in relation, as well to her separate property

as to that held in common with her husband.” 3

In First National Bank of Ely v. Meyers, 39 Nev. 235, 150 P. 308, 310, this court first

stated that the question for determination was whether the husband's unilateral deed was void

“because the property in question is community property * * *.” It emphasized that the rights

of the wife “in property held in common with her husband” were clearly defined in said sec.

6; that the act in question “is, as its title sets forth, an act defining the rights of husband and

wife,” and that its purpose was to secure to the wife and dependents the shelter of a home

acquired by the joint efforts or joint endeavor ��

____________________

3

In First National Bank of Ely v. Meyers, 39 Nev. 235, 150 P. 308, McCarran, J., says that sec. 3315 (there

referred to as the Act of 1865) exempting the homestead from forced sale, was passed pursuant to the direction

of sec. 30 of Article IV of the Constitution; and that sec. 3360 (there referred to as sec. 6 of the Act of 1873)

“defining the rights of husband and wife,” as amended in 1897, was enacted pursuant to sec. 31 of Article IV.

Appellant insists that in the opinion on rehearing, 40 Nev. 284, 161 P. 929, 932, the court receded from this

view and held that sec. 3360 was enacted pursuant to the mandate of sec. 30 of Article IV. We do not so read the

opinion on rehearing. On the contrary, the court there said: “[T]he amendatory act of 1897 [sec. 3360 N.C.L.

1929] was clearly within the mandate of the Constitution providing that ‘laws shall be passed more clearly

defining the rights of the wife,' etc.” This is the wording of sec. 31 of Article IV, though it is true that in the same

opinion the court said that sec. 3360 “effected no greater limitation on the powers of the husband to alienate a

homestead than did section 30 of Article IV of the constitution itself.” The fact would appear to be that sec.

3360 was enacted pursuant to the mandate of sec. 31, but within the declaration of the fundamental law laid

down by sec. 30.


and industry of both spouses. The defense upheld by the court in that case was based upon

“the community character of the property in question,” and the court characterized the

intention of the legislature as bringing the protection “to bear on the community property

actually occupied as a homestead.” Cases from the Supreme Court of Washington cited in the

opinion emphasize the purpose of the homestead statutes as affecting the community property

of the husband and wife. In the opinion on rehearing, 40 Nev. 284, 161 P. 929, it is noted that

the Act of 1865 (now sec. 3315, N.C.L.), although “it declared as to the property out of which

the homestead might be created,” nowhere “by any word or expression limits, prescribes, or

designates the rights of the respective parties to alienate” the homestead, but simply exempts

the same from forced sale on execution. In particular, said McCarran, J., speaking for the

court: “The amendatory act of 1897 (3360 N.C.L.) was a limitation to the dominance of the

husband over the community property.” He ridiculed the contention that selection and

recordation were necessary to notify the husband that “The community property * * * could

not be alienated by him.”

Appellant relies on the annotation found in 89 A.L.R. 511, 540, to the effect that, under the

majority rule, a tenant in common or a joint tenant may acquire a homestead in the undivided

premises. But this deals entirely with the right to declare a homestead. In re Swearinger (U.S.

Dist. Ct. for Dist. of Nev.) 5 Sawy. 52, Fed. Case No. 13,683, cited in the annotation,

likewise does not deal with alienation by one of the spouses holding in joint tenancy.

Appellant also relies on Walton v. Walton, 59 Cal.App.2d 26, 138 P.2d 54, but there the wife,

holding jointly with her husband, actually filed her declaration of homestead which, under

sec. 1238 C.C.Cal., could be selected from property held by the husband and wife as joint

tenants, as she had the right under California law to impress the homestead not only on her

own undivided �� .��


interest, her separate property, but also on the separate property of the husband—his

undivided interest in the joint tenancy. In that case, as in Swan v. Walden, 156 Cal. 195, 103

P. 931, the California court understandably held that the husband could not destroy the

homestead by a partition sale, placed by the court in the same classification as other examples

of a “forced sale.” Section 3315, N.C.L., which deals with the exemption of the homestead

from forced sale in Nevada, expressly provides, as distinguished from the California statute,

“that if the property declared upon [and in the instant case there was no declaration] as a

homestead be the separate property of either spouse, both must join in the execution and

acknowledgment of the declaration.” In addition we may note that the Walton and Walden

cases holding against the destruction of the homestead by partition relied upon the rule “that

land occupied as a homestead may be regarded as subject to a trust imposed by law which

would necessarily be defeated by partition.” [59 Cal.App.2d 26, 138 P.2d 57.] Such trust

theory is not advanced by appellant and we are not called upon to discuss it. These California

cases, on which appellant places strong reliance, are clearly not in point.

[Headnotes 1, 2]

We must accept as true that fact that in Nevada as in California (Siberell v. Siberell, 214

Cal. 767, 7 P.2d 1003) we have, by our Constitution and statutes, on the one hand adopted the

community property system, and have at the same time recognized and accepted certain

estates known to the common law. “A husband or wife may hold real or personal property as

joint tenants, tenants in common, or as community property.” Section 3362, N.C.L.1929. And

they may enter into any contract with each other respecting property into which they might

enter if unmarried. Id. sec. 3373. In adhering to or diverging from the common law system or

the community system, our legislature has from time to time ��


modified the operation of both. We have long recognized the attributes of the common law

joint tenancy, though we have abandoned complete adherence to the requirement of the

manner of its acquisition. (See N.C.L.1931-1941 Supp., sec. 3710.) And provisions for

disposition of the community property (whether by will, in case of intestacy, or on divorce)

have been the subject of constant legislative amendment. In all the process of adoption and

change, this state has never by direct statute or judicial construction provided for the

recognition of a de facto homestead (with exceptions not material here) other than out of the

community property of the spouses, so as to defeat unilateral alienation by the husband.

[Headnote 3]

Appellant advances the statement that it is the accepted practice in Nevada for husbands

and wives to take title to property as joint tenants, and contends that where such property also

happens to be the de facto homestead of the parties, an affirmance of the judgment would be

to subject thousands of wives in this state to the danger of losing their family homes through

fraud or improvidence of husbands in which such wives have had no part. The benefits and

dangers, the advantages and disadvantages of joint tenancies by husband and wife have been

for many years the subject of wide discussion among lawyers, banks, trust companies and

others, and in later years with a special view to federal tax liabilities. A choice of the tenancy

must be made, and we may assume that it will sometimes be made inadvisedly or that later

developments may indicate that the choice, seemingly advantageous at the time, has resulted

in loss or hardship. It may even be (and as to this we express no opinion) that statutory

amendment in some respect may be in order. These considerations, however, may not alter

what we think is the clear purport of our present constitutional and statutory provisions as

interpreted by this court. We see no escape �� /�� 0


from the conclusion to be drawn from the legislative intent, following the constitutional

mandate, and as applied by this court in both of the Meyers decisions, to the effect that the

undeclared homestead protected against unilateral alienation by the husband was the

homestead comprising the community property of the spouses. 4

(2) We turn then to the next question to be determined, namely, whether the evidence

(including that rejected by the court as well as that admitted) established as a matter of law a

transmutation from a joint tenancy to community property. This involves the determination of

the further question whether, in addition to the proof that the joint tenancy property was built

up to its present value by the community efforts and the community funds, proof was

essential either (a) that it was acquired and built up with such intent in the first instance, or

(b) that, although acquired without such initial intent, it was so transmuted by agreement of

the parties.

[Headnote 4]

That a transmutation from property held in joint tenancy by the husband and wife to

community property is susceptible of proof we consider to be now firmly established. Such

conclusion is questioned by respondent by reason of the statement contained in Siberell v.

Siberell, 214 Cal. 767, 7 P.2d 1003, 1005: “The use of community funds to purchase the

property and the taking of title thereto in the name of the spouses as joint tenants is

tantamount to a binding agreement between them that the same shall not thereafter be held as

community property, but instead as a joint tenancy with all the characteristics of such an

estate.” The court then explains its reason for such conclusion: “It would be ��

____________________

4

No question presented in this appeal necessitates any discussion of those clauses contained in sec. 3315

having to do with a declaration of homestead upon the separate property of either spouse, or upon the respective

estates in lands held by the spouses as tenants in common.


manifestly inequitable and a subversion of the rights of both husband and wife to have them

in good faith enter into a valid engagement of this character, and, following the demise of

either, to have a contention made that his or her share in the property was held for the

community, thus bringing into operation the law of descent, administration, rights of

creditors, and other complications which would defeat the right of survivorship, the chief

incident of the law of joint tenancy. A joint tenancy is one estate, and in it the rights of the

spouses are identical and coextensive.”

Respondent refers us also to Tomaier v. Tomaier, 58 A.C.A. 647, 137 P.2d 26, 28, which

on the whole supports such contention and justifies such support by quoting the language of

Siberell v. Siberell, supra. It also found support in Delanoy v. Delanoy, 216 Cal. 23, 13 P.2d

513, 514, which in turn relied on the Siberell case, but overlooked the fact that such holding

in the Delanoy case to the effect that the joint tenancy holding was tantamount to an

agreement so to hold, limited this by the statement that this was so determined “in the

absence of any evidence of an intent to the contrary.” This is the more significant because the

Tomaier case above cited, a decision of the District Court of Appeal of the State of

California, was thereafter reversed by the supreme court of that state, Tomaier v. Tomaier, 23

Cal.2d 754, 146 P.2d 905, 906, limiting the effect of the Siberell case and holding definitely

that evidence is admissible to prove that the property in question, though acquired by a deed

vesting the title in joint tenancy, is nonetheless community property. Mr. Justice Traynor

speaking for the unanimous court there said:

“It is the general rule that evidence may be admitted to establish that real property is

community property, even though title has been acquired under a deed executed in a form that

ordinarily creates in the grantee a common law estate with incidents unlike those under the

law of community property. Thus land may be shown ��


to be community property even though it is granted to one spouse alone as his or her property

in fee simple. [citing cases]

“Again, it may be shown that husband and wife intended to take property as community

property even though they accepted a deed drawn to them as tenants in common. [citing

cases] It has in fact been held unequivocally that evidence is admissible to show that husband

and wife who took property as joint tenants actually intended it to be community property.

[citing cases] Such rulings are designed to prevent the use of common law forms of

conveyance to alter the community character of real property contrary to the intention of the

parties.

“Moreover, it is well settled that property may be converted into community property at

any time by oral agreement between the spouses [citing In re Estate of Watkins, 16 Cal.2d

793, 108 P.2d 417, 109 P.2d 1, and other cases], and an agreement at the time the property is

acquired has the same effect. If the evidence establishes that the property is held as

community property, however, it cannot also be held in joint tenancy, for certain incidents of

the latter would be inconsistent with incidents of community property.”

This is entirely in accord and analogy with the holding of this court in the Petition of

Fuller, 63 Nev. 26, 159 P.2d 579, although that case dealt with the matter of a transmutation

to the community of property conveyed to the husband the day after the marriage, and which

he later conveyed to the wife. Referring to the presumption of community ownership arising

from the first deed and the presumption of separate ownership in the wife arising from the

second deed, this court, speaking through Taber, C.J., said that both presumptions were

rebuttable, though clear and convincing evidence was required to show a transmutation.

In re Estate of Watkins, 16 Cal.2d 793, 108 P.2d 417, 419, 109 P.2d 1, a leading case, the

rival claimants to the ��1�


estate were the relatives of Henry G. Watkins, deceased, on the one hand, and a relative of

Jean Watkins on the other. Henry and Jean were married in 1899. Henry died in 1926 and

Jean in 1936. They had accumulated a large estate. Shortly before the death of Henry, he and

Jean executed a joint and mutual will in which they declared that all of their property was

accumulated and acquired during marriage and was community property. In the proceedings

to determine inheritance tax during proceedings in the husband's estate, Jean testified that all

of the property of which Henry died possessed either in his own right or as tenant in common

with her or as joint tenant with her was the community property of Henry and her. Much of

the property had been conveyed by them to a third person and reconveyed to them as joint

tenants. This was before the execution of the joint and mutual will referred to. The supreme

court assumed the intention of the parties to create themselves joint tenants by the deed

referred to and that the deed carried out such intention, but said: “* * * it seems entirely clear

that subsequently and at the time of the execution of the joint and mutual will, they jointly

expressed their intention in writing that all of said property should have the status of

community property. It is well settled that a husband and wife may agree with respect to the

character of the property which they hold and that they may transmute their property from one

status to another by an agreement which ordinarily need not be executed with any particular

formality.” Earlier California cases are cited and discussed. To like effect is In re Wilson's

Estate, 64 Cal.App.2d 123, 148 P.2d 390, 392, in which title vested in the spouses as joint

tenants, after which the husband conveyed to the wife by deed of gift. Under testimony of the

husband to the effect that he gave his wife the money for the down payment and the

subsequent payments on the property, all from his salary, that he had no intention to make a

gift, that the property was bought to be their home, that it was to be �� 2��/��/��


community property and that if either died, it was to go to the other, the court held that “as

between Mr. and Mrs. Wilson and those claiming through them, the character of their interest

in the property is not necessarily that which would follow from the form of the deeds. It is

now too well settled to justify more than the citation of the authorities that in spite of the

mold into which a deed would seemingly press a title, either because of the intent with which

the deed was made [citation] or made and received [citation], or because of an oral agreement

between a husband and wife, carried into effect, determining their respective interests in real

estate [citations] property which, measured by the deed, would not be community property,

nevertheless may be just that.” The court then cited Tomaier v. Tomaier, 23 Cal.2d 754, 146

P.2d 905, to like effect, and decided that the trial court “had ample justification” for

concluding that at the death of Mrs. Wilson the property was community property of herself

and Wilson.

In Chase v. Leiter, 96 Cal.App.2d 439, 215 P.2d 756, the husband and wife held certain

property in joint tenancy, but made a joint and mutual will in which they agreed that all of

their property was community property. The court referred to Estate of Watkins, supra, as the

leading case, and quoted the language which we have quoted above, stating further that the

mutual and joint will must be held to have constituted an agreement between the spouses

fixing the status of their property as community property. In addition to Estate of Watkins the

court cited Estate of Sehabiague, 47 Cal.App.2d 793, 119 P.2d 30, and In re Wilson's Estate,

64 Cal.App.2d 123, 148 P.2d 390. This was in answer to the contention that the Watkins case

was the only one so holding except in divorce cases. See also to like effect McRay v. Winter,

118 Cal.App.2d 800, 801, 258 P.2d 872; Faust v. Faust, 91 Cal.App.2d 304, 204 P.2d 906;

Andrews v. Andrews, 82 Cal.App.2d 521, 186 P.2d 744; Silverstein v. Silverstein, 76

Cal.App.2d 872, 174 P.2d 486; Huber v. Huber, " �3��"�� 40 �!# �5�"�� (4,��6��7�� "! �3��


27 Cal.2d 784, 167 P.2d 708; and In re Kessler, 217 Cal. 32, 17 P.2d 117. The conclusion to

be drawn from all of these cases is undoubtedly that property acquired in the name of either

spouse, or taken by both spouses as tenants in common or as joint tenants may be, by

agreement between them, transmuted into community property.

Having thus established, with perhaps unjustified laboriousness, that a transmutation may

be proved, we turn to the facts of the present case. The essential facts were cited early in this

opinion. Appellant's point of view, however, may be further illustrated by her assignments of

error in the trial court's refusal to admit in evidence a number of items offered by her. These

include: evidence of the value of the motel property at the time of the joint tenancy deed;

numerous documents showing the extent of the encumbrances at the time; documentary

evidence of the payments made against these encumbrances; accounts showing income and

expenses of the motel; oral testimony in support of and explaining the foregoing items;

testimony as to the commingling of funds; and testimony as to the failure of appellant's

husband, while he was keeping the books and accounts, to make any segregation of the

income attributable to the motel as such from that attributable to the personal efforts of the

parties. After offering these proofs, counsel stated to the trial court: “That is the sum and

substance of what we offer to prove by the testimony of this witness if permitted by the

court.” An objection was sustained on the ground that the evidence was immaterial. (The

limiting phrase “of this witness” does not affect the situation.) We arrive at the same result

whether we treat this question under the assigned error of the rejection of the evidence or

under the assigned error of the court's conclusion that the property retained its character of a

joint tenancy, assuming the admission of the proffered evidence. No case has been called to

our ��


attention, nor have we discovered one in our own research, in which a transmutation from

joint tenancy to community was held to have taken place without proof either that the

property was acquired with the intent that it be held in a tenancy different from that indicated

from the form of the deed, or that, although acquired without such initial intent, it was later

transmuted by agreement of the parties. Appellant repeatedly complains that she was not

permitted to show “the intention” of the parties under the joint tenancy deed, but we find in

the record no offer to prove such intention. Referring apparently to the use of community

funds and efforts to improve the property, appellant contends that “even circumstantial

evidence is admissible to prove such intent,” and cites Tomaier v. Tomaier, 23 Cal.2d 754,

146 P.2d 905; McRay v. Winter, 118 Cal.App.2d 800, 801, 258 P.2d 872 and Williamson v.

Kinney, 52 Cal.App.2d 98, 125 P.2d 920. In all of these cases, however, the record contained

testimony of a declared intent or an agreement to hold the property as community property.

The only testimony in the instant case that even approaches any of the situations in which the

evidence was held sufficient to support a conclusion of transmutation was plaintiff's

testimony of statements made by her husband: “He always told me that the place was mine if

anything happened to him * * *. He told me he didn't think he was ever going to get well and

if I would use my head and take care of the home place I would have a living the rest of my

life.” Another witness testified: “He told me that he knew he couldn't get well. It was only a

matter of time, and that if Lucille would stay at the court she should be well cared for,

because the will was made so that his children could not bother it and her children could not

bother it should she die before he did.” It is at once evident that this is entirely consistent with

the desire, intention and agreement of the parties that the property continue to be held in joint

tenancy.


[Headnote 5]

It is unnecessary for us to determine, and we do not determine, that under no

circumstances may the intent of the parties be established through circumstantial evidence.

Our affirmance of the judgment goes only to the extent of holding that the use of community

funds, earnings and efforts to build up and materially increase the value of the joint tenancy

property, without further proof of original intent or subsequent agreement to hold the property

as community is insufficient to prove a transmutation from joint tenancy. As a matter of

“hindsight,” the wife would have been far better off with an undeclared homestead in

community property which the husband could not have alienated without her joining in the

deed. But they held under a joint tenancy with its attendant benefits and dangers. The

continued building up of the property and the discharge of the encumbrances were just as

compatible with the benefits to be derived from a joint tenancy as those to be derived from a

holding as community property. So far as the record discloses, even including the testimony

offered, the intention to take and hold the property as joint tenants never changed. Absent any

proof of intent or agreement to the contrary, we are left with the holdings of the Siberell,

Delanoy and Tomaier cases, and others, that the taking and holding of the property in joint

tenancy was tantamount to an agreement so to hold it. The joint tenancy thus created and

preserved was subject to dissolution by a conveyance of his interest to a third party on the

part of either of the joint tenants.

[Headnote 6]

(3) The opinion of the trial court indicates its feeling that, despite the law that compelled a

judgment for respondent, appellant had been rather shabbily treated—not only by her

husband's conveyance of his interest in the property, but by the fact that, from the date of such

conveyance on October 6, 1950, until July 5, 1951, when the first knowledge of this transfer

was disclosed to ��

��


appellant, respondent permitted appellant to devote the proceeds of the motel business to the

further discharge of the mortgage and to the improvement of the property and the

enhancement of its net value. Appellant contends that under such circumstances and through

application of the clean hands doctrine, it was an abuse of the court's discretion to grant

respondent equitable relief by way of quieting her title to her half interest in the property. The

court, in its awareness of the whole picture, ordered an accounting of the motel business for

this period, and, as we understand the effect of the order, respondent will be precluded from

any of the profits of the motel during such time. The plaintiff's complaint to quiet her asserted

title to the entire property called forth defendant's cross complaint to quiet title to her asserted

half interest. A complete adjudication of the rights of the parties was in order. We find no

abuse of discretion in the order made.

The judgment is affirmed with costs.

Merrill, C.J., and Eather, J., concur.

____________

��71 Nev. 34, 34 (1955) Ex Parte v. Helm��

In the Matter of the Application of

Frederick W. Helm, for a Writ

of Habeas Corpus.

FREDERICK W. HELM, Appellant, v. C.W. YOUNG,

Sheriff of Washoe County, Respondent.

No. 3783

January 20, 1955. 278 P.2d 885.

Appeal from the Second Judicial District Court, Washoe County; John S. Belford, Judge,

Department No. 1.

Habeas corpus proceedings for release from custody under executive warrant issued

pursuant to requisition by governor of another state charging petitioner with crime. From a

judgment and order denying and dismissing writ, petitioner appealed. The Supreme Court,

Eather, J., held that determination of guilt or innocence of crime charged, and, consequently,

whether or not petitioner was fugitive from justice, was not question to be resolved by asylum

state but was for determination of demanding state.

Affirmed.

(Rehearing denied March 21, 1955.)

Stewart & Horton, Reno, for Appellant.

W.T. Mathews, Attorney General; Geo. P. Annand, Deputy Attorney General; Jack

Streeter, District Attorney; and A. Dyer Jensen, Assistant District Attorney of Washoe

County, for Respondent.

1. Habeas Corpus. Determination of guilt or innocence of crime charged, and, consequently, whether or not petitioner was

fugitive from justice, was not question to be resolved by asylum state in habeas corpus proceedings for

release from custody under executive warrant issued pursuant to requisition from another state charging

defendant with crime.

2. Habeas Corpus. Whether adequate payment had been made to wife prior to leaving state and whether adequate subsequent

payments had ��*��


been made by hushand who brought habeas corpus proceedings for release from custody under executive

warrant issued pursuant to requisition from another state in which husband was charged with abandonment

and non-support of children, were fact questions to be resolved by demanding state.

3. Habeas Corpus. Where defendant was properly held under executive warrant at time of hearing on habeas corpus

proceedings, it was not error for trial court to direct retention and custody, notwithstanding detention prior

to issuance of executive warrant may have been improper.

OPINION

By the Court, Eather, J.:

This is an appeal from a judgment and order of the Second judicial district court of the

State of Nevada, in and for the county of Washoe, Department No. 1, denying and dismissing

a writ of habeas corpus.

On August 11, 1953 an executive warrant for the arrest of appellant was issued by the

governor of this state, pursuant to which appellant was taken into custody by the sheriff of

Washoe County. On August 13, 1953, hearing on a writ of habeas corpus was had in the trial

court. On August 14, 1953, the order of the trial court from which this appeal is taken, was

duly entered.

The executive warrant issued by the governor of this state was issued upon a requisition

issued by the governor of the State of New York charging appellant with commission of the

crime of “abandoning his children under the age of 16 years, in destitute circumstances and

wilfully omitting to furnish necessary food, clothing and shelter therefor.” In turn that

requisition was based upon indictment by the grand jury of Erie County, New York, accusing

appellant of commission of the crime of abandonment in that county on May 3, 1953.

There is no question but that appellant is the accused person and that he was present in

Erie County, New York, on the date in question.


Appellant contends, nevertheless, that he is not a fugitive from justice. This contention is

based upon his testimony at the hearing below to the effect that in leaving the State of New

York he did not leave his children in destitute circumstances and had not omitted to provide

for them; that he had made provision for them prior to leaving, and had continued to make

such provision after leaving.

[Headnote 1]

Appellant's position, thus, is essentially that he is innocent of the crime charged; that it is

for this reason that he cannot be said to be a fugitive from justice. The issue of guilt or

innocence, however, is one to be resolved not by the asylum state but by the demanding state.

See: Ex Parte La Vere, 39 Nev. 214, 156 P. 446; Ex Parte Filtzer, 60 Nev. 109, 100 P.2d 942,

and cases cited therein.

In support of his contention that this issue is a proper one for determination by the courts

of this state, appellant cites: In Re Kuhns, 36 Nev. 487, 137 P. 83, 50 L.R.A., N.S., 507; In

Re Roberson, 38 Nev. 326, 149 P. 182, L.R.A. 1915 E, 691. In both cases the undisputed

facts established as matter of law that the crime of abandonment charged against the

petitioner had not been committed at the time he left the demanding state. In holding

petitioner not to be a fugitive from justice, the courts of this state could not be said to have

usurped the functions of determination which properly should reside in the demanding state.

[Headnote 2]

Such is not the case before us. Sworn statements of appellant's wife which formed a part of

the record before the trial court, demonstrate that factual issues remain to be resolved as to

the date upon which payment was made prior to appellant's departure from New York; as to

the facts of subsequent payments; as to the sufficiency of all of these payments. As held in Ex

Parte 8��9��


Filtzer, supra, these are issues which properly should be resolved in the demanding state.

[Headnote 3]

Appellant contends that prior to issuance of the executive warrant by the governor of this

state, he was improperly detained in custody of the sheriff of Washoe County by commitment

order of the justice of the peace of Reno Township. It is contended that in several respects the

magistrate failed to comply with the requirements of our code of criminal procedure relative

to the procedure which should be followed in the arrest and commitment of fugitives from

other states. This contention is not pertinent to this appeal. Regardless of the propriety of

appellant's earlier commitment, he was at the time of the hearing here under review, properly

held under the executive warrant. The trial court cannot, then, be said to have committed

error in directing that he be retained in custody. Ex Parte Shepley, 66 Nev. 33, 202 P.2d 882.

Affirmed.

Merrill, C.J., and Badt, J., concur.

____________

��71 Nev. 38, 38 (1955) Good v. District Court��

PEARL GOOD, as Administratrix of the Estate of JACK K. GOOD, Deceased, and as an

Individual, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE

OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, Respondent.

No. 3841

January 24, 1955. 279 P.2d 467.

Original petition for a writ of certiorari to review sundry orders of the Second Judicial

District Court, Washoe County; Harold O. Taber, Judge, Department No. 2.

Administratrix of estate of deceased brought original certiorari proceedings against the

district court to review certain orders. The Supreme Court, Badt, J., held that where

individual brought action in justice court against administratrix of estate of deceased on claim

against estate, and, after judgment for administratrix, appealed to district court for trial de

novo, and in district court it appeared that family corporation, managed and controlled by

individual, was the proper plaintiff, district court properly permitted amendment of complaint

to substitute corporation for individual as plaintiff.

Petition denied and proceedings dismissed.

(Rehearing denied February 18, 1955.)

Stewart and Horton, of Reno, for Petitioner.

C. Lester Zahniser, of Sparks, for Respondent.

Justices of the Peace.

Where individual brought action in justice court against administratrix of estate of deceased on claim

against estate, and, after judgment for administratrix, appealed to district court for trial de novo, and in

district court it appeared that family corporation, managed and controlled by individual, was the proper

plaintiff, district court properly permitted amendment of complaint to substitute corporation for

individual as plaintiff. N.C.L.1931-1941 Supp., secs. 9882.121, 9882.123, 9882.124; Rules of Civil

Procedure, Rules 15 (a-d), 21.


OPINION


Petition for certiorari to review certain orders of the respondent court in a trial de novo

from the justice's court allowing certain amendments to the plaintiff's complaint, which

petitioner alleges were without the jurisdiction of the district court to make.

A claim was filed in the matter of the estate of Jack K. Good, deceased, by claimant

named as “A & S Machine Shop,” to which was attached a statement naming the creditor as

“A & S Machine Shop Frank S. Saunders.” The verification of the claim was made by Frank

S. Saunders on the printed form furnished by the clerk reciting, “the undersigned being duly

sworn, says that he is the creditor named in and who makes the foregoing claim * * *.” The

claim was for $192.50, comprising $189 labor and $3.50 material in the furnishing of a

“ladder hook.” The hours comprising the labor were itemized as to dates, amounts, etc. The

claim was rejected by the administratrix and suit on the rejected claim was filed in the

justice's court of Sparks township by “Frank S. Saunders, dba A and S Machine Shop vs.

Pearl Good, as Administratrix, etc.” The plaintiff alleged that he was the owner of the A & S

Machine Shop and had filed a certificate of doing business under a fictitious name as required

by statute. He alleged the furnishing of the labor and the material to the decedent by the

plaintiff and the filing and rejection of the claim against the administratrix. The justice of the

peace entered judgment for the defendant administratrix, including an attorney fee of $75.

After the appeal was lodged with the district court the petitioner herein took the deposition of

Frank S. Saunders, who testified (in reduction to narrative form) as follows: “I own the A & S

Machine Shop. It is a corporation, a family affair, father, son and mother. I am the manager,�� 6��


the resident agent, I am responsible. I bought it as a corporation from Mr. Shelley, lock, stock

and barrel, everything. I bought everything, all outstanding stock, all machinery and

everything. The corporation has operated as a corporation ever since I purchased it. Q. Was

the work and labor described in your complaint done by the machine shop as a corporation?

A. You mean were we under a corporation when we performed this work? Q. Yes. A. Yes. It

has been in force, never let off.” Following such deposition, defendant administratrix moved

for a summary judgment. The court denied the motion, ordered that the complaint be

amended by substituting the corporate plaintiff for Frank S. Saunders as an individual, and

granted the motion of the plaintiff to amend and correct the creditor's claim and the affidavit

supporting the same to show the claimant as A & S Machine Shop, a corporation. Unless

such orders are annulled by this court, the respondent district court will proceed to try the

case de novo on such appeal, and upon such amended complaint based upon the rejected

creditor's claim as amended.

Petitioner contends that the district court had no jurisdiction to permit the amendment on

appeal, (1) because there was no showing of a change of circumstances, (2) because the same

resulted in the statement of a new cause of action, (3) because the amendment substituting

parties on appeal brought in a party not a successor in interest to the substituted party and one

not asserted to be affected by the judgment appealed from, (4) because the substitution was

made after expiration of the time within which an appeal from the justice's court could be

taken, and (5) because the amended claim filed in the estate proceeding was after expiration

of time for filing of claims and resulted in the statement of a new claim. It is our opinion that

these assertions of lack of jurisdiction are all without merit.

Relying on Paul v. Armstrong (reprint, 1-2 Nev. 70), 1 Nev. 82, petitioner contends that in

a trial de novo in the district court upon an appeal from a justice's ��2�� -!��


court the issues “must be the same as those tried in the court below,” 1 and that in the instant

case such issue was changed to a suit by a corporate plaintiff on a rejected corporate claim for

work and labor furnished by a corporation from a suit by an individual plaintiff on an

individual claim for work and labor furnished by an individual. The liberality of our

applicable statutes and rules of civil procedure as applied to the recited facts leads us to the

conclusion that these contentions are not tenable. Section 9882.121 N.C.L. 1931-41 Supp.,

which describes the nature of the claim to be filed against a decedent's estate, contains the

following sentence: “The court may, in its discretion, for good cause shown, allow a defective

claim or affidavit to be corrected or amended on application made at any time before the

filing of the final account.” The record does not indicate that the final account has as yet been

filed. As to whether the amendment results in the statement of a new claim beyond the

purview of permitted amendments and corrections, we feel that this is governed by our

conclusions hereinafter stated with reference to the amendment of the complaint. And unless

the nature and character of the claim are substantially changed, there would appear to be no

good reason why the amendment should not have been permitted. Kirman v. Powning, 25

Nev. 378, 60 P. 834, 61 P. 1090.

____________________

1

The quoted clause, taken out of context, is misleading. Though we may assume for the sake of argument that

such is the general rule, in the case cited it was applied to permit, and not to restrict, a right of review of the

judgment of ejection by a justice's court where that court had, in excess of its jurisdiction, entered a judgment by

confession. As no issues were raised in the justice's court, there was nothing to be retried on a trial de novo and,

an appeal being thus unavailing, certiorari was held proper. The right to assert and prove a defense (lack of

notice etc. before ejectment) was preserved by the district court and affirmed by this court. We achieve the same

result here, although the right preserved is the cause of action of the plaintiff rather than the defense of the

defendant. Nor is Martin v. District Court, 13 Nev. 85, holding that a default in the justice's court left no issues

to be tried in the district court, applicable here, where the defendant's answer denied that any materials or labor

were furnished to the decedent.


Prior to the effective date of the new rules of civil procedure (N.R.C.P.), amendment of

pleadings was largely governed by the provisions of sec. 8640, N.C.L. 1929. This section read

in part: “The court may, in furtherance of justice, and on such terms as may be proper, amend

any pleading or proceedings by adding or striking out the name of any party, or by correcting

a mistake in the name of a party, or a mistake in any other respect, and may upon like terms

enlarge the time for an answer, reply, or demurrer, or demurrer to an answer or reply filed.

The court may likewise, upon affidavit showing good cause therefor, after notice to the

adverse party, allow, upon such terms as may be just, an amendment to any pleading or

proceeding in other particulars * * *.” The liberality of permitting amendments under this

section was in some cases limited by holdings to the effect that a new and different cause of

action could not be substituted through such amendment, and that an absolute substitution of

indispensable parties could not be permitted thereby. Amendment of pleadings is now

governed by the applicable sections of N.R.C.P., in whose construction we are aided by the

interpretation of the federal courts of corresponding sections of the federal rules of procedure.

Rule 21 N.R.C.P. concerning misjoinder and nonjoinder of parties reads:

“Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or

added by order of the court on motion of any party or of its own initiative at any stage of the

action and on such terms as are just. Any claim against a party may be severed and proceeded

with separately.”

Rule 15 (a) concerning amended and supplemental pleadings provides, first, when the

pleading may be amended as of course and then provides: “Otherwise a party may amend his

pleadings only by leave of court or by written consent of the adverse party; and leave shall be

freely given when justice so requires.” Subdivisions :�; �:�;��:�;��


(b), (c) and (d) of this rule evidence even greater liberality of amendment.

In Paper Container Mfg. Co. v. Dixie Cup Co., 74 F. Supp. 389, a proceeding was brought

in the U.S. District Court for the District of Delaware under R.S. sec. 4915 to obtain a patent

after a decision by the Board of Interference Examiners. Under the facts the Reconstruction

Finance Corporation, as assignee of the patent, was held to be an indispensable party. The

plaintiff, as of course and before the filing of a responsive pleading, filed an amendment to

the complaint under Fed. Rules Civ. Proc., Rule 15(a), 28 U.S.C.A., to bring in the R.F.C. as

a party plaintiff. Defendant moved to strike the amendment, first, because it was not filed by

leave of court as required by Rule 21 and, secondly, because the court had no jurisdiction to

accept the amendment because the bringing in of an indispensable party plaintiff was not

made within the six months' period prescribed in R.S. sec. 4915, 35 U.S.C.A. sec. 63,* for

such a proceeding. The latter ground was held good, but as to the former the court said [74 F.

Supp. 395]: “Even though no motion for the addition of R.F.C. as a party plaintiff has been

made under Rule 21, yet the court in furtherance of justice and on its own initiative could

and, in a proper case, should, order the addition of an indispensable party plaintiff.”

On appeal, Paper Container Mfg. Co. v. Dixie Cup Co., 170 F.2d 333, 339, the Circuit

Court of Appeals for the Third Circuit, reversed that part of the order which dismissed the bill

because not filed within six months after the decision of the Board of Interference Examiners,

and held that the bill, as filed by Paper Container was timely even though R.F.C. was not

joined as a plaintiff. As to the subsequent amendment, the appellate court emphasized the fact

that the R.F.C. was an indispensable party and that the action could not proceed to a

conclusion without its being joined as a party. The ��<�25��3��

��

____________________

* 1952 Revision 35 U.S.C.A., secs. 145, 146.


court then said: “Paper Container has endeavored to effect this by filing the amendment

referred to in the first paragraph of this opinion. As we apprehend the record the court below

did not pass directly upon the question of the propriety of the amendment filed under Rule 15

(a) but simply dismissed the complaint. * * * Whether that joinder be made by way of an

amendment under Rule 15 (a) or by motion under Rule 21 seems to us to be immaterial but

the proper course of joinder must be determined by the court below upon remand.”

Particularly pertinent to the present case is the observation of the court that it makes no

difference to the defendant Dixie Cup which party plaintiff is the real and indispensable 2

party in interest, or whether both are, as Dixie Cup will have its day in court, and that whether

the patent is issued to Paper Container or to R.F.C. or to both (if the patent application relied

upon is held valid) is a matter of no legal import to Dixie Cup. In the instant case the

administratrix will have her day in court. If she successfully defends the action, neither Frank

Saunders nor A & S Machine Shop, a corporation, may relitigate his or its claim against her.

If the judgment should go against her, she is not concerned with the question as to whether

the estate must pay the amount of the judgment to Frank Saunders or to A & S Machine

Shop. The estate cannot be subjected to another suit in the matter. Time for filing claims

against the estate, as well as time for suits on rejected claims, has long since expired. The

same evidence will support the claim of the individual plaintiff and of the corporate plaintiff

and the same measure of damages will apply to both. It is not amiss to note ��=��>��' �!&'! ��*��/��' �!&'"��8��0 �!&'$.��*��!��$

____________________

2

Emphasis should be given to the references by the court in this case and by the court in the Eastern

Distilleries Corporation case, infra, to the bringing in, by amendment or motion under the rules, of an additional

indispensable party plaintiff. Such emphasis is important by reason of earlier rulings which though conceding

the propriety of an amendment to add an additional proper party, questioned the right to bring in an

indispensable party omitted from the original pleading.


that the creditor's claim was filed December 5, 1951, that the time for filing such claims

expired March 5, 1952 and that the rejection of the claim was made February 4,

1953—eleven months after expiration of time for filing claims and fourteen months after the

claim was fi1ed. 3

In In re Eastern Distilleries Corporation, 47 F. Supp. 330, 332, the stockholders of the

corporation owning all its outstanding shares entered into an agreement with the defendant

whereby the latter agreed to lend money to the corporation under certain conditions. The

corporation ratified and confirmed the agreement, agreed to be bound by its terms and did and

performed certain things thereunder. After partial performance, the defendant refused to

continue with its agreement, to the alleged damage of the corporation, and suit for damages

was brought by the trustee in bankruptcy of the corporation. Defendant moved to dismiss for

nonjoinder of the contracting stockholders. The court referred to the general rule that an

action on a simple contract must be brought by the person from whom the consideration

actually moved and not by a stranger to the consideration. As the stockholders had

covenanted that the corporation do certain things and perform sundry acts, the court said: “I

cannot persuade myself that Eastern is a ‘stranger to the consideration',” and held that the

“nearness of relation” between the promisee and the beneficiary furnished an exception to the

rule stated, citing Mellen v. Whipple, 1 Gray, Mass. 317. And see Micheletti v. Fugitt, 61

Nev. 478, 486, 487, 134 P.2d 99, where ��2�� -�� 2��*�� -�>�� )� �� 9��

____________________

3

Sec. 9882.123, N.C.L. 1931-41 Supp. (the amendment of Stats. 1953, 505, not then being in effect)

provided: “within fifteen days after the time for filing claims has expired, as hereinbefore provided, the executor

or administrator shall examine all claims filed and endorse on each claim his allowance or rejection * * *.” Sec.

9882.124 provides in part: “When a claim is rejected * * * the holder shall be immediately notified by the

executor or administrator, and such holder must bring suit * * * within thirty days after such notice * * *

otherwise the claim shall be forever barred.”


this court refused to “strain after technicalities to defeat the intention of the parties,” where

the corporation, “although maintaining the form of legal existence, was, in effect, merely the

name under which defendant was doing business.” Ducker, J., writing the opinion,

emphasized the fact that the other party was not deceived in any way. Nor was the decedent in

the instant case.

We are of the opinion that the reasoning of the foregoing, and other similar opinions,

should guide us in the instant case, to the end that the exercise by the learned district judge of

his discretion in permitting the amendments in the furtherance of justice should not be

disturbed. We think it in accordance with the mandate of Rule 15 (a) N.R.C.P. that leave to

amend shall be freely given when justice so requires.

The petition for a writ of certiorari is denied and the proceedings dismissed.

Merrill, C. J., and Eather, J., concur.

____________

��71 Nev. 47, 47 (1955) Pender v. Clark County��

RENNOLD PENDER, Appellant, v. CLARK

COUNTY, a Municipal Corporation,

Respondent

No. 3818

January 28, 1955. 279 P.2d 659.

Appeal from Eighth Judicial District Court, Clark County; Frank McNamee, Judge,

Department No. 1, denying relief in quiet title suit sought by grantee of former owners against

county's title acquired through delinquent tax proceedings.

The Supreme Court, Badt, J., held that defects in tax foreclosure proceeding were cured by

curative statute and that even if tax deed issued prematurely was void it could not be attacked

after expiration of right of redemption.

Judgment and order denying new trial affirmed.


Hawkins & Cannon, of Las Vegas, and Milton V. Backman, of Salt Lake City, Utah, for

Appellant.

Roger D. Foley, District Attorney, Las Vegas, for Respondent.

1. Taxation. That notice of tax sale was not sufficiently published, that property was described in assessment and in

notice of sale by lots and blocks of its subdivision which had been vacated, that notice of delinquency

incorrectly stated percentage of penalty, that notice did not segregate taxes, penalties and costs, and that

notice of amount due was not mailed to taxpayer were not jurisdictional defects and were cured by curative

statute. N.C.L.1929, sec. 6447; sec. 6440, as amended by St.1931, p. 97.

2. Taxation. Where errors in tax proceedings were cured by curative statute, the tax sale could not be held invalid by

reason of such errors, and the period of redemption commenced to run from the date of said sale, and upon

the expiration of two years, title vested in county by operation of law. N.C.L.1929, secs. 6447-6449; sec.

6440, as amended by St.1931, p. 97.

3. Taxation. Where errors in tax proceeding had been cured by curative statute and period of redemption had expired,

that tax deed ��*��*��


was prematurely executed and that county failed to obtain another tax deed did not detract from its right

thereto or to the title which vested by operation of law and did not vest any new rights in grantee of former

record owner. N.C.L.1929, secs. 6447-6449; sec. 6440, as amended by St.1931, p. 97.

4. Taxation. After expiration of period of redemption from tax foreclosure sale, county had right to demand tax deed

from county treasurer and upon treasurer's failure to execute and deliver deed, county could have enforced

right to deed by mandamus. N.C.L.1929, secs. 6447-6449; sec. 6440, as amended by St.1931, p. 97.

5. Taxation. Failure of owner to exercise right of redemption after tax foreclosure sale within statutory time precluded

owner from attacking prematurely issued tax deed. N.C.L.1929, secs. 6447-6449; sec. 6440, as amended by

St.1931, p. 97.

OPINION


This appeal grows out of the sale to Clark County by the officials of Clark County of

certain parcels of land for nonpayment of taxes. We are presented first with the question as to

whether a number of defects in the tax proceedings culminating in a sale to the county and the

issuance of a certificate of such sale were cured by our curative statute. There is next involved

the effect of the execution of tax deed to the county one day before expiration of the period of

redemption. A third question involves the determination of the legal position of the plaintiff

who purchased a quit claim deed of the property from the original owners some nineteen

years after the execution and delivery of such deed and seeks a decree quieting title by reason

thereof.

We hold that the defects in the tax proceedings asserted by plaintiff were not jurisdictional

and were cured by the curative provisions of our statute; that, assuming the tax deed to be

void by reason of its premature execution, such situation cannot profit the plaintiff.

The facts are simple. For the year 1931 the property ��?�

)��@��*��


in question was assessed to one W. J. Stewart and the taxes paid. In the following year, 1932,

it was assessed to Mina and Helen Stewart. The taxes being delinquent and unpaid for that

year, the property was sold and a tax certificate issued by the county tax receiver to the county

treasurer on September 11, 1933. Helen and Mina Stewart in 1932 had caused the county tax

receiver to segregate the property in question from other property assessed to them, and paid

the taxes on the other property while permitting the taxes on the questioned property to go

delinquent. The owners neither directly nor indirectly made any attempt to redeem the

property from the tax sale, and it does not appear that they were in possession or occupancy

of any portion of the land involved. On September 11, 1935, one day before the expiration of

two years from the issuance of the tax certificate, and thus one day prior to the time in which

the property could have been redeemed under the statute, the county treasurer executed his

tax deed to the defendant Clark County. On January 27, 1954, over twenty years after the tax

sale and over eighteen years after the tax deed, plaintiff obtained a quit claim deed to the

property. On the same day he made a tender to the county treasurer of Clark County, which

we may assume to have been an offer to pay the delinquent taxes, interest and penalties. On

the following day he commenced the present action.

[Headnote 1]

In the course of the proceedings leading up to the tax sale of September 11, 1933, there

was a failure in several respects to comply with statutory requirements. Appellant lists five

assignments of error, each growing out of the court's ruling that such failure was cured by the

curative provisions of the statute hereinafter quoted. These assignments are as follows, the

statutory provisions mentioned being those in effect at the time:

1. Section 6447, N.C.L. 1929, required that notice of tax sale be advertised immediately

after the first /�� /��@��*��


Monday of August of each year, that the property be sold on the second Monday in

September next succeeding, and that the notice be published in a newspaper at least once a

week until the date of sale. Contrary to such direction, the notice of sale in the instant case

was published only once, namely, on August 13, 1933.

2. The property was described in the assessment and in the notice of sale by lots and

blocks of its subdivision, whereas prior thereto the city council had vacated a portion of the

subdivision and restored the property to acreage.

3. The notice of delinquency demanding payment before December 5, 1932 advised that a

penalty of 15 percent would be added, whereas the amendment of sec. 6440, N.C.L. 1929,

then in effect, Stats. 1931, p. 97, fixed a penalty of 10 percent.

4. The notice did not segregate the taxes, penalties and costs, whereas the said statute then

in effect required the notice to specify the amount of taxes due from the taxpayer, “and the

penalties and costs as provided by law.”

5. Section 6440, N.C.L. 1929, as amended, Stats. 1931, p. 97, required: “* * * the tax

receiver shall forward by mail a post card to each taxpayer * * * notifying him of the amount

due.” No such post card was mailed. The mailing requirement was repealed by Stats. 1933,

but the 1931 requirements governed official action at the time.

The county insists that none of the defects is jurisdictional or affected any fundamental

rights of the plaintiff, and that all of them are cured by the provisions of sec. 6449, N.C.L.

1929. The relevant portion of sec. 6449 (subsequent amendments to the section do not affect

the present situation) reads as follows: “No tax heretofore or hereafter assessed upon any

property, or sale therefor, shall be held invalid by any court of this state on account of any

irregularity in any assessment, or on account of any assessment or tax roll not having �� *��,�+�+�+�-


been made or proceeding had within the time required by law, or on account of any other

irregularity, informality, omission, mistake or want of any matter of form or substance in any

proceeding which the legislature might have dispensed with in the first place if it had seen fit

so to do, and that does not affect the substantial property rights of persons whose property is

taxed; * * *.”

We are of the opinion that assignments 2, 3 and 4 are clearly within the operation of the

statute quoted. Menteberry v. Giacometto, 51 Nev. 7, 267 P. 49; Davison v. Gowen, 69 Nev.

273, 249 P.2d 225; Haskins v. Roseberry, 9th Cir., 119 F.2d 803; Williams v. Board of

Supervisors, 122 U.S. 154, 7 S.Ct. 1244, 30 L.Ed. 1088; Longyear v. Toolan, 209 U.S. 414,

28 S.Ct. 506, 52 L.Ed. 859; Hagar v. Reclamation District, 111 U.S. 701, 4 S.Ct. 663, 28

L.Ed. 569.

Assignments 1 and 5, the failure to give the required statutory notice of sale would appear

to be more serious, but that they were cured by the provisions of the statute was the holding

of this court in Menteberry v. Giacometto, supra. The language of that case, in which the

notice of sale clearly failed to comply with the statute, is conclusive. This court there said:

“The sale under the notice which was given is confirmed by the language of the statute just

mentioned

* * *. As a matter of fact, no notice whatever was necessary did not a statute require it. But

our statute expressly provides exactly when property shall be sold for delinquent taxes. Such

a provision is sufficient notice without further publication of notice of the time of sale.”

(Emphasis supplied.)

Appellant insists that his assignment No. 2 is well taken by reason of the decision of this

court in Jackson v. Harris, 64 Nev. 339, 183 P.2d 161, but the facts with reference to the

description do not even approach similarity. The description given in the notice in the instant

case, by lots and blocks of the subdivision, was a complete description and identification of

the property. The ��


mere fact that, upon petition of the owner, the city council had the year before restored a

portion of the property to acreage did not affect the accuracy of the description. Thus Jackson

v. Harris becomes wholly inapplicable.

[Headnotes 2-5]

In addition to the foregoing five assignments of error, appellant argues at length that it was

error to hold that the plaintiff's cause of action was barred by what is generally referred to as

“the short statute of limitations.” This is found in the last sentence of sec. 6449, N.C.L. 1929,

part of which we heretofore quoted. The sentence is as follows: “No action or counter claim

for the recovery of lands sold for taxes shall lie unless the same be brought or interposed

within three years after the execution and delivery of the deed therefor by the treasurer, any

law to the contrary notwithstanding.” Appellant cites many authorities to the general effect

that such statute begins to run from the date of the tax deed, and that a premature tax deed is

void and does not start the statute running. For the purpose of this opinion we may assume,

without so deciding, that the tax deed was void by the reason of its premature issue on

September 11, 1935, one day prior to the expiration of the two-year statutory period of

redemption; and we may assume further, for the sake of argument, that plaintiff's action was

therefore not barred by such statute despite the fact that it was commenced over eighteen

years after the execution of the tax deed. It is unnecessary to decide these points because,

having held that the errors in the tax proceedings were cured by the curative portions of the

section it necessarily follows that the tax sale could not be held invalid by reason thereof. The

period of redemption would therefore commence to run from that date as provided by law.

Upon expiration of that period, title vested in the county by operation of law. The

corresponding portion of sec. 6448, N.C.L. 1929, in effect at the time of the proceedings here�� <�26��-


involved, read: “If it is not redeemed the title thereto shall vest in the county for the benefit of

the county and state and may be disposed of as provided by law.” And sec. 6449 provides: “If

the property is not redeemed within the time allowed by law for its redemption, the treasurer

* * * must make to the purchaser * * * a deed of the property * * *.” As this court said in

Lyon County v. Ross, 24 Nev. 102, 50 P.1: “The county became the legal owner thereof, at

the time the right of redemption expired, for the benefit of the county and state, under the

express provision of said section 40.” The failure of the county to obtain the tax deed in no

way detracted from its right thereto or to the title which vested by operation of law; nor did

the failure to execute the tax deed on or after September 12, 1935 vest any new rights in the

plaintiff. The respondent county unquestionably had the right to demand its tax deed from the

county treasurer upon the latter's failure to execute and deliver the same after expiration of

the period of redemption, in failure of such redemption, and could have enforced such right

by mandamus. The execution of the tax deed was not indispensable to the vesting of title.

Buman v. Sturn, 73 N.D. 561, 16 N.W.2d 837. The failure of the owner to exercise the right

of redemption within the time prescribed by law left him in no position to attack the

prematurely issued deed. Buman v. Sturn, supra; De Baca v. Perea, 52 N.M. 418, 200 P.2d

715.

The learned trial judge correctly recited the foregoing principles of law and ruled

accordingly. He said in part: “* * * the equitable right which the Stewarts had for the two

years period immediately following September 11, 1933 vanished by operation of the law

upon the expiration of said period, and likewise by operation of law the legal title thereupon

vested immediately in the County. N.C.L. 6448. The giving of a tax deed thereafter to the

county is a mere ministerial act creating only an indicium of title.”


This case and other cases reaching this court, as well as cases that became final in the

district courts without appeal, bring to light the failure of county tax officials year after year

to follow the clear directions of the statutes, and the foregoing opinion is not intended to

condone or to place the stamp of this court's approval upon such failure. Our curative statute,

while held by this court in Menteberry v. Giacometto, supra, to be reasonable, fair and proper,

should not be considered an invitation by the legislature to county officials to ignore at will

directions as to the manner of assessment and collection of taxes and the enforcement thereof

by sale of the property. That such failures serve only to breed litigation is evidenced by the

instant case.

The judgment and order denying new trial are affirmed with costs.


____________________

[Reporter's Note: Pender v. Clark County. Appeal to the United States Supreme Court was dismissed

November 7, 1955, for want of a substantial federal question.]

____________

��71 Nev. 55, 55 (1955) Hickman v. Kline��

KEITH HICKMAN, Individually and as Trustee of the Brotherhood of Painters, Decorators

and Paperhangers of America, International Association, an Unincorporated Association,

Appellant, v. JOHN O. KLINE, T.R. GEBHARDT, FRANK WESTLEY, THOMAS OTIS,

A.W. SCHUSTER, R.L. ATKINSON, EVERETT H. DWIGHT, GEORGE SAXTON, E.M.

TIPTON, ORMAN JONES, MEYER HEGGEN, E.C. ROCKEFELLER, EDDIE ROCK, E.

BOLLING, W.C. STEELE, VIC BLOOM, ELVIN SHOEMAKER, JOHN BAILS, JOHN E.

CUNNINGHAM, E.R. CHENOWITH, F. SMITH, JAMES LEE, THOS. WASHINGTON,

G.N. THOMPSON, J.B. FISHER, H.H. SCHULTZ, JAMES KING and FRED BLOOM,

Individually and as Members of the Brotherhood of Painters, Decorators and Paperhangers of

America, Local No. 159, on Behalf of Themselves and all Other Persons Similarly Situated,

Respondents.

No. 3814

February 2, 1955. 279 P.2d 662.

Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,

Department No. 3.

Actions by members of a local labor union to compel the international union to restore

control of the local union thereto after imposition of a special trusteeship thereon by the

international union's general president. From a judgment for plaintiffs, the trustee appealed.

The Supreme Court, Merrill, C.J., held that notice to the local union's officers by the general

president's simple announcement that a hearing would be held on the question of continuing

the trusteeship, pursuant to a provision of the international union's constitution, without any

notice of the facts or information on which he acted in imposing the trusteeship, and such

hearing, at which the members' efforts to obtain information as to �� 9��9��


his reasons for such action or the proof on which he acted were consistently rebuffed by the

hearing officer, were insufficient, so that continuation of the trusteeship beyond the ten days

authorized by the constitution was unauthorized and plaintiffs were entitled to the relief

prayed.

Affirmed.

Morse & Graves, of Las Vegas; Alexander H. Schullman, of Los Angeles, California, for

Appellant.

Bonner and Rittenhouse, of Las Vegas, for Respondents.

1. Labor Relations. A notice to local labor union officers by international union's general president's simple announcement

that hearing pursuant to international union's constitution would be held on question of continuing

trusteeship imposed by him on local union, without any notice of facts or information on which he acted,

and such hearing, at which local union members' efforts to obtain information as to reasons and proof

prompting such action were consistently rebuffed by hearing officer, were insufficient, so that continuation

of trusteeship beyond ten days prescribed by constitution was unauthorized and such members were

entitled to restoration of control of local union.

2. Associations. Courts will not ordinarily interfere with voluntary associations' internal affairs.

3. Labor Relations. Courts cannot undertake to run labor unions in detail or interpret their laws on every point of internal

controversy.

4. Labor Relations. A local labor union's right of self-government carries with it right of each member thereof to participate

in determinations and agreements directly affecting his livelihood and terms and conditions on which he is

bound to labor in manner prescribed by union's constitution, and public having interest in such right, it

merits protection by judicial intervention.

5. Labor Relations. With respect to internal labor union controversies, remedies within organization under constitution

thereof must be exhausted before resort to courts, as such constitution amounts to binding agreement

between union and its members respecting such procedures, with which courts should not interfere, and no

showing of need for judicial relief is made until �*��9��


exhaustion of such remedies or establishment of fact that such controversies cannot be resolved through

established procedures of organization.

6. Labor Relations. The general rule that remedies within labor union under constitution thereof with respect to internal union

controversies must be exhausted before resort to courts is subject to exceptions, reflecting largely

principles on which rule is based, and it must be given reasonable and common-sense application to facts

of each case.

7. Labor Relations. If requirement that internal remedies within labor union under its constitution be exhausted before resort

to courts by members thereof would be unreasonable and practical denial of justice under circumstances or

exhaustion of such remedies would be clearly vain and useless undertaking, such a course is not a condition

precedent to equitable relief.

8. Labor Relations. Local labor union members' action to compel international union to restore control of local union thereto,

after imposition of special trusteeship thereon by international union's general president, because of failure

to inform such members of reasons therefor or information on which president acted in notice of or at

hearing on question of continuing trusteeship, was not premature, though plaintiffs had not exhausted their

remedies within international union under its constitution, where local union followed constitutional

procedure without success and demonstrated futility of its attempts to secure relief thereby.

9. Labor Relations. Members of local labor union were not precluded from suing to compel international union to restore

control of local union thereto, after imposition of special trusteeship thereon by international union's

general president, because they had not exhausted their remedies of review under provision of international

union's constitution for appeal from general executive board to general convention of union, as such

provision had no relation to appeals from general president's acts, but dealt solely with appeals from

decisions of local unions, district councils and other subordinate bodies.

OPINION

By the Court, Merrill, C. J.:

This action challenges the propriety of a trusteeship imposed by an international labor

union upon its Las Vegas local and is brought by members of the local to ��


compel the union to restore control to the local. Judgment of the trial court was in favor of the

local to the effect “that the defendants, The Brotherhood of Painters, Decorators and

Paperhangers of America, International Association, its officers, responsible agents and

servants restore to Local 159 of said Brotherhood control of its organization and each and

everything of which the Local was deprived as a result of the special trusteeship including all

property and property rights of the Local.” The trustee, Keith Hickman, has taken this appeal

individually and as trustee. In our view the judgment was proper and should be affirmed.

The trusteeship was imposed pursuant to authority of section 47 of the constitution of the

union. Section 47(a) reads as follows: “Whenever the affairs of a Local Union are improperly

conducted, or the officers thereof are neglectful, dishonest or incompetent, or the membership

is indifferent to the management of the Local Union, and the rights and interests of the

members of the Local Union are likely to be placed in jeopardy, the General President, with

the approval of the General Executive Board, may appoint a Special Trustee to take

immediate charge and control of the Local Union and its affairs.”

Section 47(g) reads as follows: “Upon the appointment of a special Trustee, as provided in

this section, the General President shall notify the officers of the Local Union that he will

hold a hearing, at which interested parties may be heard on the subject of continuing the

Special Trusteeship. The notice may be given by the General President by telegram, ordinary

mail, registered mail or long distance telephone. The General President shall fix the time and

place of the holding of said hearing, which shall be within ten (10) days of the appointment of

a Special Trustee. If, upon such hearing, the General President is of the opinion that the

affairs of the Local Union should continue under trusteeship, he shall make such decision

and, thereupon, the Trustee ��


shall continue to act in accordance with his powers as defined in this section. If, upon such

hearing, the General President is satisfied that the management of the affairs of the Local

Union do not require the continuance of the Special Trusteeship, he shall so decide and the

Local Union and its officers shall revert to their former status and continue to operate without

trusteeship.”

By section 47(f) the maximum term of the trusteeship is fixed at two years.

The intent and purpose of these subsections, read in context, are clear. The president is

authorized, ex parte, to impose a temporary trusteeship without notice or hearing when, in his

determination, any of the conditions specified in section 47(a) exist and the affairs of the local

appear to him to demand such protective action. However, within ten days of such action a

hearing must be had upon notice in order that the justification for the trusteeship may be

considered by all interested parties. Action of the president on the basis of such a hearing

amounts to a determination on the merits of all questions relating to the need or justification

for the trusteeship.

Our first question is whether, under section 47, the trusteeship was properly imposed upon

the local.

On June 2, 1953 by telegram the general president of the union notified the local of his

appointment of Hickman as special trustee. In this notice he based his action upon the fact

that “the general executive board has received the report of improper conduct of the affairs of

Local Union 159.” The nature of the improper conduct was not specified.

Testifying at the trial in the court below the general president stated that his action had

been based upon information received by him which had convinced him that in many respects

the rights and interests of the members of the local were likely to be placed in jeopardy. His

concern was based in large part upon conduct of James King, business agent of the local. On

March 24, !&'$��/��"' �!&'$��5��>��)��3�� 9��


1953 and May 25, 1953 special meetings had been held of what was known as the Painters

and Decorators Joint Committee, consisting of representatives of both labor and management

in the local industry and organized pursuant to collective bargaining agreement. At those

meetings charges of improper conduct on the part of King were made and statements in

support of them were received. Transcripts of these proceedings were sent to the general

president. In the court below he testified that having read the transcripts he was thoroughly

convinced that an emergency existed. He also testified that his action was based upon

information that the local was guilty of discrimination in rates of pay charged to employers

and of violations of the Wage Stabilization Act of 1952, 50 U.S.C.A. Appendix, sec. 2101 et

seq.; that “a general chaotic condition” existed in the local; that members were afraid to

appear at meetings and were under the domination of King. Certainly these are matters which

no responsible union executive could properly ignore under section 47.

On June 10, 1953, after notice, a hearing was had in Las Vegas. The notice was simply an

announcement to the general effect that a hearing pursuant to section 47(g) would be had on

the subject of the continuance of the trusteeship. No notice was given as to the facts or

information on the basis of which the president had acted. The proceedings were reported and

transcribed. A study of the transcript discloses that the hearing was well attended by members

of the local. No evidence was presented on behalf of the international union of any of the

matters which had been brought to the attention of the general president. Furthermore, never

once during the course of the hearing was a disclosure made as to the factual basis for the

trusteeship. The members were left to guess at the reasons for the president's action and,

without guidance of any character, to attempt to meet and refute the implication that the

affairs of the local justified such action.

Constantly throughout the proceedings the members' ��


rebellion at this procedure manifested itself. In this respect the transcript constitutes as

powerful prose in proof of the American instinct for democratic due process as one is likely

often to read.

Presiding at the hearing was James Blackburn, international representative. In opening the

hearing, section 47(g) was read by him as explanation for the calling of the hearing and to

indicate the nature of the proceeding. He concluded his opening remarks thus: “At this time,

as per section (g), if there is anyone who now wishes to protest or have anything to say

regarding the trusteeship or against the trusteeship, the floor is yours one at a time, and let's

have order.”

In the course of the proceeding we then find the following remarks and exchanges:

Bro. Thompson: “I would like to ask you, Brother Blackburn, a question. Will you tell us

why our charter has been taken away from us? Meeting after meeting we have asked our

delegates to the Joint Committee to give us a briefing of what has taken place. Brother Fenton

gets up and said it hasn't been made out. We know more about the meeting than he does when

he was right there. Brother Hickman gets up and says that he don't know. * * *”

Blackburn: “I am here as a hearing officer, not as an interrogator. I am the direct agent of

L. M. Raftery, General President, with authority from him to act as hearing officer. If Brother

Fenton or Brother Hickman wish to answer you, they may do so at this time.”

Bro. Fenton: “I happen to be one of the men that the man referred to and I'm sworn to

secrecy on those matters. * * *”

* * * * * * *

Bro. Anderson: “I would like to find out if there isn't some procedure—isn't there

something, some way of moving Mr. King from his position and let us, as a body, run our

own affairs instead of having one director?”

Blackburn: “You've read the constitution?”

Anderson: “Yes.”


Blackburn: “Then you can answer your own question. There's no charges against Mr.

King to my knowledge.”

Thompson: “Now I'm gonna get down to this thing. I still want to know why the

International is here. * * *”

* * * * * * *

Blackburn: “* * * Any and all questions directed at me regarding the trusteeship I must

refer to the general president to answer further.”

Thompson: “Who filed charges so that this organization could be taken over?”

Blackburn: “There have been no charges filed against it as far as I know.”

Thompson: “I want to know why.”

Blackburn: “I refer you to section 47 of the constitution. Read it.”

Thompson: “I've read it. Maybe as many times as you have. Why did they take it over?”

Blackburn: “Get in touch with the general president.”

Thompson: “What are you here for?”

Blackburn: “I'm here representing the general president to see that this hearing is properly

held and that he gets proper information. Is that clear?”

Thompson: “You're the organizer here. If we ask you for information you should give it to

us, shouldn't you?”

Blackburn: “I haven't any information any more than you have.”

Unidentified member: “Do you know why the local was taken over?”

Blackburn: “Under section 47, whenever the affairs of a Local Union are improperly

conducted—”

Member: “Don't you know? In whose opinion have they been improperly conducted?”

Blackburn: “Evidently the opinion of the general president.”

Member: “If there have been no charges filed why has he taken over?” A��<��26��6��=��6��


Blackburn: “If I don't have order I will adjourn this meeting. I hope that sinks in. In due

deference to this union I want a proper hearing. I don't want any cat calling, booing or

anything else.”

* * * * * * *

Bro. Dwight: “I would like to put a question to the members here, Local 159, the

membership. I would like to ask this local to stand up and see who all is in favor of continued

trusteeship of our local.”

Blackburn: “That's out of order.”

Bro. West: “It's a question. It's pertaining to this. We're asking to get out of trusteeship.

Our brotherhood would want to know whether this local down here wanted a trusteeship

without any reasons.”

Blackburn: “We're not going to take that up. That will be settled by the general president.

We're not going to put anybody on a spot in this hearing. * * * You have a constitution which

serves as avenues and means for appeals and everything else. If you'll read your constitution

all these things you're asking are answered.”

Bro. Ladd: “I was one of the joint committee and I yet don't know why it was turned over

to the International. Furthermore, there was never brought up in the local whatever happened

down to the joint committee meeting. The membership don't know.”

Blackburn: “I will inform the membership now that in the office there is a transcript of

that particular thing that everybody can read. You're all at liberty to come up and read it.”

Ladd: “The whole detail never was brought up there until this come up. Why wasn't it

read at a meeting?”

Blackburn: “Anyone else?”

Thompson: “I would like to read the first paragraph of that section 47. [Reads section

47(a).] We still don't see a reason and the reason has not been told to us why the local went

into trusteeship. Doesn't somebody have to prefer charges against an officer if he's been

neglectful, dishonest or incompetent? Nobody has been found guilty. Brother King has been

involved in something.


He still hasn't been found guilty. You said just now that there are no charges against him so

how can you come in and take a local over just because 47 says so. It don't say so. None of

these things are true, not one of them.”

Blackburn: “I want to remind you and everybody else you can't take part of a sentence out

of anything until you read the complete entire matter. Paragraph (a) reads: [Reads.] If you'll

read paragraph (g) you're having a hearing. If, in the opinion of the general president, after he

gets this data, he deems this union able to handle its own affairs it will not have a trusteeship.

If he deems that it doesn't, the trusteeship will be continued.”

Thompson: “Why go over to (g) when none of those rules have been broken in your

paragraph (a); so why scrap that and go over to (g)?”

Blackburn: “How do you know that—”

Thompson: “I don't think the members know. Nobody's been found guilty. I want you to

clarify it for me. I don't see none of them that has been violated in that first paragraph. I don't

see one of them that has been violated in one of those things in there.”

Blackburn: “That's your opinion, Brother.”

Bro. Krug: “I would like to know who ordered this local to be put under trustee.”

Blackburn: “Who ordered the local put under trusteeship? The general president, L. M.

Raftery.”

* * * * * * *

Bro. Reno: “I would like to ask, is it your opinion that the general president would place a

local of this kind in trusteeship without first having a recommendation?”

Blackburn: “My opinion has nothing to do with the matter.”

Reno: “Don't you think there was a recommendation made from some place, either the

Joint Committee or you?”

[Unanswered.]

* * * * * * *


Blackburn: “Is there anyone here that hasn't spoken? Five or six men have practically

dominated the floor. I'm asking now because I want everybody to have the opportunity to

speak. Is there anyone other than those who have spoken that wishes to have anything to say

now? If there isn't, your meeting is adjourned.”

[Headnote 1]

It is true that King, the business agent, had some conception of the reason for the

trusteeship. He read to the hearing some 24 charges which had been made against him by the

joint committee and gave his answers to these charges. Certainly everyone was given full

opportunity to express himself. It is clear, however, that the members of the local whose

rights of self-government were, allegedly for their own best interests, being taken from them,

had no information as to the reasons which had prompted the action of their general president

or of the nature of the proof upon which he had acted. Not only had they no knowledge in this

respect, their constant efforts to obtain information were consistently rebuffed.

Throughout the meeting it was reiterated by the hearing officer that no formal charges had

been filed against the local or any officer or member. Appellant before us asserts that section

47 does not require the filing of charges as prerequisite to the imposition of a trusteeship. It is

true that no such formal requirement is made. That section in effect provides, however, that

as grounds for trusteeship certain conditions must exist within the determination of the

general president; that such determination may not be an arbitrary one but must follow notice

and hearing. Interested parties are, then, entitled to knowledge of the grounds for the

trusteeship, and of the supporting evidence and an opportunity themselves to present evidence

and to be heard with reference to such matters.

Notice and hearing were, then, insufficient within the contemplation of section 47(g).


Appellant assigns as error refusal of the trial court to admit testimony to the effect that the

local has prospered under trusteeship. Such proof, even if admitted, could not alter the

situation. No one has questioned the good faith of the general president, the general executive

board or the trustee in acting as they have under a misconception of their rights and duties.

No one has questioned the honesty or efficiency of the trustee's administration. The essential

fact remains that the right of the local to enjoy self-government was not taken from it in

accordance either with the provisions of its constitution or with our traditional concepts of

due process.

It follows that under section 47, continuation of the trusteeship beyond the period of ten

days after appointment of the trustee was improper and without authority. Under that section

the members of the local then possessed a right to restoration of control of their local.

[Headnotes 2, 3]

We are next confronted with the question whether this is a right which is entitled to

judicial protection. Courts will not, in the ordinary case, interfere with the internal affairs of

voluntary associations. See 7 C.J.S. 79, Associations, sec. 34; 4 Am.Jur. 466, Associations

and Clubs, sec. 17. In Dusing v. Nuzzo, 178 Misc. 965, 37 N.Y.S.2d 750, 752, the principle,

as applied to labor unions, is well stated as follows:

“The boundaries of the judicial power over labor unions ought to be plainly stated. Where

the management in control of a labor union refuses to obey the laws of the union requiring

that elections be held, or where it arbitrarily expels members from the union roster in

violation of union law, or where it dissipates union funds without accounting, and where

redress for any of these irregularities cannot be obtained through constituted local or

international officials, the court will intervene to grant relief. The ground of judicial

intervention is that in these circumstances necessity impels the court to act in relief of union

members unable to ��


relieve themselves of abuses of power. The necessity is imperative because in modern

industry the economic existence of union labor is dependent upon a union leadership

responsive to the needs and direction of the union membership.

“But the courts cannot undertake to run the labor unions in detail or to interpret their laws

upon every point of internal controversy. If the judicial power were exercised in this scope it

would have an unfortunate consequence upon the independence and the vitality of labor

unions. Experience in responsible self-government is essential to the success of union labor in

protecting its economic welfare. This in turn depends upon its independence and the courts

should intervene only in cases of grave necessity.” See also: Chafee, The Internal Affairs of

Associations, 43 Harvard Law Review 993; Anno. 21 A.L.R.2d, 397.

[Headnote 4]

Appellant emphasizes that the action of the general president was not that of expulsion

from membership or revocation of charter; that the action taken cannot operate to deprive a

member of his right to secure employment in the industry or to participate in welfare benefits.

Cf. Johnson v. Brotherhood of Carpenters and Joiners of America, Local Union No. 971, 52

Nev. 400, 288 P. 170.

Still a local's right of self-government carries with it for each of its members his right as a

member and in such manner as may be prescribed to participate in determinations and

agreements directly affecting his livelihood and the terms and conditions under which he is

bound to labor. The right to participate in such determinations is related to the right of

freedom itself and is such a right as a free country will not permit to be taken from one

without his assent. Furthermore, since the economy of his community may be affected by

such agreements, a member's participation in their negotiation and determination relates to his

responsibility as a ��9��


citizen. The right of local self-government in such an association as this, then, is one in which

the public has interest. There can be little doubt that it is a right which merits protection by

judicial intervention.

Accepting that the right herein involved is entitled to judicial protection appellant contends

that this suit was prematurely brought for the reason that at the time of its commencement

respondents had not exhausted their remedies within the framework provided by the union

constitution.

The constitution, sec. 44(f) provides for appeal to the general executive board from

decisions of the general president and from his orders to a subordinate body or its officers and

members.

The action before us was commenced June 26, 1953. On September 4, 1953 the general

president ordered continuance of the trusteeship upon the basis of the hearing of June 10,

1953. An appeal from this order was taken to the general executive board. On December 11,

1953 the decision of the general executive board was announced as follows: “Dear Sir and

Brother: Protest No. 114384 of Brother James King of Local Union 159, Las Vegas, Nevada,

against the decision of General President L. M. Raftery that the Special Trusteeship of Local

Union 159 be continued has been submitted to the General Executive Board. I have been

instructed to notify Brother James King that the protest is not sustained.”

At the time of commencement of this action, then, the meeting with reference to

continuation of the trusteeship had been held but no order for continuance had been made by

the general president nor had the general executive board acted upon review.

[Headnote 5]

With respect to internal union controversies it is universally recognized as the general rule

that remedies within the organization must be exhausted before resort is had to the courts. See

7 C.J.S. 81, Associations, sec.


34b. The rule is based, among others, upon the principles: (1) that the constitution amounts to

a binding agreement between the union and its members with respect to such procedures,

with which agreement the courts should not interfere; (2) that until such remedies are

exhausted no showing of need for judicial relief has been made and that courts should not be

encumbered with such internal controversies until it has been established that they cannot be

resolved through the established procedures of the organization. Killeen v. Hotel &

Restaurant Employees International Alliance, 84 Cal. App.2d 87, 190 P.2d 30.

[Headnotes 6, 7]

The rule is subject to exceptions reflecting largely the principles upon which it is based

and is to be given a reasonable and common sense application to the facts of each case. As

stated in Local Union No. 57, Brotherhood of Painters, Decorators and Paperhangers of

America v. Boyd, 245 Ala. 227, 16 So.2d 705, 712, “But this rule is not without its

exceptions, based upon reason and common sense. If requiring exhaustion of internal

remedies would, under the circumstances, be unreasonable and a practical denial of justice, or

if it is clear that exhausting its internal remedies would be a vain and useless undertaking,

such a course is not a condition precedent to equitable relief.” Accord: Johnson v.

Brotherhood, supra; Bianco v. Eisen, 190 Misc. 609, 75 N.Y.S. 2d 914.

[Headnote 8]

In the instant case, by taking hold of the controversy the courts cannot be said to have

countenanced a violation of the sanctity of contract or to have interfered with the contractual

rights of the parties. The local has, without success, followed the agreed procedure and has

demonstrated the futility of its attempts to secure relief thereby. Should this suit be dismissed

as prematurely brought, it would promptly and properly be brought anew and the courts

would be doubly encumbered with ��


the identical controversy. The reasons for the rule do not here exist and under the facts of this

case it is reduced to mere technicality.

We are left with the proposition, which we cannot in good sense or justice ignore, that

upon the merits of the controversy this is a proper resort to the courts for relief by union

members otherwise unable to relieve themselves.

[Headnote 9]

Appellant contends that the local has not yet exhausted its remedies of review under its

constitution. It is pointed out that section 293 provides, “Appeals from the General Executive

Board shall be taken to the General Convention.” Such an appeal has not here been taken.

This section, however, has no relation to appeals from acts of the general president but deals

with appeals from decisions of local unions, district councils and other subordinate bodies.

Affirmed with costs.


____________

��71 Nev. 71, 71 (1955) Colton v. Murphy��

R. FRED COLTON, GEORGE RAYMOND COLTON, Jr., AND GORDON COLTON,

Appellants v. WILLIAM K. MURPHY, EDNA MURPHY, AND ALBIN C. KIRKEBY,

Respondents.

No. 3805

February 16, 1955. 279 P.2d 1036.


Department No. 3.

Action to quiet title to mining property. From a judgment for plaintiff, defendants

appealed. The Supreme Court, per curiam, held that where on appeal, opening and answering

briefs were filed, but appellants neglected to file reply brief, and where oral argument was

waived and matter was submitted upon such opening and answering briefs, meritorious

contentions of respondents in answering brief, supported by authority and standing

unchallenged, showed no material controversy to be resolved, and appeal would accordingly

be dismissed.

Appeal dismissed.

Harry E. Claiborne, of Las Vegas, for Appellants.

Jones and Pursel, of Las Vegas, for Respondents.

Appeal And Error.

Where, on appeal from judgment on pleadings for plaintiffs in action to quiet title to mining property,

opening and answering briefs were filed, but appellants neglected to file reply brief, and where oral

argument was waived and matter was submitted upon such opening and answering briefs, meritorious

contentions of respondents in answering brief, supported by authority and standing unchallenged, showed

no material controversy to be resolved, and appeal would accordingly be dismissed.

OPINION

Per Curiam:

This is an action brought by respondents to quiet title to mining property located in Clark

County. Judgment on the pleadings was entered by the trial court in favor ��=��

��71 Nev. 71, 72 (1955) Colton v. Murphy��

of respondents based upon the court's decision that appellants had failed properly to create

any issue as to their adverse claim. Without seeking amendment of their pleadings in the trial

court, this appeal from judgment has been taken by appellants.

Before this court, opening and answering briefs having been filed, appellants neglected to

file any reply brief. After 72 days had passed respondents moved to dismiss the appeal upon

the ground that it had been abandoned. This motion we denied, deferring until final

submission of the appeal any examination of the issues presented by the briefs. Appellants

were regarded as having waived right to file a written reply and the matter was thereupon set

for oral argument. Counsel have now waived oral argument and stipulated that the matter be

submitted upon the opening and answering briefs.

In justification of the action of the trial court, the contentions of respondents as expressed

in answering brief appear to have merit and to be supported by authority. Such contentions

and supporting authority in substantial part were not anticipated in appellants' opening brief

and now stand unchallenged. Under the circumstances such lack of challenge cannot be

regarded as unwitting and in our view constitutes a clear concession by appellants that there is

merit in respondents' position.

Upon the briefs of counsel, then, no material controversy upon the law has been presented

for us to resolve and we shall not conduct an independent search to determine whether, upon

any point of law, respondents' position might validly have been disputed by appellants.

Appeal dismissed with costs to respondents.

____________

��71 Nev. 73, 73 (1955) Tanner Motor Tours v. Brown��

TANNER MOTOR TOURS OF NEVADA, Ltd., a Nevada Corporation, Appellant, v. T.N.

BROWN, dba YELLOW CAB COMPANY, LEE SPEIRS, dba BOULDER CAB

COMPANY, and JOHN DOE NO. 1 Through 45, BRIGG SHAW, and ESTATE OF C.W.

LANE, Respondents.

No. 3811

February 16, 1955. 280 P.2d 291.

Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,

Department No. 2.

Action to enjoin defendants, public carriers, from soliciting business at public airport in

violation of exclusive right granted plaintiff, public carrier, by county, and for damages. A

motion to dismiss was granted and plaintiff appealed. The Supreme Court, Badt, J., held that

under Uniform Municipal Airports Act providing for repeal of all acts or parts of acts

inconsistent therewith and granting to counties, operating an airport, authority to execute

contracts conferring privilege of supplying services at such airport, neither contract executed

by county commissioners granting to plaintiff exclusive privilege of providing ground

transportation from airport for five years, with renewal option, nor act of county

commissioners authorizing same was void by reason of statute providing that no member of

board of county commissioners shall vote on contract extending beyond his term of office.

Reversed and remanded.

John H. McNamee and Jones and Pursel, all of Las Vegas, for Appellant.

Harry E. Claiborne and Jones, Wiener & Jones, all of Las Vegas, for Respondents.

1. Counties. Both language of Uniform Municipal Airports Act providing for repeal of all acts or parts of acts

inconsistent therewith, and practical consideration of nature of operation concerned ��*��B�3�C�!&0$�!&0&�@��


established clear intent of legislature to relieve counties operating an airport of restrictions of statute

providing no county commissioner shall vote on contract extending beyond his term of office.

N.C.L.1943-1949 Supp., secs. 293.27, 293.33, 293.34, 293.38, 293.49; N.C.L.1929, sec. 1973.

2. Counties. Neither contract executed by county commissioners granting to plaintiff, public carrier, exclusive

privilege of providing ground transportation from airport for five years, with renewal option, nor act of

county commissioners authorizing contract was void by reason of statute providing that no county

commissioner shall vote on contract extending beyond his term of office. N.C.L.1943-1949 Supp., secs.

293.27, 293.33, 293.34, 293.38, 293.49; N.C.L.1929, sec. 1973.

OPINION


The question presented for determination by this appeal is whether the provisions of sec.

1973, N.C.L. 1929, prohibiting any member of a board of county commissioners from voting

on a contract extending beyond his term of office invalidated a contract between Clark

County and appellant granting the latter the exclusive right to solicit ground transportation

business inside the terminal or administration building at the county's airport, and exclusive

parking places at such terminal. The question is further narrowed to a determination of

whether the uniform Municipal Airports Act, adopted by the Legislature of Nevada in 1947,

amended or superseded sec. 1973 in the matter of the county's contracts conferring privileges

of this nature.

Clark County, owning and operating a public airport some four miles south of the city of

Las Vegas, called the Clark County Public Airport, had, as lessor, on November 12, 1948,

entered into contracts of lease with Transcontinental & Western Air, Inc., United Air Lines,

Inc., Western Air Lines, Inc. and Bonanza Airlines, Inc., respectively. These leases had to do

with the rights of the respective lessees to use the airport for the landing and taking off of

airplanes. In such leases the county �� C��D��


covenanted to make adequate and reasonable arrangements by contract, franchise or

otherwise with one or more public carriers necessary to supply ground transportation service

to the passengers of the lessees from the airport to the city of Las Vegas and environs, and

from such points to the airport. The county agreed that the services for such ground

transportation should be rendered at reasonable rates and charges, that the carriers be required

to give prompt, courteous and efficient service, etc. One month later, under date of December

28, the county entered into the contract herein involved with Tanner Motor Tours of Nevada,

Ltd., under which the latter agreed to be bound by the county's covenants with the air lines

companies, and in particular, to furnish limousine service to the patrons and passengers of the

airport, to provide ground transportation to them and their baggage, to have such service

immediately available to all such air passengers at all times of the day or night, to respond

promptly to all calls for service, to have its cars neat and clean and in excellent running

condition, to furnish them with competent and experienced licensed drivers, neat, clean,

courteous and efficient, which said drivers should observe all traffic laws and regulations and

drive with due caution to afford maximum safety and comfort to passengers, to have

sufficient cars or limousines available to accommodate the number of persons requiring

transportation, and likewise to supplement their service in case of unusual congestion of

flights, etc. Under the contract the county in turn granted the appellant the exclusive right to

solicit business inside the terminal or administration building and on the ramp in front of the

building, and agreed to prohibit other taxicab companies from soliciting business inside or

immediately in front of the building. The county further granted appellant the exclusive right

to park its cars in the area immediately in front of the building, and agreed to restrict other

taxicabs or limousines from parking ��


within the area, which was specifically defined. Appellant also agreed to furnish U-Drive

cars, sight-seeing buses, etc. to such extent as reasonably necessary to meet the demand

therefor. For the privileges granted, appellant agreed to pay the county $300 a month or 10

percent of its gross receipts for such transportation service, whichever sum was greater. It

also agreed to pay the county $25 a month for desk space, telephone privileges etc. in the

administration building.

The term of the agreement was from January 1, 1949, to December 31, 1953, a period of

five years, with an option to appellant to renew the agreement for an additional five years on

sixty days' written notice. Such term extended beyond the term of office of all of the

commissioners of Clark County voting for the authorization of the execution of the contract.

Appellant commenced its action in the court below against the respondents to enjoin their

soliciting of business and to enjoin their parking of their vehicles in violation of the exclusive

rights granted appellant by the county, and for damages. The district court granted a motion to

dismiss the action for plaintiff's failure to state a claim upon which relief could be granted,

N.R.C.P. 12(b) (5), on the ground that the contract on which the plaintiff relied was

prohibited by our statute.

Section 1973, N.C.L. 1929, reads as follows: “No member of any board of county

commissioners within this state, shall be allowed to vote on any contract which extends

beyond his term of office.” Such statute was adopted by the legislature of this state in 1895,

when air transportation was an unknown art. In 1937 the legislature added to the purposes for

which the right of eminent domain might be exercised, the acquisition of airports, air

navigation facilities and aerial rights of way. In the same year, by another act, the legislature

fixed the procedure whereunder air transportation companies could acquire real property for

airports, etc. In 1945 the legislature authorized county commissioners to lease county

properties to others for not to exceed twenty ��


years upon published notice, directly repealing, so far as in conflict, the restrictions of sec.

1973 N.C.L. These legislative acts do not concern us in this appeal but are of historical

interest only. In 1947, Nevada adopted the uniform Municipal Airports Act. Sections

293.20-293.49, N.C.L. 1943-1949 Supp. The broad scope of the act may be seen from its

title, which is:

“An Act relating to aeronautics; providing for acquisition, construction, maintenance,

operation, and regulation by municipalities and counties of airports and air navigation

facilities within or without the state, and declaring such to be a public purpose; authorizing

eminent domain proceedings; providing tax exemptions for municipal airports and income

thereof; authorizing leasing of airports, supplying of services in airport operation, and liens to

secure payment thereof; granting extra territorial jurisdiction; authorizing penalties for

violation of municipal ordinances and regulations; providing for appropriations, levying of

taxes, issuance of bonds, and acceptance of federal and state aid; validating prior acquisitions,

actions and bond issues; authorizing joint action by municipalities and other public agencies;

providing for mutual aid between municipalities; and to make uniform the law with reference

to public municipal airports.”

Section 8 of the act, being sec. 293.27, N.C.L. 1943-1949 Supp., reads as follows:

“In operating an airport or air navigation facility owned, leased, or controlled by a

municipality [defined to include county], such municipality may, * * * enter into contracts,

leases, and other arrangements with any persons.

“(a) Granting the privilege of using or improving such airport or air navigation facility or

any portion or facility thereof, or space therein for commercial purposes;

“(b) Conferring the privilege of supplying goods, commodities, things, services or

facilities at such airport or air navigation facility; or 2:�;�/��


“(c) Making available services to be furnished by the municipality or its agents at such

airport or air navigation facility.

“In each case the municipality may establish the terms and conditions and fix the charges,

rentals or fees for the privileges or services, which shall be reasonable and uniform for the

same class of privilege or service and shall be established with due regard to the property and

improvements used and the expenses of operation to the municipality.”

Section 293.38, id., reads as follows: “A municipality may enter into any contracts

necessary to the execution of the powers granted it, and for the purposes provided by this

act.” Section 293.49, id., repeals all acts or parts of acts inconsistent with the provisions of

the act.

[Headnote 1]

In our opinion both the language of the act and a practical consideration of the nature of

the operation concerned serve to establish the clear intent of the legislature in connection with

such operations to relieve the operating municipalities from the hampering restrictions of sec.

1973. We cannot reasonably credit the legislature with intent to limit within the brief period

of a county commissioner's term of office the extent of a contract governing the extensive and

complex operations involved in operating a municipal airport.

In many respects the act itself is wholly inconsistent with such an intent. We note the

definite grant of authority in sec. 293.27 above quoted authorizing a contract precisely such as

the one here involved and also authorizing a county to “establish the terms and conditions”

thereof. We note, too, the repealer clause and the section authorizing contracts necessary to

the execution of the powers granted and for the purposes provided in the act.

Three other sections might also be mentioned in this respect. Section 14 of the act, sec.

293.33, N.C.L. 1943-1949 Supp., authorizes municipalities and counties to issue long-term

bonds whose proceeds may be used for acquisition, construction, development and equipping

of ��@��"&$�$0 �� *��2��9��+�+�+�-�@��"&$�0( �� 9��2��+�+�+�-


airports. Section 293.34, id., validates bonds theretofore issued and ratifies and validates the

execution of leases and contracts which “would have been authorized had this act been in

effect at the time * * *.” Section 293.40, id., authorizes agreements between two or more

public agencies pursuant to concurrent ordinances or resolutions of their respective bodies for

the general purposes of the act and provides that “each such agreement shall specify its

duration

* * *.”

[Headnote 2]

While it may properly be said that the salutary purpose of sec. 1973 was clear in order to

prevent fraud and favoritism, it is just as clear that in enacting the uniform Municipal

Airports Act the legislature, in realistic appreciation of the necessities and requirements of

modern air transportation, recognized that sec. 1973 should not apply. We therefore hold that

section to have been repealed by the uniform Municipal Airports Act insofar as it may be held

to concern the activities covered by that act.

The district court's dismissal of the action because the contract on which the county

commissioners voted extended beyond their term of office, was based upon its conception of

the nature of the function contemplated by the county's contract with appellant—a subject

which we find it unnecessary to discuss. Nothing in the record indicates that the 1947

Municipal Airports Act was ever presented to the district court. It is not even mentioned in

the opinion of the learned district judge.

As the contract pleaded by the appellant was authorized by the Act of 1947, which

repealed all parts of sec. 1973 inconsistent therewith, it follows that neither the contract nor

the act of the county commissioners authorizing the same was void by reason of the

limitations of sec. 1973. It was therefore error to dismiss the action on account of the

limitations of said statute.

The judgment is reversed with costs, and the case remanded for further proceedings.


____________

��71 Nev. 80, 80 (1955) Closset v. Closset��

ANDRE PIERRE CLOSSET, Appellent, v. PAULA

DECLERCQUE CLOSSET, Respondent.

No. 3789

February 18, 1955. 280 P.2d 290.

Appeal from Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,

Department No. 2.

Divorce action by husband against wife. From a decree adverse to plaintiff, he appealed.

Defendant moved to dismiss appeal. The Supreme Court, Merrill, C. J., held that where

plaintiff, against whom adverse order had been entered in divorce action, had failed to

comply with direction of trial court and had been adjudged guilty of contempt and could not

be found and refused to disclose his whereabouts, his appeal would be dismissed on

defendant's motion unless plaintiff responded to trial court's process within 30 days.

On motion to dismiss: Ordered that appellant submit himself to process of the

district court or suffer dismissal of appeal.

Maurice J. Sullivan, Jr., of Reno, for Appellant.

Adams, Furrh & Reed, of Reno, for Respondent.

1. Appeal And Error. Where plaintiff, against whom adverse order had been entered in divorce action, had failed to comply

with direction of trial court and had been adjudged guilty of contempt and could not be found and refused

to disclose his whereabouts, his appeal would be dismissed on defendant's motion unless plaintiff

responded to trial court's process within 30 days. Rules of Civil Procedure, rules 70, 73(d) (3).

2. Appeal And Error.

One seeking aid of courts should remain, throughout course of such proceeding, amenable to all judicial

process of state which may issue in connection with such proceeding.

OPINION


This matter is before us upon motion of respondent ��


to dismiss the appeal. Grounds for the motion are that appellant has failed to comply with

orders entered in this case by the trial court and, in consequence, has been held and is now in

contempt of the trial court and a fugitive from its process.

The suit below was brought by appellant husband for divorce from respondent wife.

Divorce in his favor was granted by the trial court July 21, 1953. The decree awarded to the

wife specific real property located in Brussels, Belgium and specific corporate stock and

directed the husband to execute in favor of the wife a deed to the realty and a written transfer

of the stock within ten days from the date of judgment. Aggrieved by this action of the trial

court the husband has taken this appeal from that portion of the decree.

The husband has never complied with the direction of the trial court. On October 15, 1953

that court ordered him to show cause why he should not be held in contempt. Upon his failure

to appear the trial court adjudged him guilty of contempt and issued a bench warrant for his

arrest. The husband cannot now be found and refuses to disclose his whereabouts. For this

reason the warrant has never been served. To all intents and purposes, so far as concerns the

process of the trial court, the husband is in hiding and a fugitive and has placed himself

beyond the reach of such process.

Rule 70, N.R.C.P., provides for the manner in which a judgment directing execution or

delivery of deeds or other documents may be enforced by court action. It expressly provides

among other methods that the court may adjudge the party in contempt.

Rule 73 (d) (3) N.R.C.P. provides for the manner in which a party may protect himself

against the enforcement of such a judgment pending appeal. It provides that “the instrument

shall be executed and deposited with the clerk of the court with whom the judgment or order

is entered to abide the judgment of the appellate court” and that supersedeas bond shall be

given. The husband has not secured a stay of execution pursuant to this rule.


Enforcement under Rule 70 was, therefore, available to the trial court.

The husband points out that he is not in contempt for failure to obey a final and proper

order of the trial court supplemental to the action sought to be reviewed. He is in contempt

for failure to comply with the very order which, by his appeal, he challenges as improper. He

contends that should we dismiss his appeal for the reason that he is now in contempt we

would in effect be requiring him, as a condition to maintaining his appeal, to satisfy the very

judgment from which he is appealing. Cf. National Union of Marine Cooks & Stewards v.

Arnold, 348 U.S. 39, 99 L.Ed......, 75 S.Ct. 92. He contends that the availability of

supersedeas does not alter the situation since supersedeas should not be made a condition of

the right of appeal but should remain the option of the appellant.

[Headnote 1]

We need not and do not decide whether such contentions in a proper case would have

merit. An additional factor, here involved, in our view warrants dismissal of the appeal:

appellant husband is now a fugitive from process of the trial court. We shall not permit him to

avail himself of judicial review while at the same time he places himself beyond reach of the

process of the trial court in defiance of its attempts to enforce its judgment. Knoob v. Knoob,

192 Cal. 95, 218 P. 568; MacPherson v. MacPherson, 13 Cal.2d 271, 89 P.2d 382; Tobin v.

Casaus, Cal.App., 275 P.2d 792; Casebolt v. Butler, 175 Ky. 381, 194 S.W. 305; Henderson

v. Henderson, 329 Mass. 257, 107 N.E.2d 773; Friendly v. Friendly, 137 Ore. 180, 2 P.2d 1.

Indeed this court could hardly be expected to undertake review while the appellant thus

defiantly reserves to himself the power to escape the reach of the law and thus render wholly

ineffectual any adverse determination we might make.

[Headnote 2]

This court, then, is not itself demanding satisfaction of judgment; nor is it lending its own

powers to enforce ��


immediate compliance with the judgment from which this appeal is taken. For the purposes of

this case we leave with the trial court its function of enforcement pending appeal. We do but

insist that one seeking the aid of the courts of this state should remain, throughout the course

of such proceeding, amenable to all judicial process of the state which may issue in

connection with such proceeding. As stated in Knoob v. Knoob, supra, “By her appeal she is

seeking the court's aid, and it is manifestly just and proper that in invoking that aid she should

submit herself to all legitimate orders and processes.”

It is ordered that, as a condition to maintaining this appeal, appellant submit himself to the

process of the trial court or, at his option, avail himself of the right of supersedeas. Should he

fail to take such action within 30 days from date, the motion to dismiss will be granted.


____________________

(Reporter's note: Order of the Court was issued March 21, 1955, dismissing the foregoing appeal.)

____________

��71 Nev. 84, 84 (1955) Bldg. Trades Council v. Bonito��

BUILDING TRADES COUNCIL OF RENO AND VICINITY, AND INTERNATIONAL

BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION No. 401, Appellants, v.

J.S. BONITO, Respondent.

No. 3815

February 23, 1955. 280 P.2d 295.

Appeal from Second Judicial District Court, Washoe County; Harold O. Taber, Judge,

Department No. 3.

Action by motel owners to enjoin unions from placing name of motel on union's “we do

not patronize list.” A preliminary injunction was granted and the unions appealed. The

Supreme Court, Eather, J., held that where unions' objective in placing name of motel on “we

do not patronize list” was to require motel owners to sign agreement to hire only union

employees, such agreement was not merely an agreement designating union as motel owners'

employment agency, but was an illegal agreement to employ only union labor, and that

placing of motel's name on “we do not patronize list” for such illegal objective could be

enjoined.

Affirmed.


Harry D. Anderson, of Reno, for Appellants.

Springmeyer & Thompson, of Reno, for Respondent.

1. Labor Relations. Labor dispute involving a union and motel owners was in a field not occupied by the federal government,

and state court had jurisdiction over dispute. National Labor Relations Act, sec. 1 et seq. as amended 29

U.S.C.A., sec. 151 et seq.

2. Labor Relations.

The propriety of concerted union activity is to be judged by the lawfulness or unlawfulness of the labor

objective of the union.

3. Labor Relations. To obtain an agreement from an employer to hire only union employees is an unlawful objective of

concerted union activity. St.1953, c. 1, sec. 2.


4. Labor Relations. Proposed agreement between unions and motel owners providing that when motel owners required

craftsmen covered by agreement, motel owners would apply first to unions to supply such craftsmen, and if

union was unable, within 48 hours, to supply such craftsmen motel owners could employ craftsmen of their

choice, would be an illegal agreement to hire union help, and not merely a designation of the union as

motel owners' employment agency. St.1953, c. 1, sec. 2.

5. Labor Relations. Where objective of unions in placing name of motel on “we do not patronize list” was to require motel

owners to sign illegal agreement to hire union help, such objective was unlawful, and placing of motel

name on list for such purpose could be enjoined. St.1953, c. 1, sec. 2.

OPINION

By the Court, Eather, J.

This is an appeal from an order of the district court entered after notice and hearing which

granted a preliminary injunction restraining appellant labor organizations from listing or

continuing to list the name of respondent or respondent's motel property (Harold's Motel), on

any unfair or “We Do Not Patronize List,” by whatever name called, issued or published by

appellants.

Respondent J. S. Bonito, owns and operates Harold's Motel located on U. S. Highway No.

40, west of Reno. The original motel consisted of seven units. In the winter of 1950-1951,

while seven additional units were being constructed by respondent, the motel was placed on

the “We Do Not Patronize List” published and issued by the Building Trades Council of

Reno and Vicinity, after negotiations with respondent conducted by business agents of the

local Carpenters Union and a committee of the council regarding the employment of union

labor, had resulted unsatisfactorily from the point of view of the labor organizations.

Some time in 1953, respondent sought to have an electric neon sign manufactured and

placed on his property ��


to advertise his motel. He testified that none of the companies engaged in such business in

Reno, Nevada, would manufacture and erect the sign, advising him that he was on the “We

Do Not Patronize List.” Thereupon, respondent engaged the Pacific Neon Company of

Sacramento, California, to manufacture and install the sign.

In November 1953, two union employees of the Pacific Neon Company transported the

prefabricated sign from Sacramento to Harold's Motel. Before commencing installation, they

communicated with the business agent of the Electrical Workers Local, and being informed

that Harold's Motel was listed on the “We Do Not Patronize List,” the employees refused to

erect the sign and returned with the sign to Sacramento.

Respondent and his wife operate and manage the motel and had employed no one since

September 1952. They were employing no one in November 1953.

Our first question is one of jurisdiction. Appellants contend that exclusive jurisdiction

over this controversy is held by the National Labor Relations Board under the provisions of

the National Labor Relations Act, 29 U.S.C.A., secs. 151 et seq. In this connection appellants

rely upon Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, to the effect

that Congress having occupied the field of labor disputes in connection with interstate

commerce, that field is not available to the states.

[Headnote 1]

The question remains, however, whether the labor dispute with which we are here

concerned falls within the field occupied by Congress through the National Labor Relations

Act. The National Labor Relations Board has consistently refused to assert jurisdiction over

the hotel industry. In Hotel Association of St. Louis, (1951), 92 N.L.R.B. 1388, such was the

determination of the board. In its decision and order in that matter the board stated:

“As was said in the majority opinion in the Greenbrier ��EF��?��@��

@��3�� 4'�B�C�G�A��!04#�:!&0&;H �I��3��A��=�� =��!&$' ��


Hotel case [The White Sulphur Springs Company, 85 N.L.R.B. 1486 (1949)], ‘nothing in the

legislative history of the present Act indicates dissatisfaction by the Congress with the

Board's longstanding policy,' running back to 1935, not to assert jurisdiction over hotels. This

interpretation of congressional intent is borne out by the opinion expressed on the floor of the

Senate on August 30, 1949, when, upon questioning by Senator Pepper, Senator Taft said,

without opposition being voiced by any other senator that: ‘* * * The Taft-Hartley law did not

change in any way the language providing for the jurisdiction of the Board, or the general

definition of interstate commerce. * * * It was not my intention in 1947, nor do I believe it

was the intention of other members of the Committee on Labor and Public Welfare, to

broaden or extend the jurisdiction of the Board in that respect. In fact, I feel very strongly that

it should not be done. * * * A hotel performs its service within four walls. It ships nothing

into commerce. It produces no goods for commerce. In my opinion the Act was never

intended to cover the hotel industry. * * *'

“This expression of Senate views coincides exactly with the views set forth by those

members of the House of Representatives who recently had occasion to inquire into and

comment officially upon the same subject.”

Accepting as the intent of Congress the interpretation of the N.L.R.B. itself, the dispute

with which we are here concerned falls within a field which the federal government has

declined to occupy. This being the case, the court below properly exercised jurisdiction.

Our next question is whether the objective of the appellants in placing Harold's Motel on

the “We Do Not Patronize List” was a lawful objective.

[Headnote 2]

That the propriety of concerted union activity is to be judged by the lawfulness or

unlawfulness of the labor objective has been settled by the decisions of this and ��


other courts. Building Trades Council v. Thompson, 68 Nev. 384, 234 P.2d 581, 32 A.L.R.2d

324. Ann. 174 A.L.R. 593. Ann. 32 A.L.R.2d 342.

Basing its findings upon substantial evidence in the record, the trial court found: “When

the manager of the Reno Employers Council discussed with the Business Agent of defendant

Electrical Workers Union, the matter of the refusal of the aforesaid Union workmen to install

the sign on plaintiff's premises, he was informed, in substance, that plaintiff would have to

sign an agreement to hire union help before his name would be removed from the “We Do

Not Patronize List.” And concluded from this finding and others: “The demand that plaintiff,

by oral or written agreement, undertake to hire union employees, is an unlawful objective.”

[Headnote 3]

There can be no doubt but that an agreement by an employer to hire only union employees

has been declared by the people of this state to be an unlawful objective. 1953 Statutes of

Nevada, page 1. (Right to Work Initiative Petition.)

Section 2 of this act provides: “No person shall be denied the opportunity to obtain or

retain employment because of nonmembership in a labor organization, nor shall the state, or

any subdivision thereof or any corporation, individual, or association of any kind enter into

any agreement, written or oral, which excludes any person from employment or continuation

of employment because of nonmembership in a labor organization.”

Section 7 provides: “Any person injured or threatened with injury by an act declared illegal

by this act shall, notwithstanding any other provision of the law to the contrary be entitled to

injunctive relief therefrom.” Local Union No. 10 v. Graham, 97 L.Ed. 946, 345 U.S. 192, 73

S.Ct. 585.

[Headnotes 4, 5]

Appellants insist that the “agreement to hire union help” to which the trial court's findings

refer, was not ��=��


in fact such an agreement but was simply an agreement that respondent designate the union as

respondent's employment agency. We think that this is an unrealistic and unreasonable

interpretation of the agreement referred to. The clause in question reads as follows: “The

employer agrees that when craftsmen covered by this agreement are required, the employer

shall first apply to the union to supply such craftsmen. If the union shall be unable, within 48

hours, to supply such craftsmen, the employer may employ craftsmen from such other source

as he may choose.” By such a provision the employer, in practical effect, agrees that so long

as the union is able to supply craftsmen, he shall employ only union labor. So long as the

union is able to supply craftsmen, then, those not union members would be deprived of

opportunity to obtain employment because of their nonmembership.

It may next be noted that if the 48-hour limitation is valid, a 10-day limitation would

likewise be valid. The employer, under such an agreement, would have to await the

expiration of the specified period before being at liberty to employ craftsmen from other

sources. For an employer to deny employment to a nonunion member is no less a violation of

section 2 of the Right to Work Act of 1953, even though the denial may be limited to a

48-hour period. The expression “No person shall be denied” cannot by construction or

interpretation be read to include a provision that a denial for 48 hours is not a denial.

The unlawfulness of an agreement “which excludes any person from employment”

because of nonunion membership cannot by construction or interpretation be read to mean

that the unlawfulness is cured or waived if the exclusion be limited to a period of only 48

hours.

We agree with the trial court's construction of the agreement as being in violation of

Nevada's right to work act.

The trial court, then, acted with authority in granting ��


a preliminary injunction, and no error has been shown.



____________

��71 Nev. 90, 90 (1955) Ex parte Sullivan��

In the Matter of the Application of JOHN JOSEPH

SULLIVAN for a Writ of Habeas Corpus.

JOHN JOSEPH SULLIVAN, Appellant, v. C.W.

YOUNG, Sheriff of Washoe County, Respondent.

No. 3849

March 16, 1955. 280 P.2d 965.

Appeal from the Second Judicial District Court, Washoe County; Harold O. Taber, Judge,

Department No. 3.

Habeas corpus proceeding. The petitioner had been held to answer on charge of burglary

following preliminary hearing in justice court. The district court denied writ and petitioner

appealed. The Supreme Court, Eather, J, held that under statute precluding conviction of one

charged with public offense on uncorroborated testimony of an accomplice, where only

evidence presented at preliminary hearing by state had been the uncorroborated testimony of

an accomplice, justice of peace was without authority, as matter of law, to bind over

defendant for trial before District Court.


Samuelson and Johnson, Reno, for Appellant.

Harvey Dickerson, Attorney General and A. Dyer Jensen, District Attorney Washoe

County, for Respondent.

1. Criminal Law. Statute which precludes conviction of one charged with public offense on uncorroborated testimony of an

accomplice applies not only to trial but to preliminary hearing as well. N.C.L.1929, sec. 10978.


2. Constitutional Law. Under statute precluding conviction of one charged with public offense on uncorroborated testimony of

an accomplice, where Supreme Court has construed the statute to extend to preliminary hearings and such

construction has remained law of state since 1915, undisturbed by legislative act, re-examination of law

should be by legislative rather than judicial act. N.C.L.1929, sec. 10978.

3. Criminal Law. Under statute precluding conviction of one charged with public offense on uncorroborated testimony of

an accomplice, where the only evidence presented at preliminary hearing by state had been the

uncorroborated testimony of an accomplice, justice of peace was without authority, as a matter of law, to

bind over defendant for trial before district court. N.C.L.1929. sec, 10978.

OPINION


This is an appeal from an order of the Second judicial district court of the State of Nevada

in and for the county of Washoe, denying a writ of habeas corpus.

Following a preliminary hearing in the justice court of Reno Township the petitioner was

held to answer on a charge of burglary. An information had been filed in the district court and

the petitioner petitioned the court for a writ of habeas corpus, contending that he was

committed without reasonable or probable cause.

The court below found that the only evidence at the preliminary hearing was the testimony

offered by one Conrad Chapman; that this testimony, together with the information on file

charging Chapman with the same offense, left no doubt that Chapman was an accomplice of

the petitioner; that there was no evidence or testimony to corroborate the testimony of the

accomplice.

The sole point involved in this appeal is the authority, as a matter of law, of a justice of the

peace to bind over a defendant for trial before the district court when the only evidence

presented at the preliminary, by the state, is the uncorroborated testimony of an accomplice.


Section 10978, N.C.L. 1929, precludes conviction of one charged with a public offense on

the uncorroborated testimony of an accomplice. The statute 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.”

[Headnote 1]

The petitioner bases his right to the granting of a writ of habeas corpus upon the case of In

Re Oxley and Mulvaney, 38 Nev. 379, 149 P. 992. That case clearly holds that the statutory

requirement that testimony of an accomplice be corroborated, applies not only to trial but to a

preliminary hearing as well.

The state first contends that In Re Oxley and Mulvaney is distinguishable from the case at

bar for the reason that in that case there were two preliminary hearings and the testimony at

those hearings was inconsistent. The case cannot be distinguished upon that ground. This

court there stated, “There is no corroboration whatever of the testimony given by the witness

Madden, and the question is squarely presented whether the uncorroborated testimony of an

accomplice can make out sufficient probable cause to support an order holding a defendant to

answer.” There can be little doubt that this question, so stated and so “squarely presented”

was the question which the court intended to answer.

[Headnotes 2, 3]

The state next contends that In Re Oxley and Mulvaney is bad law and is today contrary to

the weight of authority and should therefore be re-examined.

This court has ever been reluctant to depart from the doctrine of stare decisis. Stocks v.

Stocks, 64 Nev. 431, 183 P.2d 617. By sec. 10978, N.C.L., the legislature has ��


established the policy of the state as to the quantum of proof required in certain instances

before conviction may be had. By the Oxley and Mulvaney case this court has construed that

expression of policy to apply as well to preliminary hearings. Such construction has remained

the law of this state since 1915, undisturbed by legislative act. Under these circumstances, if

re-examination is now to be had it should, we feel, be by legislative rather than judicial act.

Jensen v. Reno Central Trades and Labor Council, 68 Nev. 269, 229 P.2d 908.

Reversed and remanded with instructions that the writ of habeas corpus issue as prayed

and that petitioner be discharged from custody. Let remittitur issue forthwith.


____________

��71 Nev. 93, 93 (1955) Saltzman v. McCombs��

B.A. SALTZMAN, Appellant, v. ROBERT McCOMBS, and ALMA McCOMBS,

Respondents.

No. 3813

March 23, 1955. 281 P.2d 394.


Department No. 3.

Action by house purchasers against house construction contractor for return of $1,000

down payment which had been made by purchasers to contractor, under verbal agreement for

construction of house, before execution of escrow instructions which provided that moneys

paid contractor were to be returned to purchasers should purchasers' FHA loan application be

disapproved. From a judgment adverse to contractor, contractor appealed. The Supreme

Court, Eather, J., held that purchasers, who were unable to obtain the loan, were entitled to

recover the $1,000 paid.

Affirmed.


David Zenoff, and Calvin C. Magleby, Las Vegas, for Appellant.

G. William Coulthard, and Alvin N. Wartman, Las Vegas, for Respondents.

1. Vendor and Purchaser. Where escrow instructions, which were given by house construction contractor and purchasers from

contractor, were only written agreement between contractor and purchasers and provided that, in event

purchasers' FHA application should not be approved, any moneys paid contractor should be returned to

them, upon inability to secure FHA loan, purchasers were entitled to recover the $1,000.

2. Vendor and Purchaser. In action by house purchasers against house construction contractor for return of $1,000 down payment

which was made by purchasers to contractor, under verbal agreement for construction of house, before

execution of escrow instructions which provided that moneys paid contractor were to be returned to

purchasers should purchasers' FHA loan application be disapproved, evidence was not sufficient to

establish that purchasers had failed to make bona fide attempt to secure the financing.

3. Vendor and Purchaser. Under escrow instructions, which constituted only written agreement between house construction

contractor and house purchasers, and which provided that moneys paid contractor were to be returned to

purchasers should FHA loan application be disapproved, even if purchasers' failure to make formal written

application for FHA loan constituted breach of such agreement, such breach would be wholly immaterial,

in view, of fact that purchasers had been informed by FHA representative that such application, if made,

would be rejected.

OPINION


Plaintiffs Robert McCombs and Alma McCombs instituted this suit against the defendant,

B. A. Saltzman, based upon the fact that between March 1, 1953 and June 18, 1953, plaintiffs

paid to defendant the sum of $1,000 as part payment under a verbal agreement whereby the

defendant, B. A. Saltzman, undertook the construction of a home for the plaintiffs at the

agreed purchase price of $15,500.


Thereafter, and on March 18, 1953, the sole and only written agreement between the

parties was executed in the form of escrow instructions to the Pioneer Title Insurance and

Trust Company of Las Vegas. The instructions contained express provisions that the balance

of the purchase price was to be paid when the FHA application was approved, and in the

event that the purchasers' application should for any reason not be approved, then any moneys

paid to the seller, either direct or through the escrow, should at the option of the purchasers be

returned to them and the escrow canceled.

Sometime between March 18, 1953 and June 18, 1953, Alma McCombs, one of the

plaintiffs herein, approached the local FHA office in Las Vegas, Nevada, with an inquiry as to

the necessary prerequisites for the securing of an FHA loan. On or about the l3th day of June,

1953, the plaintiffs herein contacted Mr. P. S. Rhodes, assistant vice-president of the Bank of

Nevada, in Las Vegas, in regard to securing an FHA loan. On June 17, 1953, they notified

defendant that they were unable to secure a loan and demanded the return of the $1,000

deposit from the defendant. This demand was refused and plaintiffs commenced this action.

Judgment was entered in their favor and defendant has taken this appeal.

[Headnote 1]

Clearly the inability of respondents to secure a loan would relieve them from performance

and entitle them to the return of their deposit.

“The contract made between the litigants was based upon a suspensive condition and the

plaintiff's obligation to purchase did not come into existence until the happening of the event

on which the offer was conditioned. As he was unable to obtain a loan, plaintiff's obligation

has not come into existence and he is at liberty to withdraw and to require that his deposit be

returned to him. The agreement to sell and purchase was conditioned upon plaintiff obtaining

a loan. The condition is clearly stated on the reverse side of the check and the ��


evidence sustains it. It was for cash. The plaintiff made a diligent effort to comply with the

suspensive condition.” McPherson v. Warren, 55 So.2d 30, at page 33. To the same effect,

Johnson v. Graham et al., 40 So.2d 500, 502.

[Headnote 2]

It is the contention of the appellant that the respondents failed to conform to the terms of

the agreement, in that they failed to make a bona fide attempt to secure said financing. We

feel there is no merit in this contention.

Mr. P.S. Rhodes, assistant vice-president of the Bank of Nevada, in charge of the real

estate loan department, testified in part as follows:

“Q. What did Mr. McCombs contact you about that morning? A. As I recall, he had been

somewhere to apply for an FHA loan, and had been told that he wouldn't qualify under FHA

requirements, and he came in and asked me what I thought about it. I questioned him about

his employment, income and obligations, and judging from the information he gave me at that

time I agreed that under the FHA regulations in effect at that time, he wouldn't qualify, and

there was no use to put in an application.

“Q. Did you put these ideas in written form? A. Yes, at his request. It is a little unusual

request, but we have a lot of unusual requests, so I did.

“Q. Did you give him the original of this written form? A. I think I handed it to him at the

time.”

The following is a copy of the letter above referred to and introduced in evidence as

plaintiff's exhibit No. 4.

“Bank of Nevada, Main Office, Las Vegas, Nevada. June 13, 1953.

“Mr. and Mrs. Robert McCombs

“321 South Main Street

“Las Vegas, Nevada.


“Dear Mr. and Mrs. McCombs:

“In reply to your request for financing the purchase of a home, in view of the instability of

your employment and income, we regret that we cannot approve your application at this time.

“We would be happy to reconsider the application at a later date after the permanency of

your employment can be established.

“Very truly yours,

“/s/ P. S. Rhodes,

“Assistant Vice-President.”

According to the testimony of Robert McCombs he had heard that Mr. Rhodes at the bank

was an FHA representative and handled FHA loans. This in fact appeared to be the situation,

though Mr. Rhodes described a preliminary screening process through a broker, followed by

the bank's own opinion as to whether the applicant could qualify. The bank made very few

loans without an FHA commitment.

[Headnote 3]

Appellant claims that respondents were guilty of breach of contract in failing formally to

apply in writing for an FHA loan. Respondents claim, in part, that there was no such express

agreement. There may well be doubt upon this point. However, even accepting that there was

an express promise on the part of respondents to make formal written application for an FHA

loan, and accepting that this was not done, still under the facts of the case such breach was

wholly without consequence. The record demonstrates that had application been made it

would have been rejected. It is clear that the respondents were so advised by a representative

of the FHA, and were so advised in writing by the bank to which they did, in truth, apply for a

loan. We are left with the conclusion that had the formal written application been made, the

situation would not have been changed in the slightest and the same result would have

followed.


Under these circumstances this breach, if it be regarded as one, is wholly immaterial.

For the reasons assigned the judgment appealed from is affirmed at appellant's cost.

Merrill C. J., and Badt J., concur.

____________

��71 Nev. 98, 98 (1955) State Ex Rel. Sollars v. District Court��

THE STATE OF NEVADA, on the Relation of DALE EUGENE SOLLARS (through his

attorney, Bert Goldwater), Relator, v. THE EIGHTH JUDICIAL DISTRICT COURT OF

THE STATE OF NEVADA, in and for the COUNTY OF CLARK, in Department No. 3

Thereof, and THE HONORABLE RYLAND G. TAYLOR, Judge Thereof, Respondents.

No. 3850

March 25, 1955. 281 P.2d 396.

Mandamus to the respondent district court and presiding judge thereof to require

respondents to proceed with the trial of the case of The State of Nevada v. Dale Eugene

Sollars.

The Supreme Court, Badt, J., held that where accused, who had been found by jury to be

insane for purposes of trial, was certified sane by hospital superintendent, in accordance with

statutory procedure, district court had duty to proceed with trial, and mandamus lay to compel

trial.

Writ issued.

Bert Goldwater, of Reno, for Relator.

George M. Dickerson, District Attorney, Las Vegas, for Respondents.

Harvey Dickerson, Attorney General, and W.T. Mathews, both of Carson City, amici

curiae.


1. Mental Health. Accused who had been adjudged insane by jury could be held sane for purposes of trial through ex parte

conclusion of Superintendent of State Hospital, without a judicial restoration to sanity. N.C.L.1929, secs.

11183 to 11185, 11187, 11188, 11190.

2. Constitutional Law; Mental Health. Returning an accused, who had been judicially determined insane, for trial upon ex parte certification of

sanity by hospital superintendent did not render statutes providing for such procedure violative of due

process. N.C.L.1929, secs. 11183 to 11185, 11187, 11188, 11190.

3. Criminal Law. Court could not presume intellectual dishonesty as governing official actions.

4. Criminal Law. Possibility that returning of an accused, who had been found insane by jury, for trial on ex parte

certification of hospital superintendent might be followed by another jury's determination that accused was

insane and his recommitment to hospital did not require that statute providing for such procedure be

interpreted as requiring that there be judicial determination of sanity before trial. N.C.L.1929, secs. 11183

to 11185, 11187, 11188, 11190.

5. Mental Health. Statutes relating to insane and incompetent persons with their provision for judicial restoration of sanity

are distinct from proceedings relating to determination of an accused's sanity for purpose of trial, and

requirement of judicial restoration of sanity did not carry over into the criminal statutes. N.C.L.1929, secs.

11183 to 11185, 11187, 11188, 11190.

6. Mandamus; Mental Health. Where accused, who had been found by jury to be insane for purposes of trial, was certified sane by

hospital superintendent, in accordance with statutory procedure, district court had duty to proceed with

accused's trial, and mandamus lay to compel trial. N.C.L.1929, secs. 11184, 11185.

OPINION


The briefs on file and the oral arguments of counsel for the respective parties and amici

curiae indicate conflicting views, and consequently the necessity for clarification by this

court, of the meaning and effect of our statutes governing the inquiry into the insanity of a��


person charged with crime, his commitment to the hospital for mental diseases, suspension of

proceedings against him during such commitment, his detention there until he becomes sane

and the transfer of his custody, after he becomes sane, to the sheriff for trial or judgment, as

the case may be. The applicable sections of N.C.L. 1929 are quoted in the margin. 1 As will

be hereinafter noted, the particular section requiring clarification is sec. 11190.

An information was filed against Sollars in the Eighth judicial district court, Clark County,

Nevada, October 29, 1953, charging him with murder on October 15, 1953. Thereafter a

doubt having arisen as to the defendant's sanity, a jury trial was ordered by the court and the

jury found Sollars to be insane for the purpose of standing trial. The court thereupon

committed him to the hospital for mental diseases at Sparks, Washoe 3�� B�� 2�� 3��3�� B�� 3��3�� B�� 3��3�� B�� -

____________________

1

Sec. 11183. “An Act done by a person in a state of insanity cannot be punished as a public offense, nor can

a person be tried, adjudged to punishment, or punished, for a public offense, while he is insane.”

Sec. 11184. “When an indictment or information is called for trial, or upon conviction the defendant is

brought up for judgment, if doubt shall arise as to the sanity of the defendant, the court shall order the question

to be submitted to a jury that must be drawn and selected as in other cases.”

Sec. 11185. “The trial of the indictment or information, or the pronouncing of the judgment, as the case may

be, shall be suspended until the question of insanity shall be determined by the verdict of the jury.”

Sec. 11187. “If the jury find that the defendant is sane, the trial of the indictment or information shall

proceed, or judgment may be pronounced, as the case may be.”

Sec. 11188. “If the jury find the defendant insane, the judge shall order the sheriff to forthwith convey him,

together with a copy of the complaint, the commitment, and the physicians' certificate, if any, to the hospital for

mental diseases; provided, the court deems his freedom a menace to public quietude. Proceedings against the

defendant must be suspended until he becomes sane.”

Sec. 11190. “If the defendant be received into the state hospital for mental diseases he must be detained

there until he becomes sane. When he becomes sane, notice must be given to the sheriff and district attorney of

the county of that fact. The sheriff shall thereupon without delay, take the defendant and place him in proper

custody, until he be brought to trial or judgment, as the case may be, or be otherwise legally discharged.”


County, Nevada, “in charge of the superintendent thereof, as the law requires, and that he be

detained until he shall become sane, and when be becomes sane, notice shall be given to the

sheriff and district attorney of Clark County, Nevada, and he shall thereupon be delivered to

the sheriff of Clark County, Nevada, without delay, and there detained in the custody of the

said sheriff of Clark County, Nevada, until he shall be brought to trial upon the charge now

pending against him, or otherwise legally discharged.” It may be observed that this order

closely followed the wording of sec. 11190. On September 4, 1954 Dr. S. J. Tillim,

superintendent of the hospital, gave notice in writing to the district attorney and to the sheriff

of Clark County that Sollars had become sane and called attention to the court's order of

December 11, 1953 that Sollars should therefore be delivered to the sheriff and detained in

the latter's custody until brought to trial or legally discharged. 2 The sheriff refused to accept

custody and the district attorney refused to pursue the prosecution. Sollars, through his

attorney, moved the district court on notice, on November 10, 1954, for an order setting the

case for trial. The motion was supported, among other things, by the written notices from the

superintendent of the hospital to the sheriff and district attorney, the affidavit of the

superintendent and the affidavit of an independent psychiatrist. It was based upon the ground

that the district attorney refused to bring Sollars to trial on the issue of his guilt or innocence

in contravention of the earlier order of the court and in contravention of his constitutional

right to a speedy trial. The court denied the motion, 3 and relator filed the ��B��"" �!&'0�

____________________

2

The written notices from Dr. Tillim to the district attorney and the sheriff reported that an opinion had been

obtained from the attorney general as to the meaning of the word “sane” as used in sec. 11190 and that the same

meant: “When he has so far recovered as to appreciate the nature of the criminal proceedings against him and

can assist in his defense in a rational manner.” This definition is not challenged by either party.

3

In the oral argument the district attorney contended that the


present petition for a writ of mandamus on November 22, 1954. Thereafter briefs were filed

and the petition orally argued and submitted February 25, 1955.

Relator states his position simply. He says that this is a proceeding to start in motion the

wheels of justice, which have become clogged in Clark County, to the end that defendant may

have his day in court; that the refusal of the court and its officers to proceed is in direct

violation of the statute, the court's order made pursuant thereto, and the superintendent's

certification of sanity made thereunder. Amicus curiae, the attorney general of the State of

Nevada, and his associate amicus curiae, an attorney who has just retired as attorney general

after serving this state in that capacity for many years, agree with the position taken by relator

and submit to this court their conclusion that the writ of mandamus should issue.

[Headnote 1]

The respondent district judge and the respondent district court, appearing through the

district attorney of Clark County, present the following reasons why the writ should not issue.

It is first contended that since Sollars was adjudged to be insane through the findings of a jury

in a judicial proceeding, he may not be held sane for the purposes of trial through the ex parte

conclusion of the superintendent of the state hospital, but only through a judicial restoration

to sanity. The Supreme Court of California, under constitutional and statutory provisions

similar to our own, has held this contention to be without merit. Gardner v. Jones, 126 Cal.

614, 59 P. 126; In re Buchanan, 129 Cal. 330, 61 P. 1120, 50 L.R.A. 378; People v. Superior

Court, 4 Cal.2d !$# �0 �5�"�� "0,�J*��5��:/��>�� ?��; �$(�3��"�

4$4 �!4#�5�"��!$0�

____________________

motion to set was in any event properly denied because Sollars had not yet been arraigned and that no issue had

been made in the district court. This fact nowhere appears in the record, nor in the return of respondents nor in

the respondents' brief. It is nowhere indicated that it formed any part of the basis of the court's refusal to set the

case for trial. A trial in the district court on the question of the guilt or innocence of Sollars will of course be

preceded by a plea of not guilty.


136, 47 P.2d 724; Ex parte Phyle (Matthews v. Duffy, Warden), 30 Cal.2d 838, 186 P.2d 134.

We agree with the reasoning and the conclusions reached in those cases.

Respondents too rely upon In re Buchanan, supra, and particularly upon the court's

statement in that case that the question of unlawful restraint of the liberty of a citizen is, and

must be as long as our present constitution endures, a judicial question to be determined by

the courts. We do not understand that relator seriously questions such statement. To deny it

would indeed be to deny the right of habeas corpus. But the fact that habeas corpus may lie to

inquire into an alleged unlawful restraint is not determinative of the present issue. In

Buchanan's case the superintendent refused to certify him as sane and refused to surrender his

custody, and habeas corpus afforded the proper remedy. In the instant case the superintendent

certified Sollars as sane and has used every effort to divest himself of his custody and

restraint and to transfer the same to the district court and its officers. Relator has consistently

and repeatedly conceded in his briefs and oral argument the right of the respondent court

again to order a jury inquiry if doubt should arise as to the prisoner's sanity.

[Headnote 2]

It is next contended that a construction of our statute which permits Sollars to be returned

for trial upon the ex parte certification of the hospital superintendent would make the statute

violative of the due process clause of the constitution of the State of Nevada and of the

constitution of the United States. The contention is without merit. Nobles v. Georgia, 168

U.S. 398, 18 S.Ct. 87, 42 L.Ed. 515; Ex parte Phyle, supra. As quaintly remarked by Traynor,

J., speaking for the majority of the court in the latter case [30 Cal.2d 838, 186 P.2d 140],

there is no merit to the contention “that the adjudication that defendant was insane at the time

of his trial gave him a vested right to the status of an insane person.”


[Headnotes 3, 4]

Respondents contend that if upon the superintendent's certification the sheriff must resume

custody and if upon the court's order inquiry by a jury should result in a determination that

Sollars is insane for the purposes of trial and he is again committed to the state hospital, a

circuitous process would occur that might be repeated again and again, and that this danger

can be obviated only by a judicial determination preceding his recommitment to the custody

of the sheriff. The first answer to this contention is that it does not necessarily follow that a

judicial determination would prevent such circuity. Nor can we indulge the presumption that

following the superintendent's determination of sanity, a jury will find contra. Neither can we

indulge the presumption that such circuity will result because of personal or political

differences between the local county officials and the superintendent of the state hospital. As

aptly remarked by counsel in oral argument, we cannot presume intellectual dishonesty as

governing the official actions of any of the officials involved. We may note also that this

contention was rejected in Ex parte Phyle, supra.

[Headnote 5]

Respondents point to our statutory provisions relating to insane and incompetent persons

and urge the necessity of proceeding thereunder to establish a restoration to sanity. The

distinction of such proceedings from the present proceedings under the criminal practice act

is so clear as not to warrant discussion. See People v. Superior Court, supra.

It is next contended that the legislative intent expressed in sec. 11190 for the delivery of

the defendant by the superintendent of the hospital to the sheriff “when he [the defendant]

becomes sane” must necessarily have contemplated a judicial determination of such sanity.

Such contention is without merit. To credit the legislature with an intention that a judicial

proceeding must follow the superintendent's certification of ��


sanity, when it laid down no procedure, no venue, no jurisdiction, no designation of the

parties to such a proceeding, or how, when, where or under what conditions, or in what court

or before whom it should be initiated and conducted, and without even a mention of the

contemplation of such a proceeding is without justification.

[Headnote 6]

Respondents contend that mandamus is not the proper remedy. But if, as is clear from the

views expressed by us, it is the clear, statutory, mandatory duty of the district court to proceed

with the trial of Sollars on the issue of his guilt or innocence in the absence of a doubt that

should promote a further order for a jury inquiry into his sanity, if in short, the district court

wrongfully refuses to accept jurisdiction, then under numerous and consistent holdings of this

court, mandamus is a proper remedy.

We are satisfied that, nothing appearing other than the superintendent's certification that

Sollars is sane for the purpose of trial, under a definition of sanity unopposed by any party to

this proceeding, it is the duty of the respondent court and judge (and the officers of the court

under his and its direction) to proceed without undue delay with the trial of said defendant in

the case of The State of Nevada v. Sollars, unless, under sec. 11184, N.C.L., the court should

order the question of the defendant's sanity again submitted to a jury in which event further

proceedings be had in accordance with the provisions of sec. 11185, N.C.L. et seq.; and that if

arraignment, plea or other proceedings must necessarily be had prior to such trial, the same be

had as provided by law.

It is ordered that the writ of mandamus as prayed for issue forthwith in accordance with

the foregoing opinion.


____________

��71 Nev. 106, 106 (1955) Gattshall v. Sizemore��

J. WAYNE GATTSHALL, Appellant v. WILLIAM

SIZEMORE, Respondent.

No. 3835

March 29, 1955. 281 P.2d 400.

Appeal from judgment of First Judicial District Court, Churchill County, Frank B.

Gregory, Judge.

Action for defendant's malicious prosecution of plaintiff on charge of burglary of

defendant's premises and the stealing therefrom of a saddle. From adverse judgment, the

defendant appealed. The Supreme Court, Badt, J., held that evidence sustained finding of lack

of probable cause and the inference of malice.

Affirmed.

Drendel & Dixon and Charles E. Springer, all of Reno, for Appellant.

Diehl & Recanzone, of Fallon, for Respondent.

1. Malicious Prosecution. In action for defendant's malicious prosecution of plaintiff on charge of burglary, inference of malice was

justified not only by extreme lack of probable cause but also by fact that district attorney refused to advise

the prosecution and justice of peace advised against it.

2. Appeal And Error. In action for defendant's malicious prosecution of plaintiff on charge of burglary wherein defendant who

was called as an adverse witness, was permitted to testify in detail as to contents of letters from sheriff

concerning theft of defendant's saddle, error, if any, denying introduction of letters by defendant was not

prejudicial.

3. Malicious Prosecution. In action for defendant's malicious prosecution of plaintiff on a charge of burglary of defendant's

premises and theft therefrom of a saddle, evidence sustained finding of lack of probable cause and the

inference of malice.

OPINION


This is an appeal from a judgment for plaintiff for damages for defendant's malicious

prosecution of him ��


on a charge of burglary. The main question presented is whether the evidence supports the

trial court's finding of lack of probable cause and its inference of malice.

On Gattshall's criminal complaint Sizemore was arrested on a warrant charging him with

first degree burglary of Gattshall's premises near Fallon, Churchill County, Nevada, and

stealing therefrom a saddle and other personal property. At the preliminary hearing Sizemore

was dismissed. Thereafter he commenced his action against Gattshall in the district court for

damages for Gattshall's alleged malicious prosecution, and recovered a judgment of $417.

This sum included items of expense of transportation from his camp in Berniece Canyon to

the justice's court, the loss of six days' mining operations of a profitable antimony property,

expense of board and room while attending the preliminary hearing, and sundry other trial

expense, all totaling $416. To this the learned district judge added the sum of $1 for that

Sizemore was filched of his good name and made poor indeed. Gattshall feels aggrieved at

being ordered to pay these sums—not indeed because of Sizemore's vindication but because

of Gattshall's lack of malice in the prosecution—because, in short, Sizemore had not proved

lack of probable cause for his accusation. Out of this accusation an involved and dramatic

sequence of events developed.

In February, 1952, a utility room on Gattshall's premises near Fallon was burglarized, and

property stolen therefrom included Gattshall's valuable saddle. Late in 1953 Gattshall

received word through a friend, Willie Harrison, that a saddle of similar description had been

seen in Austin, Nevada, the preceding summer. Gattshall went to Austin and asked the sheriff

to investigate. The sheriff did so and, in a letter, communicated the results to Gattshall. This

was to the effect that the ranch owner contacted by the sheriff had seen the saddle in the

possession of an employee, who was later identified as Max Aldrid. In a second letter the

sheriff gave his version of what happened—that Aldrid had got the saddle on a ��@�9��,��@�9��/��1��


trade from Sizemore; that in trade for the saddle Aldrid traded to Sizemore a horse belonging

to Marvin Gandolfo. Now this at first blush would appear to indicate a rather highhanded

dealing with other people's property. But so far no one had verified a single one of the

essential facts. Gandolfo's horse never again came into the picture. Neither did Gandolfo.

Aldrid, it is true, had a saddle. And here is the description furnished by Willie Harrison that

satisfied Gattshall that the Aldrid saddle was the Gattshall saddle. The quotation is from

Gatshall's testimony: “Exceptionally well made saddle, out of extra good leather, custom

made saddle, * * * type of leather * * * type of skirts and rigging.”

We may be pardoned for dwelling on this description, for it was what satisfied Gattshall

that the saddle was his. Unless this Aldrid saddle, obtained in a trade from Sizemore, was the

Gattshall saddle, any suspicion of Sizemore's connection with the burglary was entirely

without any basis or foundation of any kind whatsoever. So we take first and discard as of no

identifying value the fact that it was made of extra good leather. Thousands of saddles are so

made. We next take and likewise discard the fact that the saddle was exceptionally well

made. Thousands will meet that description. We examine next the fact that it was a

custom-made saddle. Now the learned district judge, like most of us of the bar and bench of

Nevada, was a product of the cow country. He undoubtedly knew that in times past it was the

ambition of every $40 a month cowpuncher to own a custom-made saddle, for which he was

willing to pay a month's wages, and that if cowpunchers are now getting $200 a month, the

$40 saddle of earlier days probably costs $200; that the mere fact that a saddle is custom

made is not an identification; that if the fact that it was custom made had any significance it

was in the fact that a custom-made saddle might well bear the owner's initials tooled in the

leather of the cantle. An example of this lies in the fact that the Aldrid saddle, traced to the��)�


original ownership of J. Elmer Williams, had the initials J.E.W. on the cantle. And the district

judge undoubtedly knew that a custom-made saddle invariably bears the stamp of the

maker—by no means identification of an individual saddle, but certainly limiting the field;

that Visalia Stock Saddle Co., D. E. Walker, G. S. Garcia, J. M. Capriola and others are

bynames for custom-made saddles in Nevada and throughout a large part of the West. But it

appears that Willie Harrison also described the type of skirts and rigging. Now both of these

items are of importance to one having his saddle custom made. Like Hebrew scholars arguing

for hours over the meaning of a sentence of the Talmud, a pair of western cowmen will hold

forth on the merits and demerits of a square-skirted saddle and a round-skirted saddle,

respectively. The end result, as probably catalogued by the learned district judge, is that there

are about as many square-skirted saddles as round-skirted saddles. That the skirts would

supply a distinction is undoubtedly true. One seeking a square-skirted saddle would know that

a round-skirted saddle discovered in his search would not be the saddle sought. And vice

versa. But that a certain saddle was the one sought by him because, forsooth, it had round

skirts, as did his, is no more convincing than that a cow was his because it was brockle-faced

or because it was red. That the “rigging” was described is likewise without value as an

identification. As the district judge probably knew, in the range country of Nevada a saddle is

“single rigged” if it is equipped with one cinch and “double rigged” if it is equipped with two

cinches. Styles change and preferences change and double-rigged saddles come and go. Like

the shape of the skirts, the merits and demerits of single-rigged and double-rigged saddles are

the subject of much argument. 1 Even if one credits Willie Harri��=��.��*��2��-��2�� -��

____________________

1

Spanish custom undoubtedly largely influenced the use of the single-rig saddle which found its prevalence

in California and Nevada, resulting in the almost universal manufacture in those


son's description of the rigging to have been more technical—to have fixed the location of the

single rig as either “three-quarter” or “center-fire,” the most we have is limitation to a class

and not identification of an individual. We do not even know what Willie Harrison said about

the rigging. And though Willie Harrison described the leather as “extra good,” he made no

mention of the design stamped thereon—whether it was the familiar flower design, or basket

design, or plain with only a border design. We emphasize these matters in view of the fact

that Gattshall was repeatedly asked for the 2��-�� 2�� -��2��-

____________________

states of the single-rig D.E. Walker (Visalia) saddle. That influence was not so much felt in Colorado or

Wyoming or even in New Mexico, Arizona and Texas where we consequently find the double-rig saddle more

popular. Nor is the Spanish influence, or the lack of Spanish influence, as the case may be, restricted to the type

of saddle. The same prevalence of the Spanish influence and of the Spanish vaqueros finds a prevailing use in

California and Nevada of the long braided rawhide rope, the riata, or more properly reata, or lariat (la reata, the

rope). This was a rope of great length, some 65 feet, which the vaqueros used with a large running noose playing

through a heavy rawhide honda, often lined with metal, giving the noose weight and balance for the throw.

Cowboys in the western states more free of the Spanish influence are found using a shorter sisal or Manila rope

tied hard and fast to the horn and thrown for the most part with a smaller noose. The use of the long rawhide

riata permitted the vaquero (buckaroo) to use his rope as long or as short as desired. Instead of being tied hard

and fast to the horn, after the noose was thrown over the head or horns or around the forefeet or hind feet of the

cow or horse, it was held fast by taking several turns around the horn. The cowboy expressed it as “taking his

dallies.” The Spanish influence further resulted in the widespread use in Nevada and California of the Spanish

bit or spade bit, as contrasted with the prevailing use in the other western states of the curb bit or “grazer.”

Bancroft found the California horseman and his trappings superior to the Mexican as well as the Chilean and

Peruvian, and, as to the saddle, he found “the girth exactly in the center, and stirrups forward, almost an

appendage from the pommel.” XXXIV Bancroft, California Pastoral, 447 (1888). Hittell describes at length the

Californian saddle, its tree, its skirts, stirrups, tapaderos, its cinch, the latigo straps, though, strangely, he does

not refer to the tapaderos or latigos by those names—the spade bit, the reata or lasso and the skill of the

Californians in using it. 2 Hittell, History of California 489 (1885). The use of chaparajos (chaparejos,

chaparreras, chaps), of the large roweled spurs, the silver conchas, and other trappings and accessories of the

vaquero may be likewise traced.


“description” given him by Harrison, to “go in detail and describe it,” to tell if there were

“any distinguishing characteristics.” The district judge heard these questions and the entirely

unsatisfying answers. But Willie Harrison apparently knew Gattshall's saddle. He knew that it

was a custom-made saddle. And if it was a custom-made saddle it might well have had one

sure identification—the initials of the owner tooled in the leather on the cantle. 2 And if he

had looked, he would have found there not J.W.G. but J.E.W. At least this is the

uncontradicted testimony of Sizemore and Yost.

In any event, relying only on the two letters from the sheriff and Willie Harrison's

so-called identification, without contacting Sizemore or Aldrid, without further attempt to

locate or see the Aldrid saddle, Gattshall put his facts before the district attorney of Churchill

County, who suggested that Gattshall “bring these two men together,” which Gattshall says

he took to mean to sue out a warrant for their arrest. At the trial of the main action the district

attorney, as a witness, was asked, “Did you advise Mr. Gattshall to file a complaint,” and he

replied, “No, I did not.” Gattshall then went to the justice of the peace for the purpose of

obtaining a warrant. The justice of the peace testified that Gattshall first obtained the issuance

of a search warrant, further details of which were not described. He testified further: “After

that had been issued he came back to the office and demanded that I issue a warrant of arrest

and at that time why he told me what he thought was the basis of issuing the warrant and the

complaint and I told him that in my opinion he had no basis for the issuing of the ��

____________________

2

These comments are not appreciably weakened even if we frankly grant that a custom-made saddle might

indeed be bare of initials and that a factory-made saddle might subsequently be initialed. Nor are they weakened

by recognition of the fact that a cowman could pick out his own saddle from a hundred or more. A barbed wire

scratch, a spur track, identifiable saddle strings and many other details might serve to identify it. None such is

disclosed by the record. And such details. If they existed and were reported would have indicated that the saddle

Willie Harrison saw was not the Gattshall saddle.


warrant. He demanded that it be issued and I issued it.” He testified further as to the

preliminary hearing: that Gattshall had testified simply to the fact that he thought Sizemore

had been in Fallon about the time of the burglary; that no other witnesses testified and that the

justice of the peace dismissed the case. On cross examination he testified that Gattshall

showed no personal enmity of any kind towards Sizemore but merely a desire to pursue

whoever had burglarized his place. Gattshall, in defense of the main action testified that in

filing the criminal complaint his only intention or motive “was to bring them to justice; to

recover my property”; that the only feeling he had towards Sizemore was the suspicion that

Sizemore had stolen some of his property. He called one witness who testified that Sizemore's

reputation was more or less questionable, and another witness who testified: “Well

[Sizemore's] reputation ain't very good amongst the rest of the people but that is their

personal opinion.” Gattshall testified that Sizemore's reputation in the community for honesty

and integrity was bad.

As to the actual saddle in the possession of Aldrid, Sizemore testified definitely that he,

Sizemore, had bought it from one Albert E. Yost and later sold it to Aldrid. Yost in turn

testified that he had sold the saddle to Sizemore and that he, Yost, had bought it from Chet

Lima, who in turn had bought it from J. Elmer Williams, whose initials, J.E.W., were

stamped on the cantle. There was no contradiction of any of this testimony, nor is there any

suggestion that these facts could not have been obtained with a reasonable amount of

diligence either by Sizemore or by the sheriff. The trial court was left with the fact that the

saddle traded or sold by Sizemore to Aldrid was not the saddle taken in the burglary of the

Gattshall premises.

[Headnote 1]

At the conclusion of the trial, after hearing argument of counsel, the court orally

announced its decision from the bench to the effect that the prosecution had been ��


had without probable cause and that malice was inferred. Appellant's main assignments of

error are that plaintiff failed to sustain the burden of proving either lack of probable cause or

malice. In support of this contention appellant relies on Richter v. Neilson, 11 Cal.App.2d

503, 54 P.2d 54, 58. Not only are the facts of that case so different as to afford it no value as

authority in the present appeal, but it is distinguished by its reliance upon the rule “that where

one, before instituting the prosecution, has in good faith consulted an attorney at law in good

standing, particularly if such attorney be one charged with the prosecution of public offenses,

and has stated to him all the facts of the case, and has been thereupon advised by such

attorney that a prosecution will lie, and such person has acted honestly on that advice, this of

itself constitutes probable cause.” The court elsewhere stresses the fact that the defendant

acted under the advice of the deputy district attorney in filing the complaint. It is true that the

court stated that “whether or not a want of probable cause is shown, malice must be

affirmatively established. * * * In other words, there must be concurrence of malice and want

of probable cause.” There follow some confusing statements as to the court's position on

whether, in a proper case, malice might be inferred from a lack of probable cause. Be that as

it may, we may note that in McNamee v. Nesbitt, 24 Nev. 400, 56 P. 37, this court held that

malice might be presumed from want of probable cause. It also held that whether the

defendant acted in good faith on the advice of counsel, if given, was a question of fact. In

Cassinelli v. Cassinelli, 24 Nev. 182, 51 P. 252, this court again stated that malice might be

inferred from want of probable cause. In the instant case the inference finds justification not

only in the rather extreme lack of probable cause but in the fact that the district attorney

refused to advise the prosecution and the justice of the peace decidedly advised against it.

[Headnote 2]

Gattshall, called by the plaintiff as an adverse witness, ��C��3��


testified to his receipt of two letters from the deputy sheriff of Lander County reporting on

what he had discovered concerning the subject matter. The witness was permitted to testify in

detail as to the contents of these letters. Later, in testifying on his own behalf in defense,

Gattshall sought to introduce these letters in evidence. An objection was sustained on the

ground of hearsay despite the insistence of appellant that the introduction of the letters was

not sought to prove any of the facts therein contained, but simply to show the facts on which

Gattshall relied in filing the criminal complaint, and to prove that such complaint was not

filed without probable cause. Appellant assigns the rejection of these letters as error.

Assuming for the sake of argument that the letters should have been admitted, the error, if

any, was not prejudicial. Gattshall was permitted to testify to the complete content of both

letters. Neither letter contained a word of description of the Aldrid saddle. Other rulings on

the admissibility of evidence are assigned as error but we find them without merit.

[Headnote 3]

Our conclusion is that there was ample evidence to support the court's finding of lack of

probable cause and its inference of malice.



____________

��71 Nev. 115, 115 (1955) Mikulich v. Diltz��

TONY MIKULICH and SAM PANIFLOW,

Appellants, v. MAUN R. DILTZ, Respondent.

No. 3830

March 31, 1955. 281 P.2d 800.


Department No. 3.

Action by purchaser of realty for restitution, wherein vendors counterclaimed for use and

occupancy of premises. From adverse judgment, the vendors appealed. The Supreme Court,

Merrill, C. J., held that where oral contract for purchase of realty provided for down payment

of $250 at time contract was reduced to writing, but without contract having been reduced to

writing, purchaser took possession with consent of vendors and made extensive

improvements and he was then unable to make down payment upon demand whereupon he

was ordered to vacate, vendors were not unjustly enriched by reason of improvements placed

upon premises by purchaser, since benefits were not conferred under any erroneous belief as

to existence of any fact or right.

Judgment reversed and matter remanded with instructions.

David Zenoff and Calvin C. Magleby, of Las Vegas, for Appellants.

Edwin J. Dotson, of Las Vegas, for Respondent.

1. Vendor and Purchaser. Where purchaser took possession with consent of vendors and made extensive improvements and he was

then unable to make down payment provided for in contract, whereupon he was ordered to vacate, vendors

were not unjustly enriched by reason of improvements placed upon premises by purchaser.

2. Vendor and Purchaser. Where purchaser took possession with consent of vendors and made extensive improvements and was

then ordered to vacate about a year later when he was unable to make down payment upon demand, validity

of vendors' counterclaim for use and occupancy existed only as an equitable offset to claim of purchaser for

restitution, and vendors were more than ��


adequately compensated for use and occupancy when they resold property for more than twice agreed

purchase price in oral contract.

3. Landlord and Tenant. Where purchaser took possession with consent of vendors and made extensive improvements and was

then ordered to vacate about a year later when he was unable to make down payment provided for in

contract, purchaser's occupancy of premises was without any agreement express or implied as to rental.

OPINION


[Headnote 1]

This is an appeal from judgment of restitution for unjust enrichment. The sole question is

whether, as held by the trial court, the facts present a true case of unjust enrichment. In our

opinion they do not and judgment must be reversed. For the purposes of this opinion,

appellants will be designated as vendors and respondent as purchaser.

The parties entered into an oral contract for the purchase of real property located in Clark

County near Las Vegas. The agreed sale price was $3,000 with the sum of $250 as a down

payment due at such time as the contract was reduced to writing; the balance being payable at

the rate of $50 a month thereafter. Under this arrangement and without the contract having

been reduced to writing, the purchaser and his wife took possession of the premises with the

consent of the vendors.

Located upon the premises were a small cabin and a small house. The latter had just been

moved to the property from another location and was not yet connected for utility services or

otherwise rendered habitable. The purchaser and his wife lived in the cabin while work of

repair and improvement carried on by them rendered the house habitable. They then moved to

the house. The trial court found the value of their work in labor and materials to be $2,049.50.


After the purchaser and his wife had thus been in possession for over a year, the contract

never having been reduced to writing and nothing having been paid on the purchase price,

demand for down payment was made by the vendors. The purchaser himself was away at the

time and was not due to return to Las Vegas for some months. His wife advised the vendors

that she was unable to pay anything but that on her husband's return they would see what

could be done. The vendors advised that they could not wait that long for a decision as they

were in present need of money. The wife was ordered to vacate within a fixed period of time

and did so. Later the premises were further substantially improved by the vendors, streets to

the property were graded and surfaced by the county and the property was sold by the vendors

for a price of $7,800.

This action was brought by the purchaser for restitution based upon general equitable

principles, Nevada having no betterment act or occupying claimant act. The vendors have

counterclaimed for use and occupancy of the premises.

The trial court found “that while said plaintiff was on said premises he placed certain

improvements on said property and as a direct result thereof the defendants received certain

benefits by reason of the enhancement of the value of the property which is indicated by the

sale price for which the property was subsequently sold.” It concluded, “That the plaintiff is

entitled to judgment against the defendants arising out of the unjust enrichment which the

defendants have enjoyed by reason of the materials and labor placed upon the premises of the

defendants by the plaintiff * * *.” An offset of $560 in favor of the vendors was allowed by

the court as reasonable rental for the period of occupancy. Judgment in favor of the purchaser

was entered in the sum of $1,489.50.

The obligation of vendors to make restitution, as found by the trial court, did not rest upon

any agreement express or implied in fact. The obligation, if it exists, �*�� *��


exists by virtue of a contract implied in law, a quasi-contract imposed to prevent the unjust

enrichment of the vendors at the expense of the purchaser. See: Restatement Of The Law,

Restitution, sec. 1.

There can be no question but that the vendors were enriched by the labor and material

furnished by the purchaser. But every enrichment does not, in the eyes of the law, furnish a

legal right to compensation. In the case at bar an essential element is wholly lacking, the

element of what has been called “misreliance” upon a right: that the benefits were “conferred

under the inducement of an erroneous belief as to a fact essential to the * * * existence or

availability of a right.” Woodward on Quasi-Contracts, page 12, sec. 10. See also Wigmore,

A Summary of Quasi-Contracts, 25 American Law Review 46.

The benefits here conferred were not conferred under an erroneous belief as to the

existence of any fact or right. The rights of the purchaser were known by him to be dependent

upon compliance with the terms of the contract of purchase. The terms and existence of that

contract were not disputed. Had the vendors here repudiated the contract as void under the

statute of frauds and rejected a tender of down payment, the case would be quite different.

The vendors did no such thing, however. They demanded compliance and were denied

compliance. The rights of the purchaser were lost not through his misreliance upon a

supposed legal relationship, not through the intervention of some fact or principle of law

unknown to him; but through his failure to meet his own known duties under the contract.

Nor can it be said that his breach was of a condition unexpectedly rendered impossible to

perform through unforeseen circumstances beyond his control. From the record it appears that

money which might have been used for making the agreed payments had voluntarily been

spent by the purchaser for other purposes, including that of making the premises habitable for

himself and his wife. The fact that the purchaser was without ��*��


funds can only be attributed to an unfortunate exercise of his own judgment upon financial

matters. We may well sympathize with him in this respect. To hold, however, that the legal

consequences of misreliance may result from such a free though unfortunate exercise of

choice would, we fear, have a most upsetting effect upon the stability of business contracts

and transactions generally. In the business world one customarily must accept the

consequences of his own errors of judgment. One must anticipate that change of fortune may

well cause loss of an investment through one's inability to protect it by further undertaking

pursuant to contract.

In Chabot v. Winter Park Co., 34 Fla. 258, 15 So. 756, 759, 43 Am.St.Rep. 192, 201, as in

the case before us, the purchaser had improved the property to a substantial extent in

comparison with the purchase price. The court stated, “We have been unable to find any case

where compensation [for improvements] was allowed a vendee where his case failed, not

from any technical defect in the form of his contract, but on account of his own laches,

negligence and disregard of his obligations. The appellant in this case may suffer some

pecuniary loss from which we might wish to save him, but he is in a predicament into which

he has gotten himself by his own conduct, and from which we are powerless to extricate

him.” To the same effect are Gillet v. Maynard, 5 Johns., N.Y. 85, 4 Am.Dec. 329; Seabury v.

Stewart, 22 Ala. 207, 58 Am.Dec. 254; Patton v. Moore, 16 W. Va. 428, 37 Am.Rep. 789;

Rynhart v. Welch, 156 Ore. 48, 65 P.2d 1420; See Keener on Quasi-Contracts, page 214 et

seq.; 55 Am.Jur. 1031, Vendor & Purchaser, sec. 637; 27 Am.Jur. 262, Improvements, sec. 5.

[Headnotes 2, 3]

As to the counterclaim of the vendors, its validity exists only as an equitable offset to the

claim of the purchaser. The purchaser's occupancy of the premises was with the consent of

the vendors and was without any agreement express or implied as to rental. Certainly the

vendors were more than adequately compensated for ��


use and occupancy through the improvements made upon the premises.

Judgment is reversed and the matter remanded with instructions that judgment be entered

in favor of the defendants upon the complaint of the plaintiff and in favor of the plaintiff upon

the counterclaim of the defendants. Appellants are allowed their costs.


____________

��71 Nev. 120, 120 (1955) Sonksen v. Primm��

MARIE SONKSEN, Appellant, v. ERNEST J.

PRIMM, Respondent.

No. 3843

April 7, 1955. 281 P.2d 987.

Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,

Department No. 2.

Action for an accounting of undistributed profits of partnership to which assignor was

entitled at termination of assignment, and to recover what was due to deceased assignee's

successor under assignment from assignor's share of partnership profits. From a summary

judgment in favor of defendant on finding that no sums remained due and unpaid under the

assignment, plaintiff appealed. The Supreme Court, Merrill, C.J., held that under assignment

assigning one percent of net profits of partnership distributable to assignor, a partner, assignor

transferred one percent of net profits to which he was entitled as a matter of law and not one

percent of profits actually distributed to assignor, even though partners voluntarily agreed not

to make a distribution of profits until all partners agreed to do so and expressly fixed extent of

such distribution.

Reversed and remanded for further proceedings.

Wilson and Brown, and John S. Belford, of Reno, for Appellant.

Vargas, Dillon and Bartlett, of Reno, for Respondent.


1. Assignment. Under an assignment assigning one percent of net profits of partnership “distributable” to assignor, one of

the partners, assignor transferred one percent of net profits to which he was entitled as a matter of law and

not merely one percent of profits actually distributed to assignor, even though partners had voluntarily

agreed not to make a “distribution of profits” until all partners agreed to do so and had expressly fixed the

extent of such distribution.

2. Partnership. A voluntary agreement among partners as to manner in which partnership profits might be distributed is

not a limitation upon partner's right to profits, but is a collateral agreement as to extent of cash which each

partner shall continue to make available for current business operations.

OPINION


This is an action upon an assignment to recover sums due thereunder. The trial court,

holding that no sums remained due and unpaid, rendered summary judgment in favor of the

defendant. The plaintiff has taken this appeal. Whether or not sums remain due and unpaid

turns upon the meaning which should attach to one word used in the assignment: the word

“distributable.” The parties are in dispute upon this point and this is the sole issue presented

by the appeal.

In 1943 respondent assigned to one Rummel “one percent of the net profits of that certain

business located in the City of Reno, County of Washoe, State of Nevada, known and

designated as the Palace Club, distributable to Ernest J. Primm.” Rummel has since died and

appellant has succeeded to his interest under the assignment. By the terms of the instrument

its effect terminated upon Rummel's death.

This action is brought for an accounting of undistributed profits as of the termination of

the assignment and to recover one percent of the assignor's share thereof. The complaint

alleges in part that at the time of Rummel's death the partnership held, as undistributed profits

of said business, “a large sum of money, the exact amount of which is unknown to plaintiff

but which is ��-,��=��


well known to defendant”; that defendant's share of said net profits has long since been

distributed to him.

The Palace Club, at all material times, was operated as a partnership business. Respondent

assignor was one of four partners. He contends that the “distributable” profits contemplated

by the assignment are those actually distributed to him by the partnership or those set apart by

the partners for such distribution. Upon motion for summary judgment it appeared that

Rummel, at the time of his death, had received his assigned one percent of all profits which to

that date had been set apart by the partners for distribution to respondent. The trial court, in

granting summary judgment, apparently adopted respondent's construction of the word

“distributable.”

[Headnote 1]

Appellant contends that “distributable” profits as contemplated by the assignment are

those capable of being distributed whether actually distributed or not and whether the partners

had elected to distribute them or not. She contends that by the assignment respondent

transferred one percent of his distributive share of the net profits of the concern—one percent

of the net profits to which he was entitled as a matter of law; that the phrase in which the

word appears had been used simply to limit the assignment to respondent's share in the profits

and make clear that the assignee could not claim one percent of the entire Palace Club profits.

We agree that this is the proper construction and in accordance with customary usage of the

word. In Webster's New International Dictionary, the suffix “-able” is defined as follows: “An

adjective suffix used passively with implication of capacity, fitness or worthiness to be acted

upon as in readable, capable of being read; credible, capable of being believed; soluble,

capable of being solved; edible, fit to be eaten; lovable, worthy to be loved. This is now the

usual sense of the suffix in English.”

Respondent contends that under the circumstances of this case such a construction is not

reasonable. He points ��*��*��*��


out that it is established by the record that the partnership practice was never to make

distribution of profits until the partners had agreed so to do and had expressly fixed the extent

of such distribution. He urges that since he himself could not have compelled a greater

distribution than that agreed upon, his assignee should have no greater rights.

[Headnote 2]

However, the limitation upon respondent's right to receipt of his full share of profits was

due only to his voluntary arrangement with his partners as to the manner in which those

profits might, from time to time, be received and enjoyed without prejudice to the going

concern—a business arrangement necessary to all partnerships. Such arrangement, in proper

perspective, is not a limitation upon a partner's right to profits, but is, rather, a collateral

agreement as to the extent of cash which each partner shall continue to make available for

current business operations. As between partners, all of whom share both the right to profits

and the independent obligation to maintain an operating cash balance, the obligation is simply

set off against the right. An assignee of the right, having no share in the obligation, receives

his right free from such set-off.

In our view, then, the circumstances of the case lend support to appellant's, rather than

respondent's, construction of the word “distributable.” Indeed it might well be regarded as

unreasonable to attribute to the assignee an intent that his property rights, otherwise

ascertainable as a matter of cold figures, could be made to depend upon the whim or personal

cash needs of persons, one of whom is the assignor himself.

Upon the record before us and the question presented for our determination, appellant is

entitled to an accounting as prayed.

Reversed and remanded for further proceedings. Costs to appellant.


____________

��71 Nev. 124, 124 (1955) Ex Parte Kline��

In the Matter of the Application of DUDLEY

KLINE for a Writ of Habeas Corpus.

STATE OF NEVADA, Appellant, v. DUDLEY

KLINE, Respondent.

No. 3832

April 13, 1955. 282 P.2d 367.

Appeal from judgment of Fourth Judicial District Court, Elko County, Harold O. Taber,

district judge presiding, granting writ of habeas corpus and discharging respondent.

The Supreme Court, Badt, J., held that evidence failed to establish that there was sufficient

cause to believe the defendant guilty of offense that had been committed so as to warrant

holding him in custody.

Affirmed.

W.T. Mathews, Attorney General, Carson City and F. Grant Sawyer, District Attorney,

Elko, for Appellant.

Sinai & Sinai, of Reno, and Keith Williams, Elko, for Respondent.

1. Evidence. “Presumption” is deduction which law expressly directs to be made from particular facts, whereas

“inference” must be logical conclusion or deduction from given data. N.C.L.1931-1941, sec. 9047.02

2. Habeas Corpus. In proceeding for writ of habeas corpus by one held in custody charged with crime of extortion, evidence

failed to establish that there was sufficient cause to believe the defendant guilty of offense that had been

committed so as to warrant holding him in custody. N.C.L.1929, secs. 9957-9960, 10785, 11394.

OPINION


This is an appeal by the state from a judgment granting Dudley Kline, the respondent, a

writ of habeas corpus and discharging him from custody after he had ��*��


been held for trial pursuant to a hearing before a committing magistrate charging him with the

crime of extortion. The only question we are called on to decide is whether it was error for

the district court to hold that there was not “sufficient cause to believe the defendant guilty”

of the offense that had been committed. Sec. 10785, N.C.L. 1929. Narrowed still further, was

it error for the district court to hold that the inference drawn by the magistrate that the

defendant was connected with the crime was not reasonably drawn or deduced from the facts

proved. [?] A careful examination of the facts convinces us that the total failure of the state to

connect respondent with the principal who perpetrated the crime of extortion left the

magistrate's inference without any reasonable support, and justified respondent's discharge on

habeas corpus by the district judge.

The Nevada State Tax Commission, in addition to other duties and functions, collects

taxes levied against gambling licensees and regulates gambling activities. The head of this

operation is the secretary and executive officer of the commission, who is the superior of the

supervisor of the gambling license division. The supervisor is superior to certain permanent

personnel, who in turn supervise temporary personnel employed from time to time as

undercover men to travel about the state, visit the various gambling casinos, watch the games,

engage from time to time in the play and report to their immediate superior (the field assistant

or field supervisor) any cheating or improper practices of the casinos or their “dealers.” If the

undercover agent finds tangible evidence of cheating, such as marked cards or crooked dice

or if he finds intangible evidence of cheating such as, in a twenty-one game, “peeking” at the

cards in the deck from which the dealer is dealing or (generally in connection with peeking)

“second carding” (sliding the top card back and dealing the second card), he would report to

the field assistant or field supervisor. If tangible evidence is discovered the field assistant or��


supervisor immediately takes it into his possession. If intangible evidence is reported, a

second observation is sought by a different undercover man and if the second observation

also indicates such cheating, appropriate action is taken by the commission, usually by way of

an order to the licensee to show cause why his license should not be revoked. The fact that

the employment of undercover men is only temporary at once becomes clear. In time such

undercover men would become known to the casino operators. The facts in the present case

involve the operation of the twenty-one game only, and we have no concern with other

gambling games operated by the gambling casinos. 1

Leo Quilici, a resident of Wells, Elko County, Nevada, since 1911, had been in the bar,

hotel and casino business since that date. Prior to October, 1952, he had employed his son Joe

in various capacities, including that of dealer of a twenty-one game. In 1951 Joe had been

caught cheating by the commission and Leo, upon receiving notice from the commission, had

voluntarily surrendered his gambling license at El Rancho Hotel, which was closed for a

number of months thereafter. On October 18, 1952 Joe was managing El Rancho Hotel for

his father Leo Quilici and was “dealing twenty-one” about six or seven o'clock that evening

when one John Galloway entered the premises and played for awhile, betting 50 cents a card,

and asked some questions concerning the danger that his radiator might freeze, the distance to

Sacramento, etc. to give the impression that he was a tourist. Joe cheated by peeking and

second carding. Galloway left for ten or fifteen minutes and returned, followed by two men

(neither of whom was Kline) who went to the bar and had a drink. A friend or acquaintance

of Joe's, one Al Christy, came in a few minutes later, stood behind Galloway and pointed to

him indicating to Joe that Galloway was with the tax commission.

____________________

1

Faro, monte, roulette, keno, fan-tan, black jack, seven-and-a-half, big injun, klondyke, craps, etc. See Dunn

v. Tax Commission, 67 Nev. 173, 216 P.2d 985.


Joe desisted from his cheating and Galloway left some ten or fifteen minutes later, followed

by the two men at the bar. Joe observed them walk across the street and apparently confer for

a few moments and then separate. Part of the twenty-one dealing was by Joe and some of the

hands were dealt by another dealer, one Al Hobbs. Christy, who Joe thought had come in

especially to warn him, was also a dealer, though in another club. Joe told his father what had

occurred and came back and closed up the game.

Galloway was not employed by the commission in any capacity and had never been so

employed. At the time, however, Sheldon John Moore, an undercover man employed by the

commission, was in Elko County operating under the supervision of the respondent Kline.

Moore was accompanied by his wife who accompanied him into the casinos, thus

strengthening his appearance of being a tourist. Neither Kline nor Moore observed any

cheating at El Rancho on October 18, 1952. Kline did personally observe two cheating

incidents that day in other establishments.

Leo Quilici had known respondent for some five years in connection with gambling

matters and as an employee of the Nevada State Tax Commission. He testified that about one

thirty on the afternoon following the incident above described Kline came into the Bull's

Head Bar, which was another bar, hotel and casino operated by Leo Quilici, stated he wanted

to see Leo, that they went upstairs to the dance hall where Kline inquired who the twenty-one

dealer was and that Leo explained that it was his son. Leo then quoted Kline as saying: “Last

night he got caught cheating from the Nevada State Tax Commission man,” and Leo said,

“Well, that makes the second time.” Kline had a pencil and a book or piece of paper in his

hand during the conversation. Leo testified that Kline in leaving said that he might be able to

help him, and he then described the following. About two hours later Galloway came into the

Bull's Head Bar and Joe Quilici came in about the same time and secretly ��C��1��J�G��


told Leo that Galloway was the man who had been in El Rancho the night before. Galloway

wanted to talk to Leo and they went upstairs to the dance hall. Leo testifies that Galloway

said, after identifying the twenty-one dealer as Leo's son Joe: “I am the Nevada State Tax

Commission man and I caught him cheating last night,” and that Leo again stated: “That

makes the second time.” Leo then testifies that Galloway said: “If you want to fix the thing

up, he says, you have got a chance, and I asked him how much the damage; he says it is

$3,000, and he says I got to make a split. And so I says all right, and I says I will go down and

get the money.” He then got the $3,000 from his business and paid it to Galloway.

Robbins Cahill, secretary and executive officer of the Nevada State Tax Commission and

who had been employed by the commission since January 1, 1945, with the position of

executive officer since 1948, testified at length concerning the operation of the commission,

the duties of Mr. Gallagher as supervisor of the gambling division, the employment of the

permanent personnel, including Kline as field assistant, and the supervision of undercover

men by Kline. Among other things he testified to the rules of the commission requiring

written reports of all violations and of all observations of cheating and the constant meetings

throughout the year attended by Mr. Cahill, Mr. Gallagher and members of the permanent

personnel in which gambling operations throughout the state were very generally discussed.

He stressed the rule that a proprietor of an establishment in which an observation of cheating

had been made was not to be approached. Ordinarily he was approached only from the office

of the commission by some one designated by Mr. Cahill and generally upon the issuance of a

show cause order. The policy of the commission would have precluded Kline from the

approach to Leo Quilici as testified to by Leo and would have required a report to the

commission of the incident. Kline did not report ��2��-��3��1��


it in writing nor did he mention it in any of a number of “skull” sessions held with Cahill and

Galloway later in the year. Gallagher testified along the same lines and placed Kline in the

area in supervision of undercover man Sheldon J. Moore at the time of these occurrences.

Moore testified to conferences with Kline on October 18, of Moore's observation of three

other places, but not El Rancho, suspected of cheating. These conferences included a

continuous period from 5:30 p.m. to 11:15 p.m. on October 18, 1952. As this included the

period in which Galloway was playing twenty-one at Joe's table, the particular cheating

incident could not have been observed directly either by Kline or Moore. However there was

present in Wells during that day a man by the name of Carol Sweringen who at various times,

both before and after the incident involved, had been employed by the tax commission as an

undercover man.

It becomes necessary at this point to observe that this was a second preliminary hearing. It

was, as noted, held May 27, 1954. The first preliminary hearing was held March 18, 1954 on

a charge of extortion against both Kline and Galloway, resulting in an order by the magistrate

that both defendants be held to answer. Thereafter, on April 16, 1954, Kline was discharged

on habeas corpus by order of Honorable Taylor H. Wines in the same district court. It is

important to note the grounds of Kline's discharge by Judge Wines in the written opinion filed

by him. After noting that under sec. 11394, N.C.L. 1929, a petitioner may be released on

habeas corpus when he “has been committed on a criminal charge without reasonable or

probable cause,” and that under sec. 10785, N.C.L. 1929, he may be held to answer only if it

appears that a public offense has been committed “and there is sufficient cause to believe the

defendant guilty thereof,” the learned district judge recognized that the magistrate was not

bound by the rule of reasonable doubt but might hold the defendant though the evidence

would not support a verdict of ��


guilty. Citing In re Kelly, 28 Nev. 491, 83 P. 223; Ex parte Williams and Lathrop, 39 Nev.

440, 159 P. 518; Ex parte Oxley and Mulvaney, 38 Nev. 379, 380, 149 P. 992; Ex parte

Bowman, 38 Nev. 484, 151 P. 517; Ex parte Liotard, 47 Nev. 169, 217 P. 960, 30 A.L.R. 63;

and Ex parte Molino, 39 Nev. 360, 157 P. 1012, he stated the rule: “Sufficient or probable

cause has been defined as meaning that there shall be more evidence for than against, or,

supported by evidence which inclines the mind to believe, yet, leaves room for doubt; or, a

state of facts which would lead a man of ordinary caution and prudence to believe and

conscientiously entertain a strong suspicion.” Referring to secs. 9957-9960, N.C.L. 1929,

inclusive, he properly found that Kline had been charged as a principal and based his order of

discharge upon the absence of any proof of concert between Kline and Galloway. He rejected

the state's contention that the evidence showed that Kline displayed a secret and special

knowledge that he could have obtained only from Galloway, saying: “The evidence does not

show this. At least two other persons (dealers) were aware of the impression made by John

Galloway on the evening of October 18, 1952.” There was of course Al Hobbs, Joe Quilici's

co-dealer. There was Al Christy, a dealer from another casino, who came in and warned Joe.

There were the two men who followed Galloway into El Rancho on his second appearance

there. In the background was Sweringen, employed from time to time by the commission as

an undercover man. And there was always the “grapevine.”

Some forty-one days after the discharge of Kline by Judge Wines on habeas corpus,

namely, on May 27, 1954, the second preliminary hearing was held, on the charge against

Kline alone. The charge was that Kline on the day in question “did extort and gain money in

the sum of $3,000 from one Leo Quilici by means of threatening to accuse Joe Quilici, the

son of Leo Quilici, of a crime, to wit: the dealing of a cheating or thieving ��B�3�C� ��


game pursuant to N.C.L., sec. 3302.05, 1931-41 Supp.” At this second hearing Cahill and

Moore, who had not testified at the first preliminary hearing, were witnesses. Their testimony

has already been referred to. At such second preliminary hearing before the same magistrate,

in answer to an objection to a question to Joe Quilici asking him to describe his first

encounter with Galloway, the district attorney said: “* * * now, if you will recall, referring to

the last hearing, the objection was raised that no link between the two parties [Kline and

Galloway] was shown * * *.” That indeed was the basis of Judge Wines' discharge of Kline.

It must have been clear to the state that in that forty-one day period (or possibly in a longer

period if additional time was necessary) the required essential additional evidence necessary

to satisfy Judge Wines (and nothing in the record indicates that Judge Wines did not then

contemplate sitting at any subsequent habeas corpus hearing) was proof of a connection

between Kline and Galloway. Kline had been in the employ of the commission for some five

years, during all of which period not only Leo Quilici but undoubtedly other operators and

dealers in other casinos in the state knew him. Lines of investigation must certainly have been

open to the state to discover the possibility of any connection between Kline and Galloway.

That investigations were carried on is apparent. It was shown that Kline and Moore were

registered together in a motel at Wells; that Galloway, Sweringen and one Garner were

registered together at a motel in Elko. Many other details were elicited, but nothing to

indicate any meeting whether open or clandestine between the two men or indicating that the

two had ever met or ever knew each other or knew of the other's existence.

It was under such situation in the habeas corpus hearing before Judge Harold O. Taber,

following the second preliminary hearing, that Judge Taber said concisely and briefly: “The

court has carefully reviewed the ��E��H��


transcript of the evidence produced at the [second] preliminary hearing. Liberty is too

precious to require a person to stand trial on such a meager showing. What was said by Judge

Wines in his opinion granting the first writ of habeas corpus applies with equal force here.

The writ is made permanent and petitioner's bond is discharged.”

The state remarks in its brief: “It seems elemental that an accessory before the fact [who,

under our statute, becomes a principal] in a case such as this, must know the plan of the

person actually intending to perpetrate the crime and knowing of such intent must himself

intend to aid or abet, prescribe, hire or command the actual perpetration.” Such knowledge of

Galloway's plan and such intent to and and abet the perpetration of the crime is to be inferred,

then argues the state, as follows:

1. Kline's approaching of Leo Quilici, contrary to specific instructions and the policy of

the tax commission, carries the inference that the purpose was to lay the foundation for

Galloway's intended extortion.

2. Kline's statement to Leo Quilici that the latter's son had been caught cheating “from the

Nevada Tax Commission man” carries the inference that this was to lay the foundation for

Galloway's demand.

3. Kline's display of pencil and paper while talking to Leo Quilici carries the inference

that thereby he was conveying the fact that the situation was grave and that Kline's approach

was official.

4. Kline's statement to Leo Quilici that he could perhaps help him bears the inference that

this was an offer to conceal and suppress harmful evidence officially acquired.

5. Kline's failure to make a written report or to report the incident verbally in later

discussions carries the inference that his silence was the consideration for the money extorted

from Quilici. The foregoing propositions are propounded by the state in the form of rhetorical

questions and we have supplied the answers implied ��


by the state. But to make each of the foregoing inferences complete, a further reasonable

inference necessarily to be drawn by the magistrate must be added to each of the foregoing,

namely, “that this was pursuant to an understanding, a prearrangement, a conspiracy, a plan,

entered into with Galloway, that the latter would actually extort the money from Quilici and

divide it with Kline.” It was the lack of this that was the basis of both Judge Wines' and Judge

Taber's order of discharge.

The state emphasizes that Leo Quilici's testimony as to Kline's approach and as to

Galloway's approach showed such a similarity in the two approaches that they must have been

the result of agreed action. According to Quilici, Kline asked who the twenty-one dealer was

and when Quilici explained that there were two, Kline identified the one in question as the

“light complected young man,” whereupon Leo said that that must be his son. Almost the

same conversation occurred when Galloway approached Leo. It is also contended by the state

that because Leo testified that Kline told him “Joe was caught cheating a tax commission

man,” and Galloway subsequently told him, “I am the tax commission man who caught Joe

cheating,” the inference of a conspiracy between Kline and Galloway becomes clear. This

court would have to strain for implied meanings and imputations to say that the two learned

district judges were compelled to confirm the magistrate's inference of prior meetings and

plottings by Kline and Galloway because of the use of the articles “a” and “the” and the

descriptive words, “a light complected young man” as reported by Leo to have been used,

respectively, by Kline and Galloway. It must have been obvious to both district judges, not

only that Leo Quilici's English was broken, but that his English vocabulary was greatly

limited, and that nowhere in his testimony was he pinned down to a recital of the exact words

used by Kline or by Galloway.

[Headnote 1]

We may concede that justification for holding Kline ��


to answer could be the result of inferences properly drawn from facts proved. Although added

to the Civil Practice Act by the legislature, Stats. 1931, Chap. 50, p. 59, N.C.L.1931-1941

Supp., sec. 9047.02, the definition there given of an inference may well be considered. “An

inference is a deduction which the reason of the jury makes from the facts proved, without an

express direction of law to that effect.” This is then distinguished from a presumption which

is a deduction which the law expressly directs to be made from particular facts. Such

inference must be a logical conclusion or deduction from the given data. Webster's New

International Dictionary. Conceding that it is not essential that the inference drawn must be a

necessary inference, it still remains that the inference must be reasonable. Commonwealth v.

Merrick, 255 Mass. 510, 152 N.E. 377. But if unreasonable or too remote the inference is not

warranted. Commonwealth v. Asherowski, 196 Mass. 342, 82 N.E. 13

[Headnote 2]

In our opinion there was no error in the conclusion of the district court that Kline had been

held to answer without reasonable or probable cause or in the order discharging him from

custody by reason thereof.

Respondent raises other questions against the state's appeal, but since the judgment must

be affirmed for the reasons stated, it is unnecessary to discuss such questions.

The judgment is affirmed.

Merrill, C.J., and Eather, J., concur.

____________

��71 Nev. 135, 135 (1955) Polito v. State��

CHARLES DOMINIC POLITO, Appellant, v. THE

STATE OF NEVADA, Respondent.

No. 3828

April 22, 1955. 282 P.2d 801.


Department No. 2.

Defendant was convicted of having committed lewd and lascivious act upon body of ten

year old child, and he appealed. The Supreme Court, Eather, J., held, inter alia, that evidence

was sufficient to sustain conviction although complaining witness allegedly gave

contradictory statements at preliminary hearing and at time of trial.

Affirmed.

See also 70 Nev. 525, 275 P.2d 884.

Gladys Towles Root, Los Angeles, California, and Ralli, Rudiak & Horsey, Las Vegas, for

Appellant.

William T. Mathews, Attorney General, Carson City, Roger D. Foley, District Attorney,

and Gordon L. Hawkins, Deputy District Attorney, Las Vegas, for Respondent.

1. Infants. In prosecution for committing lewd and lascivious act upon body of ten year old child, evidence that

complaining witness had identified defendant three separate times was sufficient to identify him as

perpetrator of alleged crime.

2. Infants. Evidence was sufficient to sustain conviction of committing lewd and lascivious act upon body of ten

year old child although complaining witness allegedly gave contradictory statement at preliminary hearing

and at time of trial.

3. Criminal Law. In prosecution for committing lewd and lascivious act upon body of ten year old child, court did not err in

sustaining objection to question to witness, who had already admitted prior felony conviction, suggesting

that District Attorney had witness under information, where defendant made no offer of proof, record of

examination of defendant contained many statements attacking credibility of this witness, and witness'

testimony was not essential to proof against defendant.


4. Criminal Law. Appellant must have been prejudiced in respect to substantial right before Supreme Court will reverse

judgment of lower court. N.C.L.1929, sec.11266.

5. Criminal Law. In prosecution for committing lewd and lascivious act upon body of ten year old child, wherein, after

defendant's attorney's request for continuance for illness in defendant's family, had been denied, defendant's

request for new counsel was denied, record showed that trial counsel for defendant conducted trial with all

skill and ability at their command and assured defendant of fair trial, and no diligence to secure other

counsel being shown nor any reason for attempting to cause withdrawal of trial counsel, court was in

exercise of sound discretion in denying request.

6. Criminal Law. Request for continuance was addressed to sound discretion of trial court.

7. Criminal Law. In prosecution for committing lewd and lascivious act upon body of ten year old child, where defendant

made no request for instruction as to effect of conviction of felony as impeachment, or as to alibi evidence,

he could not complain of lack of such instructions.

8. Witnesses. In prosecution for committing lewd and lascivious act upon body of ten year old child, wherein after

defendant had been cross-examined at length as to his movements on certain date, rebuttal witness had

testified, without objection or motion to strike, that defendant had given him conflicting answers as to

where he was on date in question, and had then testified as to what those answers were, there was proper

foundation for the impeachment testimony.

OPINION


This is an appeal from judgment of conviction of the appellant upon a charge of

committing a lewd and lascivious act upon the body of a child of the age of ten years.

The record presents a state of facts which would subserve no worthy or useful purpose to

reproduce in its sordid details.


[Headnote 1]

Appellant's first specification of error is that the evidence is insufficient to support the

judgment of conviction. Appellant contends that there has been insufficient proof of his

identity; that all of the evidence in the case is so unsatisfactory with respect to the perpetrator

of the alleged crime that in legal effect it constitutes no evidence at all. This contention is not

borne out by a conscientious scrutiny of the record.

Contrary to appellant's contentions, the complaining witness identified appellant as the

perpetrator of the crime against her in a line-up on December 11, 1953; at the preliminary

hearing even though appellant had since grown a mustache; and at the time of the trial. The

record shows that the complaining witness had ample opportunity to observe appellant and

identified him three separate times, with a considerable lapse of time between instances. The

complaining witness's testimony regarding the identification of the appellant as the

perpetrator of the crime against her in a line-up on December 11, 1953, was also corroborated

by Clark Arthur Davidson, chief of police, North Las Vegas, Nevada, who was present in the

sheriff's office, in the courthouse, Las Vegas, Nevada, together with other officers, and the

mother of the complaining witness.

In the case of People v. Newland, 15 Cal.2d 678, 104 P.2d 778, 779, the court stated: “The

rule applicable where there is evidence, circumstantial or otherwise, that a crime has been

committed and that the defendant was the perpetrator thereof, has been many times reiterated

by the reviewing courts of this state as follows: The court on appeal ‘will not attempt to

determine the weight of the evidence, but will decide only whether upon the face of the

evidence it can be held that sufficient facts could not have been found by the jury to warrant

the inference of guilt. For it is the function of the jury in the first instance, and of the trial

court after verdict to determine what facts are established by the �� =�� I��


evidence, and before the verdict of the jury, which has been approved by the trial court, can

be set aside on appeal upon the ground' of insufficiency of the evidence, ‘it must be made

clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to

support the conclusion reached in the court below. The determination of a charge in a

criminal case involves proof of two distinct propositions: First, that the offense charged was

committed; and second, that it was perpetrated by the person or persons accused thereof. * * *

We must assume in favor of the verdict the existence of every fact which the jury could have

reasonably deduced from the evidence, and then determine whether such facts are sufficient

to support the verdict.' If the circumstances reasonably justify the verdict of the jury, the

opinion of the reviewing court that those circumstances might also reasonably be reconciled

with the innocence of the defendant will not warrant interference with the determination of

the jury.” Citing cases.

[Headnote 2]

Appellant contends that the complaining witness gave contradictory statements at the

preliminary hearing and at the time of the trial and that therefore the evidence is insufficient

to support the judgment of conviction.

In the case of People v. Haywood, Cal.App., 280 P.2d 180, 181, the court stated: “Such

conclusion, however, does not necessarily follow. It is, of course, fundamental that the

credibility of a witness is for the determination of the trier of fact. Hence conflicts and

inconsistencies in the testimony of an individual witness are to be resolved by the fact finding

authority. * * * Thus the trial judge was entitled to accept as true the testimony of the

complaining witness on direct examination rather than the conflicting testimony which she

later gave. * * * People v. Holman, 72 Cal. App. 2d. 75, 89, 164 P. 2d 297.”


[Headnote 3]

Appellant next contends that the court erred in refusing proper impeachment of witness

Albert Levinson. Levinson admitted having suffered a prior conviction of felony. At this

point the witness Levinson was asked this question: “And the district attorney has you under

an information right now, is that correct?”

This question was objected to by the district attorney and the objection was sustained. The

attorney for the appellant wanted to “argue that point.” He was foreclosed by the court from

further argument with the statement that counsel only have the right to inquire as to whether

or not the witness had been convicted of a felony; “that is the limit.” It is the contention of the

appellant that this was a prejudicially erroneous ruling insofar as the appellant is concerned;

that appellant had the right to bring to the jury any possible motives for falsifying his

testimony that were present; that if it were a fact that an “information” was pending against

the witness Levinson this would be an element which the trier of facts should know in

evaluating the credence which they were to give this testimony.

Appellant relies on People v. Pantages, 212 Cal. 237, 297 P. 890, as primary authority for

his contention that the court did so err. In the Pantages case, supra, a question was

propounded to the witness similar to the question in the case before this court, and there, as in

the case at bar, the trial court sustained an objection to the question. The Pantages case was

reversed but that court did not base its reversal solely on that assignment of error. Others

included the failure of the court to allow evidence of previous unchastity on the part of the

complaining witness in a rape case where force and violence were alleged and proved; refusal

to allow physician's testimony to disprove penetration; the giving of erroneous instructions on

sympathy toward defendant and on consent of the complaining witness; and the failure to��


give an instruction as to what the jury could consider in recommending punishment.

The trial court in the Pantages case, supra, relied a great deal on People v. Dillwood, 4 Cal.

Unrep. 973, 39 P. 438, 439, wherein the court stated in part as follows:

“These charges should, however, be proved by the record if objection is made to oral

evidence of them.”

In the case at bar there was no offer of proof, either orally or by way of attempted

introduction of a record, to show that witness Levinson was under information by the district

attorney of Clark County at the time he testified. Furthermore, in addition to his testimony

that he had been convicted of a felony, the record of the examination of appellant is

abounding with statements attacking the credibility of witness Levinson and showing his

possible bias and prejudice against, his possible hostility to, and his possible motive for

testifying against appellant. Still further it may be noted that his testimony was not essential

to the proof of the case against appellant. He testified to no part of the essential element of the

crime charged, and added to the identification of appellant as the perpetrator of the crime only

indirectly by his statement that appellant said to him, “I didn't know what I was doing,” which

statement could be attributed to other matters also.

[Headnote 4]

The law is clear in this state that the appellant must have been prejudiced in respect to a

substantial right before this court will reverse the judgment of the lower court. Section 11266

N.C.L. 1929: State v. Ramage, 51 Nev. 82, 87, 269 P. 489; State v. Willberg, 45 Nev. 183,

188, 200 P. 475; State v. Williams, 47 Nev. 279, 285, 220 P. 555.

[Headnote 5]

Appellant next contends that the court erred in refusing appellant an opportunity of

obtaining counsel of his own choice, and he was thereby denied due process in the

representation which he received at the trial.


David Zenoff, Esq., and Calvin C. Magleby, Esq., represented appellant in the preliminary

hearing and at the trial.

At the time this matter came on for hearing on May 17, 1954, the following took place:

“By the Court: This is case number 65041, entitled, The State of Nevada, plaintiff, vs.

Charles Dominic Polito, defendant. Let the record show the presence of the defendant,

Charles Dominic Polito, his attorney, the District Attorney, and all the officers of the court.

Are you ready to proceed, gentlemen?

“By Mr. Hawkins: The state is ready, your honor.

“By Mr. Zenoff: The defendant is ready, your honor.

“By Mr. Zenoff: If the court please, the defendant indicates that he is not ready to proceed

with the trial. The defendant's counsel is ready for the trial.

“By the Court: Will you get up and tell the court what you have in mind?

“By Mr. Zenoff: If the court please, the defendant has indicated that his father is very ill

back east and his presence is requested or required there. He just informed me yesterday of

that fact and I believe it is in the court's discretion.

“By the Court: Well, there is no legal reason at this time. The motion for continuance will

be denied.

“By Mr. Polito: If your honor please, I want Mr. Zenoff to back off from this case. I want

to get another lawyer. I told him that yesterday.

“By the Court: You cannot wait until the last minute and put the county to the expense of

a jury.

“By Mr. Polito: Your honor, I don't want Mr. Zenoff to take my case. I feel I am being

misrepresented.

“By the Court: The motion will be denied at this time.”

In our opinion it is apparent that appellant was not in good faith when he made those

remarks to the court, for he made the statement only after Mr. Zenoff had moved for a

continuance on an entirely separate ground ��


and the motion had been denied, thus indicating that he only sought to delay the trial. The rule

in this state is well set forth in the case of State v. Arellano, 68 Nev. 134, 148, 227 P.2d 963.

In our opinion the record shows that trial counsel for appellant conducted the trial with all

the skill and ability at their command and assured appellant of a fair trial. It is apparent from

the record that they had, at best, a very difficult task.

[Headnote 6]

The request for a continuance was addressed to the sound discretion of the trial court, and

no diligence to secure other counsel being shown nor any reason for attempting to cause the

withdrawal of trial counsel, the court in its exercise of sound discretion denied the motion.

Accord: State v. MacKinnon, 41 Nev. 182, 187, 168 P. 330.

[Headnote 7]

Appellant also contends that the court erred in not charging the jury as to the effect of a

conviction of a felony as impeachment, and failure to instruct as to alibi evidence. The record,

however, does not show that such instructions were requested by appellant. The appellant has

cited no law or decision to show this court that the law requires the trial court to give any

instructions concerning any part of the theory of the defendant as to the case, in the absence

of a request so to charge. If appellant had felt that a more particular instruction should have

been given, he should have requested it. This he did not do, and cannot now be heard to

complain of the lack of such instruction. State v. Lewis, 59 Nev. 262, 271, 91 P.2d 820.

[Headnote 8]

Appellant contends that the court improperly admitted rebuttal testimony by way of

impeachment without a proper foundation being established therefor. Appellant was cross

examined at length by the district attorney with respect to his movements on the afternoon of

the ��


tenth. In rebuttal the district attorney recalled Chief Davidson to the stand who testified to

conversations with the appellant. He was permitted to testify without objection or motion to

strike that “the defendant gave quite a few answers to where he was at that time and they were

all conflicting.” The point made by appellant is that these conversations at this point were

admissible only on a basis of impeaching the testimony of the appellant. Not only was this

testimony admitted without objection, but the contentions of appellant are met in the

testimony as to time, place and persons present.

In State v. Blaha, 39 Nev. 115, 118, 154 P. 78, 79, this court stated: “‘Self-serving

statements made by or for the accused out of court, explaining suspicious circumstances, may

be proved against him, and their falsity may then be shown. The fact of their falsity admits

them as indicating an attempt to explain away incriminating circumstances by falsehoods.'”

Appellant claims that Davidson was allowed to testify as to the conclusion that appellant

gave conflicting answers as to where he was at the time of the alleged crime. This of itself

might be a conclusion, but the witness in subsequent answers told what those answers were

and the jury was enabled thereby to determine if the conclusion of the chief was correct or

incorrect.

We are of the opinion that there was a proper foundation laid for the impeachment

testimony of the witness Chief Davidson.

As no prejudicial error appears in the record, and as the charges contained in the

information are amply supported by the testimony, the judgment appealed from is affirmed.

Merrill, C. J., and Badt, J., concur.

____________

��71 Nev. 144, 144 (1955) State Ex Rel. Quimby v. City of Reno��

THE STATE OF NEVADA Upon the Relation of GEORGE D. QUIMBY and CLARA

QUIMBY, Relators, v. CITY OF RENO, a Municipal Corporation, FRANCIS R. SMITH,

Mayor, and WILLIAM A. LIGON, CHARLES E. COWEN, EDWIN S. SEMENZA,

THOMAS H. HARVEY, JOHN T. MYLES and MARSHALL GUISTI, Councilmen of Said

City, Respondents.

No. 3865

April 28, 1955. 282 P.2d 1071.

Appeal from judgment of Second Judicial District Court, Washoe County; A. J. Maestretti,

Judge, Department No. 2.

Quo warranto proceedings to set aside annexation ordinance. The district court dismissed

complaint without leave to amend. Owners of land in annexed area appealed. The Supreme

Court, Badt, J., held that under city charter provision giving city council power to extend

boundaries provided majority of property owners in district proposed to be annexed first

petitioned city council to annex such territory, annexation ordinance was not a finding that

the initiatory petition had been signed by majority of property owners in the annexed district,

and action of city council could be reviewed to determine whether majority actually signed

petitions, without an allegation of abuse of discretion, want of good faith or fraud on the part

of the council.


Harvey Dickerson, Attorney General, of Carson City, and R.K. Wittenberg, of Reno, for

Relators.

Samuel B. Francovich, City Attorney, and Bruce D. Roberts, Assistant City Attorney, both

of Reno, for Respondents.

1. Municipal Corporations. Petition of landowners for annexation to city was not a means of invoking action on part of city council,

but to all �� *��


intents and purposes was a species of election, and petition itself effectuated annexation. St.1947, c. 103,

sec. 11A.

2. Municipal Corporations. Under city charter provision that city council shall have power to extend exterior boundaries of city

provided that majority of property owners of district proposed to be annexed, first petition city council to

annex such territory, power of city council to annex adjacent territory is limited to a situation in which

majority of property owners in new proposed district first petition for such annexation. St. 1947, c. 103,

sec. 11A.

3. Municipal Corporations. Under city charter provision that city council shall have power to extend boundaries, if majority of

property owners of district proposed to be annexed, first petition city council to annex said territory,

annexation ordinance was not a finding that initiatory petition had been signed by majority of property

owners in annexed area, and action of city council could be reviewed on petition of landowners within

annexed area without an allegation of abuse of discretion, want of good faith or fraud of city council.

St.1947, c. 103, sec. 11A.

OPINION


Relators filed a proceeding in the nature of a quo warranto in the court below to set aside

an ordinance of the city of Reno annexing certain adjacent territory. The district court

dismissed the second amended complaint without leave to amend, holding that the complaint,

which attacked the annexation ordinance on the ground that the petition for annexation did

not contain the number of signatures required by the statute, did not state a claim upon which

relief could be granted in the absence of allegations of abuse of discretion, want of good faith

or fraud.

The specific question of law presented is whether the annexation ordinance was a finding

that the initiatory petition has been signed by a majority of the property owners in the

annexed district and, assuming it to be such a finding, whether the same was a final and

conclusive determination and not subject to judicial review in ��


the absence of a showing of abuse of discretion, want of good faith or fraud.

The pertinent part of the statute in question is contained in the first portion of sec. 10.505,

art. XII, charter of the city of Reno, 1947 Stats. 392, and reads as follows: “The city council

shall have the power to extend the exterior boundaries or limits of the city so as to annex or

include therein additional lands with the tenements, property, and inhabitants thereof, by the

passage of an ordinance declaring said territory to be annexed; provided, that the majority of

the property owners of the district proposed to be annexed first petition the city council to

annex said territory * * *.” 1

Reno city ordinance No. 1016 ordained as follows: “Pursuant to a petition duly presented

to the city council ��G�� G��*�� G�� *��G��*��*��+�+�+�-

____________________

1

The remaining portion of the section, not involved in this opinion but to which reference is hereafter made,

reads as follows: “* * * and provided further, that when the city council of the city of Reno deems it necessary to

annex additional territory to said city of Reno, and the inhabitants of said territory have not petitioned for

annexation, that the said city council shall pass a resolution declaring its intention to annex said territory,

describing said territory to be annexed, and ordering a plat of the same to be filed in the office of the city clerk

of said city, and notice to be given as to the time when the city council shall hear objections to the annexation of

said territory on the part of the freeholders residing therein, and the residents of said city; said notice to be

published one week in a newspaper in said city of Reno, and to be posted in at least three public places in said

district to be annexed, and to be mailed to all known freeholders in said district sought to be annexed, citing

them to appear and show cause, on the date named, why said land should not be annexed to said city, and giving

the reasons why the said land should be annexed to said city; and provided further, that after said hearing if a

majority of the freeholders residing in said territory sought to be annexed do not protest, the said city council

shall pass an ordinance declaring said property to be annexed to, and be a part of, the said city of Reno, and shall

order a plat showing said territory to be recorded in the office of the county recorder of the county of Washoe,

and said territory shall then be a part of the said city of Reno and subject to all taxes and laws thereof; and

provided further, that in the event a majority of the freeholders in said territory sought to be annexed protest

against the annexation of said territory, that it will require a unanimous vote of the council to pass said ordinance

annexing said territory to the said city of Reno.”


of the city of Reno signed by the owners of the hereinafter described real property, requesting

the city council of the city of Reno to annex to, and make a part of, the city of Reno the

hereinafter described real property, the exterior boundaries of the city of Reno are hereby

extended to annex and include the following described real property * * *.” This is followed

by a metes and bounds description and includes property owned by the relators. Other

sections of the ordinance provide that the annexed property shall be subject to the laws

applicable to the city of Reno and entitled to the benefits of the city government, that plats of

the property be filed and recorded, that the ordinance be published and be effective upon

publication. All councilmen voted aye, and the ordinance was attested by the mayor and city

clerk.

Relators alleged that prior to the enactment of the ordinance no sworn testimony was

received on the question whether the petition was actually signed by the persons purporting to

sign, whether they or any of them were in fact property owners of the district or whether they

constituted a majority of such property owners, and further alleged positively that a majority

of such property owners did not sign the petition. Relators did not allege abuse of discretion,

want of good faith or fraud. Respondents state their position thus: “That the duty to make an

investigation to determine the sufficiency of a petition for annexation rests in the first

instance upon the city council, and * * * this determination is final and binding when called

into question in a judicial proceeding.” They cite McQuillin on Municipal Corporations, 3d

Ed., p. 352, sec. 7.33, which reads substantially in the language just used, and which cites as

authority some of the cases thereafter presented at length by respondents. The principal

authority relied on is People v. City of Los Angeles, 133 Cal. 338, 65 P. 749, and there are

further cited by McQuillin and by respondents State v. Self (Tex. Civ. Appeal), 191 S.W.


2d 756, and People v. Town of Ontario, 148 Cal. 625, 632, 84 P. 205.

It becomes necessary to examine these authorities in the light of the statutes involved, the

nature of the ordinances enacted and the interpretation of these cases by later decisions. As

People v. City of Los Angeles, supra, appears to be the leading California case on the subject,

with reference to the particular facts there in question, and as it is the main authority upon

which respondents place reliance and which apparently was the basis of the decision of the

district court, we find it necessary to quote part of the holding of that court at some length.

“The act of 1889, under which these proceedings were taken, provides that the boundaries of

any incorporated town or city may be changed, or new territory annexed thereto, upon

proceedings being taken as therein provided. Touching the petition therefor the statute

provides: ‘The council, board of trustees or other legislative body of any such municipal

corporation, upon receiving a written petition therefor containing a description of the new

territory asked to be annexed to such corporation, and signed by not less than one-fifth in

number of the qualified electors of such municipal corporation, computed upon the number of

votes cast at the last general municipal election held therein, must, without delay, submit to

the electors of such municipal corporation, and to the electors residing in the territory

proposed by such petition to be annexed to such corporation, the question whether such new

territory shall be annexed to, incorporated in, and made part of such municipal corporation.'

The complaint does not set out a copy of the petition, and the only defect therein alleged in

the complaint or urged in argument is that it was not signed by at least one-fifth of the

qualified electors of the city, computed upon the number of votes cast at the last general

municipal election held therein. The jurisdiction of the city council to order an election

depends upon the presentation to it of such petition signed by the requisite ��


number of electors. Whether it was so signed was a question of fact submitted by the statute

to the decision of the council, and the question arising upon this branch, the case is whether

the adjudication of that question of fact by the city council is conclusive. The act might have

provided that that question should be submitted to the decision of a court or jury; but it is

obvious that the city council, if so authorized by the statute, is as capable of its correct

decision as any tribunal that might have been named, and that such decision is, under the

statute, as conclusive as though made by any other tribunal to which the legislature might

have submitted it. ‘An inferior board may determine conclusively its own jurisdiction or

power by adjudicating the existence of facts upon the existence of which its jurisdiction or

power depends. Where, however, the power depends, not upon the existence or nonexistence

of matters in pais, to be established by evidence, but upon allegations in a petition, a portion

of the record, the question is not the same.' In re Grove St., 61 Cal. 453; Humboldt County v.

Dinsmore, 75 Cal. 607, 17 Pac. 710; Farmers' & Merchants' Bank v. Board of Equalization,

97 Cal. 318, 32 Pac. 312. In Wells, Jur., § 61, it is said: ‘Where the jurisdiction of even an

inferior court is dependent on a fact which that court is required to ascertain and settle by its

decision, such decision is held conclusive.' Freeman, in his work on Judgments, in speaking

of tribunals acting judicially (section 531), says: ‘As a general rule, whenever any person or

persons have authority to hear and determine any question, their determination is, in effect, a

judgment having all the incidents and properties attached to a similar judgment pronounced in

any regularly created court of limited jurisdiction acting within the bounds of its authority.

Hence, whenever any board, tribunal, or person is by law vested with authority to decide a

question, such decision, when made, is res judicata, and as conclusive of the issues involved

in the decision as though the adjudication had been made by a court ��=�� *�� -


of general jurisdiction.' All such adjudications are conclusive against collateral attack, and as

the statute has not, in the case at bar, given any appeal or review by a higher tribunal, it

follows that it can be vacated only in the manner and upon the grounds that would justify the

vacation of a judgment rendered by a court of record, and a mere error in the adjudication of a

question of fact not procured by fraud, extrinsic or collateral to such question, is not a ground

upon which it may be vacated, since, if it were, no adjudication of a question of fact would

ever become final so long as new evidence could be had, or a different conclusion be reached

upon the same evidence.”

It is important to note from the foregoing (1) that the court there held that the statute

submitted the question of fact as to the signing of the petition by the requisite number to the

decision of the city council; (2) that it implied that the city council was required by the statute

to ascertain and settled this fact by its decision; and (3) that the result of the filing of a

petition signed by not less than one-fifth of the qualified electors of the city was that the city

must call an election which, to effectuate annexation, must result in a majority vote of the

electors of the city and the electors within the annexed territory.

State v. Self, supra, also concerned the sufficiency of a petition which did not effectuate an

annexation (to the extent that it was a species of election) but initiated proceedings for an

election. The court there significantly said: “Under the charter provision here involved, the

petition was a step preliminary to the election itself. In some instances a petition may be a

species of an election, but that is not true in this case.” People v. Town of Ontario, supra, and

many of the other cases relied upon likewise involved petitions that simply initiated

proceedings for an election to decide the issue. The distinction was clearly recognized in the

later California case of Willcox v. Engebretsen, 160 Cal. 288, 116 P. 750, 751.


Here the supreme court, referring to People v. Los Angeles, supra, and its allied cases and to

other cases apparently holding in opposition, calls attention to the fact that it is necessary to

state some of the fundamental distinctions not always noted and which tend to explain the

apparent discrepancies. The court first accepts this proposition as being beyond dispute:

“Where a statute requires such a petition to be filed as a condition precedent to the making of

such order, the board or council has no power to make the order until a sufficient petition has

been filed.” Citing cases. “If the statute provides that such proceeding may be begun by the

filing of a petition with the particular board or council having the authority, the fact that such

body acts upon a petition which does not appear bad upon its face, and proceeds thereon

according to law, is usually held to be conclusive of the sufficiency of the petition against any

collateral attack. People v. Los Angeles, supra, was a case of this character.” (Emphasis

supplied.) While other distinctions are made, we conclude that under the Engebretsen case,

the rule of the city of Los Angeles case and all allied cases is confined to a situation

whereunder the petition in question simply initiates proceedings for the determination of the

annexation by an election of the property owners, electors, residents etc., as the case may be.

We need refer then only to a few of the holdings which in our opinion conclusively

establish the right to a review of the facts constituting the conditions precedent, in the

absence of which the inferior board is without authority or jurisdiction to act, where the

action of the board does not simply initiate election proceedings but in itself is a species of

election which effectuates the annexation. The best reasoned of these cases we find to be

Kenney v. Bank of Miami, 19 Ariz. 338, 170 P. 866, 868. In question was the legality of the

board's order of disincorporation. Kenney relied upon the order of disincorporation, which

recited the filing of a petition and ��2I��*�+�+�+�� =-�7��


that it contained the signatures “‘of more than two-thirds of the persons paying property tax

* * * in the preceding year and residing within such town, and such is found to be the fact.'”

Kenney did not maintain that the petition contained the requisite number but insisted that the

finding of the board was conclusive and not subject to be disproved by parol evidence. The

town alleged that the petition for disincorporation did not contain the signatures of two-thirds

of the persons paying property tax within the town in the preceding year and residing within

the town at the time of the filing of the petition. It amplified by naming twenty-two of the

persons appearing on the petition who, it was alleged, did not sign, and fifteen who signed

under fraudulent representations or duress, and thirty-six who were not residing in the town at

the time the board acted, and that many names were duplicated. The court said that the

question of the conclusiveness of the order depended upon the terms of the statute and that if

it imposed on the board the duty to ascertain and pass upon the facts its decision of the

existence of those facts is final and conclusive, but where the existence of the facts is an

indispensable condition to act and the board is not clothed with the power or machinery to

find the facts, its determination is not final or conclusive. The court then held that the

existence of the facts was a condition in the absence of which the board could not legally act,

and since the law failed to enjoin the power and duty to find and settle the indispensable fact,

the board's action was not conclusive. It held that “the actual fact of a petition of two-thirds”

etc. must be presented before the board acquired jurisdiction of the subject matter. The court

cited with approval an early New Mexico case (State v. Porter, 169 P. 471) which stated: “In

Freeman on Judgments, par. 523, the rule is thus stated: ‘Wherever the jurisdiction of the

court not of record depends on a fact which the court is required to ascertain and settle by its

decision, such decision, if �� =�A��9�� *�� *��


the court has jurisdiction of the parties, is conclusive, and not subject to any collateral attack.'

But if the local board or other tribunal is authorized and empowered to take certain action

only upon the petition of a majority of the property owners, taxpayers, or residents within a

certain defined area or district, and is not vested with authority to determine whether or not

the petition is signed by the owners of the required amount of property, residents, or

taxpayers, then its action may at any time be shown to have been without jurisdiction and

void, by establishing the fact that the petition on which it acted was not so signed.” 2 The

court repeats that the determination of the board does not conclude the question “for the

reason that the Legislature has seen fit to make the board's jurisdiction depend upon the actual

fact of two-thirds of the persons named, petitioning, and not upon the board's finding * * *.”

The court then states that if the allegation of lack of qualified signers is true, then the board

never acquired jurisdiction.

To like effect is City of West University Place v. State, C.C.A. Tex. 1932, 56 S.W.2d

1081. In West End v. State, 138 Ala. 295, 36 So. 423, a like rule was adhered to even though

the petition merely initiated election proceedings to determine incorporation of the town.

Similar to this is Kamp v. People, 141 Ill. 9, 30 N.E. 680.

[Headnote 1]

In accordance with the holding of these cases we must reject the contention of the

respondents that under the charter provisions quoted: “The presentation of a petition is not

jurisdictional in the sense that without a valid petition the council could not act, but a petition

of this type is to be regarded more as a means of invoking action on the part of the council.

The council has jurisdiction to annex territory irrespective of the petition ��-

____________________

2

Three later Arizona cases confirmed and approved this holding. Parnell v. State, 68 Ariz. 401, 206 P.2d

1047; Hunt v. Norton, 68 Ariz. 1, 198 P.2d 124, 5 A.L.R.2d 668; Town of South Tucson v. Board of

Supervisors, 52 Ariz. 575, 84 P.2d 581.


being presented.” If the contention contained in the last sentence is intended to refer to the

alternative method of annexation recited in footnote 1, we must observe that such method is

not to any extent whatever involved herein. The council in the instant case did not purport to

initiate annexation of the territory of its own initiative upon notice and hearing. That the

instant petition was simply “a means of invoking action on the part of the council” (in the

sense of invoking such action as the calling of an election) we are unable to grant. The statute

gave the city council “power to extend the exterior boundaries * * * of the city * * * by

passage of an ordinance” and the city ordained, pursuant to the petition, that the boundaries

were extended accordingly. To all intents and purposes (in the sense that the petition was a

species of election) the petition effectuated the annexation.

People v. City of Los Angeles, supra, so strongly relied on by relators emphasizes that

whether the initiatory petition was signed by the requisite number of electors “was a question

of fact submitted by the statute to the decision of the council.”

Respondents also rely upon State v. Holcomb, 95 Kan. 660, 149 P. 684, but the

constitutional and statutory provisions there involved are so materially different from those

here existing that the case affords little help. It is true that the case held that the finding of the

county commissioners of the existence of the necessary facts (that the number of inhabitants

exceeded 200 and did not exceed 2,000, that a majority were in favor of incorporation, etc.)

was not subject to review and that its action was not “subject to defeat by a recount of the

electorate made by a court at some subsequent time.” It emphasized however: “It is not

enough that the petition state that it is signed by a majority of the electors. It must be so

signed.” (Emphasis supplied.) It is important to note that the statutory authorization to the

county commissioners to annex the territory included �� *��


full authority to make an investigation, at which, after publication of the petition, the

commissioners found a majority of the taxable inhabitants to be in favor of incorporation. The

court said that under the implications of the statute it was necessary for the board to

determine the facts. The Kansas court approved Board of County Commissioners of Clay Co.

v. Markle, 46 Ind. 96, which was similar in its nature and in its holding. The Markle case, like

the Holcomb case, held that compliance with the statute did not rest on the statement in the

petition that a required number had signed but on the actual fact that the required number did

sign. The Indiana court held that when the petition had been presented, the number of electors

signing, their qualifications, the presentation of their deed, and deposit of money, etc., all as

required by the statute, were things to be ascertained and determined by the board. The

Kansas case also relied on People v. Town of Loyalton, 147 Cal. 774, 779, 82 P. 620, in

which the petition initiated proceedings looking toward an election for incorporation. Again

the court in that case emphasized that by express provision of the statute the board was

required upon a noticed hearing to ascertain and determine the facts. The Kansas case further

relied on State ex rel. Crow v. Flemming, 158 Mo. 558, 59 S.W. 118, in which the court held

that the decision of the board was exclusive. Here again however, the Missouri court held that

the board was exclusively authorized and empowered by the state to determine the very facts

which the state was attempting to question in quo warranto.

[Headnote 2]

In discussing the cases upon which respondents rely, we have stressed the point that in

such cases it was held that the statute in question vested in the inferior board the power to

investigate and determine the facts. The writer of the note found in 5 A.L.R.2d 675, after

noting that upon inquiry on certiorari the cases almost without exception run to the effect that

the finding of �� <�26��=��-


jurisdictional fact is not conclusive on the reviewing court, says: “It may happen that a statute

in question contemplates that the tribunal's finding as to a particular jurisdictional fact shall

be conclusive.” Theoretically it would seem clear that there is a distinction between findings

which are foundationally essential to jurisdiction and those dealing with matters intended for

decision by the board in the exercise of its jurisdiction. These sundry inquiries lead us to the

question of the legislative intent found in sec. 10.505, Article XII of the Reno charter. We

think that nothing can be clearer than the wording of the statute itself that the power of the

city council to annex adjacent territory was limited to a situation in which the majority of the

property owners in the new proposed district first petition for such annexation. The council's

power to act, its jurisdiction, is not called into play until such a majority petition is first filed.

The statute contains no word or suggestion that the council investigate, determine or ascertain

how many property owners were in the proposed new district, or whether the petitioners

constituted a majority, or what constituted a property owner, or whether the signatures on the

petition were valid, or whether they included, as purported, separate property owners,

husband and wife, lessor or lessee, contracting purchaser, contracting seller, mortgagee in

possession, or other concepts of ownership. Nor did the city council purport to find any of

these things. Respondents contend that if there is not an express finding by the board of the

sufficiency of the petition, such finding must be implied. If so, the implication would have to

be found in the opening clause of the ordinance. It read: “Pursuant to a petition duly presented

to the city council of the city of Reno signed by the owners of the hereinafter described real

property

* * *.” (Emphasis supplied.) By the owners, that is to say, by all of the owners. Yet, on its

face, this cannot be so. This would include the relators themselves, yet the entire record

justifies the conclusion that the relators did not sign the petition for annexation.


And the reason for the legislative limitation of power further appears from the statutory

provisions for a second method of annexation. The same section provides an entirely different

method. The first method, discussed above, arises out of the desire of a majority of owners of

property in territory adjoining the city to become annexed to it. It is their petition. They desire

to be annexed. They are willing to subject their property to the higher taxes of municipal

government in return for the benefits to be obtained. However, under the second statutory

method of annexation, the city council itself initiates proceedings to annex adjoining territory.

It reaches out to bring additional territory within its jurisdiction and within its taxing power.

But to accomplish this, the council must pass a preliminary resolution declaring such

intention, describing the property, ordering the filing of a plat and requiring notice to be given

by publication, posting in at least three public places in the district to be annexed, and mailing

to all known freeholders in the district. After hearing and opportunity to protest, an order of

annexation may be made only in the absence of protest by a majority of the freeholders in the

district, or, under certain conditions, even in the face of such protest. Such second method

was not followed by the city council and we are not called upon to analyze it other than to

note its clear indication of the legislative intent when the first method is followed.

[Headnote 3]

Opportunity to object to an enforced change in the nature of the municipal jurisdiction

under which they will hereafter fall, has always been jealously guarded. “There are few, if

any, acts of state bearing upon individuals” says Mr. McQuillin, Municipal Corporations,

Vol. 1, p. 568, “more important than those which determine their liberty to be included in

particular municipalities; and the cases are rare in which they have not been allowed an

opportunity of being heard in every ��-


step of the proceeding.” In the present case property owners in the new district, possibly a

majority of them, an actual majority under the allegations of the petition, have not yet had an

opportunity to be heard. The order of the district court sustaining the city's motion to dismiss,

if it should stand, would forever deprive them of that opportunity. And this, despite the fact

that the board's determination could not be final and conclusive because the statute had failed

to clothe the board with the power and machinery to find the facts. Kenney v. Bank of Miami,

supra.

Behind the expressed reasoning in those cases in which the board's finding of the

sufficiency of the initiatory petition was held not subject to judicial review after a majority

vote in a duly held election, we constantly discern the question of policy. To accept the

board's determination of sufficiency would in such case “seem more politic.” State v. Self,

supra. If, indeed, only 19 percent of the electors petitioned, instead of the 20 percent required

in People v. Los Angeles, supra, and the required filing was not expressly made a condition

precedent to vesting of jurisdiction, and if, at a duly conducted election, 99 percent of the

electors voted for annexation, every consideration of policy would condemn an attempted

annulment of the virtually unanimous will of the electors by an attack on the sufficiency of

the initiatory petition which simply put in motion the election machinery. But contra where

such elements exist as in the present case: (1) The statute did not expressly vest in the board

the power or the duty to make an investigation of the fact. (2) Nothing indicates that it did

make such investigation. (3) It is alleged (and presumed to be true under the motion to

dismiss) that a majority did not sign the petition. (4) The filing of a majority petition was a

condition precedent to the vesting of jurisdiction under the clear wording of the statute. (5)

The petition itself—not an election put in motion by the petition—was the basis of the

annexation ordinance.


The briefs and oral arguments include citation of numerous additional authorities and

discussion of incidental matters. These have all been carefully considered, but a discussion of

them could add nothing to the conclusions we have drawn. For the reasons stated, we are

compelled to hold that the district court's dismissal of the second amended complaint was

error.

The judgment is reversed and the case is remanded to the district court for further

proceedings not inconsistent with the views herein expressed.


____________

��71 Nev. 159, 159 (1955) Plunkett v. Plunkett��

ROBERTA PLUNKETT, Appellant, v. MARVIN K.

PLUNKETT, Respondent.

No. 3826

May 4, 1955. 283 P.2d 225.

Appeal from the Eighth Judicial District Court, Clark County; A.S. Henderson, Judge,

Department No. 2.

Action by husband for divorce. The district court refused divorce to husband but granted

one to wife, and she appealed. The Supreme Court, Eather, J., held that where parties were

raised and married in Colorado and first matrimonial domicil was in that state, where

eight-month stay in Nevada was for purpose of completing construction job, where husband

enlisted as draft registrant from Colorado, where parties bought home and automobiles in

Colorado and where, in unsuccessful suit for divorce brought by husband in Colorado, he

stated he was bona fide resident of that state, he was not bona fide resident and domiciliary of

Nevada for required statutory period prior to his suit for divorce, and Nevada court was

thereby without jurisdiction to grant divorce.


See also 70 Nev. 553, 277 P.2d 380.


Robert L. Gifford, of Las Vegas, for Appellant.

Morse, Graves & Compton, of Las Vegas, for Respondent.

Divorce.

Where parties were raised and married in Colorado and first matrimonial domicil was in that state,

where eight-month stay in Nevada was for purpose of completing construction job, where husband

enlisted as draft registrant from Colorado, where parties bought home and automobiles in Colorado and

where, in unsuccessful suit for divorce brought by husband in Colorado, he stated he was bona fide

resident of that state, he was not bona fide resident and domiciliary of Nevada for required statutory

period prior to his suit for divorce, and Nevada court was thereby without jurisdiction to grant divorce.

OPINION


This is an action for divorce brought by respondent husband against appellant wife. The

trial judge refused a divorce to the husband but granted one to the wife. Aggrieved by this

unwelcome grant of relief the wife has taken this appeal.

She contends that the court was without jurisdiction to grant a divorce to either party for

the reason that neither party was domiciled in this state at the time of the suit. The court

found that the husband was an actual bona fide resident and domiciliary of this state for the

statutory period prior to suit. The wife contends that this finding is not supported by the

record.

This finding was based upon the following: (1) residence of the parties in Clark County for

a period of approximately eight months in 1941, which residence was terminated by induction

of the husband into military service, which service was continued to date; (2) the husband's

testimony that he left Nevada to enter military service with the intent of returning to make his

home in this state as soon as termination of his service permitted; that this intention has

remained with him ��


ever since. The husband contends that with this support for the finding, under our established

practice we must refuse to disturb it.

There is no denial of the physical presence of the parties within the state in 1941. The

issue is as to the husband's residential intent for the ensuing twelve years prior to suit. Upon

this issue the facts overwhelm and completely destroy the evidentiary value of the husband's

testimony as to intent.

In the first place it is (at least) neutralized by sworn statements made by the husband in

1951 and 1952, in connection with an unsuccessful suit for divorce brought by him in

Colorado, to the effect that he was then a bona fide resident of that state. His wife's affidavit

confirmed this. As between these conflicting statements of intent, both made under oath, the

undisputed facts leave no room for doubt. Clearly the Nevada residence (if it ever existed as

domicil), was abandoned for a Colorado residence.

The parties were raised in Colorado. They were married in Colorado. Their first

matrimonial domicil was in that state. Their eight-month sojourn in Nevada was for the

purpose of completing a job of construction at Henderson, just as they had in the past

frequently moved from place to place for respondent's work on construction projects. When it

was completed the husband enlisted as a draft registrant from Colorado. For a while the

parties lived together on various posts but later the wife returned to Colorado. Thereafter

whenever furlough permitted the husband returned to Colorado. The parties bought a home in

Denver; cars were bought and licensed in Colorado. Never did the parties return to Nevada.

Never since 1941 did they maintain a home or own home property there. Never did the

husband evidence the slightest interest in this state until the Colorado divorce resulted

unsuccessfully.

We conclude that the finding of Nevada residence is without support and the court without

jurisdiction to ��


grant divorce to either party. Barber v. Barber, 47 Nev. 377, 222 P. 284, 39 A.L.R. 706.

Reversed with costs and remanded with instructions that the action be dismissed.


____________

��71 Nev. 162, 162 (1955) Sharp v. Twin Lakes Corp.��

THOMAS E. SHARP, Appellant, v. TWIN LAKES CORPORATION, a Nevada

Corporation, and J.D. WRATHER and LLOYD L. ST. JOHN, Respondents.

No. 3827

May 11, 1955. 283 P.2d 611.

Appeal from the Eighth Judicial District Court, Clark County; Frank McNamee, Judge,

Department No. 1.

Action for declaration of rights under lease and to require lessor to give his consent to

payment to lessee of one-half of sum placed in escrow to protect property against liens. The

Eighth Judicial District Court, Clark County, Frank McNamee, Judge, entered judgment

adverse to the lessor and the lessor appealed. The Supreme Court, Merrill, C. J., held that

evidence on issue as to lessees' right to return of deposit, pursuant to agreement entitling

lessees to such fund after having expended $100,000 for agreed improvements to leasehold

and giving of satisfactory proof of financial ability to complete program free from liens and

debt, sustained finding that there had been such an approximation to complete performance

that lessor had obtained substantially what was called for by contract.

Judgment affirmed.

Lindley, Lazar & Scales, of San Diego, California, and Taylor & Gubler, of Las Vegas, for

Appellant.

Jones, Wiener & Jones, and David Goldwater, of Las Vegas, and Ralli, Rudiak & Horsey,

of Las Vegas, for Respondents.


1. Landlord And Tenant. Evidence, on issue as to lessees' right to return of deposit pursuant to agreement, entitling lessees to such

fund after having expended $100,000 for agreed improvements to leasehold and giving of satisfactory

proof of financial ability to complete program free from liens and debt, sustained finding that there had

been such an approximation to complete performance that lessor had obtained substantially what was

called for by contract.

2. Contracts. The law implies a substantial rather than a literal or exact performance of terms of building contracts.

3. Landlord And Tenant. A covenant by a lessee to make improvements upon leased premises is to be given reasonable

interpretation in light of purposes to be served and results to be accomplished and, as against lessor,

substantial compliance with covenant is sufficient.

4. Landlord And Tenant. Where rent payments due under lease had, with knowledge of defaults, been accepted by lessor to and

beyond date of commencement of suit for forfeiture of lease, and lessor had given lessees no intimation that

he regarded lease as forfeited, his right to claim forfeiture had thus been waived.

OPINION


This is an action brought by respondent Twin Lakes Corporation as lessee for the return of

a deposit made by it to secure performance of the terms of a lease. Judgment of the trial court

was in its favor and the lessor-defendant has taken this appeal. A counterclaim was filed by

the defendant below to establish that the lease had been forfeited by the lessee through breach

of its terms, and for costs of suit and counsel fees. Judgment of the trial court was in favor of

the lessee upon this counterclaim and the lessor has appealed from that judgment as well. The

interests of the individual respondents are aligned with those of the lessee. In our view the

judgment in both respects must be affirmed. In both respects the essential question is whether

the lessee had substantially performed what was required of it. The trial court, sitting without

a jury, found that it had and the record supports this determination.


The leased premises are located in Clark County near Las Vegas and are known as Twin

Lakes Farm. The lease was executed in 1947 for a term of ten years subject to conditional

option to renew and option to buy. By the time this action was brought the lease had thrice

been amended. Under its terms the property was to be operated as a resort. It included an

orchard, vineyard, pasture lands, a swimming pool, refreshment facilities, two scenic lakes

and a dwelling house used by the lessor. By the terms of the lease as amended, the lessee

agreed to maintain the dwelling house for the exclusive use of the lessor. It was also to

construct, for the use of resort guests, eight bungalows of six living units each and to build for

the use of the lessor a garage and workshop. It was also to grade and pave a road to the

premises from the main highway.

To secure completion of this building and paving program and protect the property against

liens, a deposit of $25,000 was placed in escrow. The third amendment to the lease specified

the conditions of that escrow. In brief it provides that the lessee should become entitled to

one-half of the deposit (1) upon having expended $100,000 in the agreed construction; (2)

upon giving satisfactory proof of financial ability to complete the program free from liens and

debt. The amendment to the lease provides for the form and manner in which demand was to

be made by the lessee and proof made that the conditions had been met; that when proper

demand had been made the lessor would give his consent to payment of the sums due to the

lessee.

In May 1952 the lessee made demand for payment upon the escrow holder. The demand

showed expenditure of $166,947.27 upon the construction project; that unpaid construction

bills totalled $5,610.02; that $5,855.48 was needed to complete the agreed construction; that

the lessee's share of the deposit would thus complete the project free from debt. A copy of the

demand was mailed to the lessor in California with a request ��


that he give his consent. This he refused to do. In August 1952, three months after demand,

this action was brought for a declaration of rights under the lease and to require the lessor to

give his consent to payment. At the time of trial in March 1954, it was established that the

building program had been completed by the lessee without awaiting receipt of the escrowed

fund. Judgment in favor of the lessee was given, requiring the lessor's consent to the return to

the lessee of the sum of $11,434.35 of the fund.

The lessor's principal defenses to the complaint were: (1) that the demand had not properly

been made; (2) that construction did not conform to plans and specifications.

Upon the first point the lessor complains as to the form of the demand, as to the manner in

which supporting vouchers and proofs were made available and in other respects contends

that the demand in form and manner did not meet the requirements of the lease. The trial

court found that in these respects there had been substantial compliance with the lease

provisions. The record amply supports this holding. Certainly the demand together with the

supporting proof which was made available to the lessor would have enabled him to

determine whether or not the conditions had been met.

Upon the second point the lessor has established that in numerous respects the building

and paving program did not conform to plans and specifications. The lessor does not appear

to deny that the lessee has established its financial ability to complete the project according to

its own concept of what would constitute completion. The lessor, rather, challenges the

lessee's concept of completion and thus takes the position that the lessee has failed to

establish what the cost of true completion would be.

[Headnote 1]

We see no need to encumber the record with a listing of the many deviations from plans

and specifications ��


asserted by the lessor. (Forty-five were specified upon the garage and workshop alone.) The

trial court concluded that the contract had been substantially performed. From a reading of the

record we are drawn to the same conclusion. In most instances it must be conceded that the

deviations were trivial and technical. Viewing the contract and its performance as a whole it

must be said that there was here “such an approximation to complete performance that the

owner [has obtained] substantially what was called for by the contract, although it may not be

the same in every particular.” Handy v. Bliss, 204 Mass. 513, 90 N.E. 864, 134 Am.St.Rep.

673.

[Headnotes 2, 3]

It is now well established as the general rule with respect to building contracts that the law

implies a substantial rather than a literal or exact performance of the terms of the contract.

See: Lloyd on the Law of Building and Buildings, 2d ed. secs. 31, 39; 9 Am.Jur. 30, Building

and Construction Contracts, sec. 40; ann. 24 L.R.A. (N.S.) 327; 134 Am.St.Rep. 679. It

would seem to follow, a fortiori, that a covenant by a lessee to make improvements upon the

leased premises is to be given a reasonable interpretation in the light of the purposes to be

served and the result sought to be accomplished and that, as against the lessor, substantial

compliance with the covenant is sufficient. See: 51 C.J.S. 1131, Landlord and Tenant, sec.

391.

The agreement of the parties with reference to the escrowed fund must, then, be construed

to contemplate proof of financial ability to complete the contract substantially in accordance

with its terms. This proof the lessee has given and accordingly is entitled to return of the

fund. The lessor has offered no proof that he has suffered damage by reason of any of the

deviations.

We concur, then, with the judgment of the trial court upon the complaint of the lessee.

As to the lessor's counterclaim for forfeiture of the ��


lease, he relies upon numerous breaches in addition to those relating to the building and

paving program. These deal largely with the manner in which the premises were maintained

and used, together with the lessee's failure properly to maintain insurance and promptly to

discharge tax and rent obligations. Again the lessor has failed to show damage.

[Headnote 4]

It is admitted that rent payments due under the lease have, with knowledge of the defaults,

been accepted by the lessor to and beyond the date of commencement of this suit. He has,

until filing of his counterclaim, given the lessee no intimation that he regarded the lease as

forfeited. His conduct was consistent only with an election to hold the lessee to its obligations

under the lease. Clearly he has, by acceptance of rentals under these circumstances, affirmed

the existence of the lease and recognized the lessee as his tenant. His right to claim forfeiture

has thus been waived. Kern Sunset Oil Co. v. Good Roads Oil Co., 214 Cal. 435, 6 P.2d 71,

80 A.L.R. 453; See: ann. 109 A.L.R. 1267, 1269.

Further the trial court was impressed by a comparison between the sum of these breaches

and the total expenditures of the lessee upon the premises. The evidence is that, including the

construction and paving costs already mentioned, between $350,000 and $450,000 has been

expended upon this property under a lease which carries a conditional option to purchase at a

price of $225,000. The court concluded that the breaches were comparatively trivial and that

there had been such substantial compliance with the terms of the lease as to preclude

forfeiture. A study of the record impels us to the same conclusion.

In support of his counterclaim for costs and counsel fees the lessor relies upon a lease

provision that he be reimbursed in these respects should he “be made a party, without his

fault, to any litigation brought by or against the tenants.” The trial court ruled that since the

lessor ��

��


was not justified in withholding his consent, he was in no position to take advantage of this

provision. We concur.



____________

��71 Nev. 168, 168 (1955) Hinrichs v. District Court��

THEODORE GENE HINRICHS, H. DON GULOVSEN and WILLIAM ROBERT

BURMAN, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF

NEVADA, in and for the County of Ormsby, and HONORABLE FRANK B. GREGORY,

Presiding Judge, Respondents.

No. 3869

May 13, 1955. 283 P.2d 614.

Original petition for writ of prohibition to prohibit respondents from proceeding with trial

of criminal charges against petitioners.

The Supreme Court, Badt, J., held that statute defining as first degree murder, with death

penalty, the death of a human being caused by an escape or an attempted escape of persons

lawfully imprisoned in the state prison does not violate the equal protection clause by reason

of alleged arbitrary classification.

Denied.

Diehl & Recanzone, of Fallon, Homer G. Angelo, of Carson City, and Drendel & Dixon, of

Reno, for Petitioners.

Cameron M. Batjer, District Attorney, Carson City, for Respondents.

1. Constitutional Law; Homicide. Statute defining as first-degree murder, with death penalty, the death of a human being caused by an

escape or an attempted escape of persons lawfully imprisoned in state prison does not violate equal

protection clause by reason of alleged arbitrary classification. N.C.L.1929, sec. 10499.


2. Indictment And Information. Information which charged that state prisoners conspired together to and did form intentions and common

purpose of escape from prison and that they did escape from prison and while engaged in such escape

kidnapped a prison guard, who was killed by a bullet fired by a guard in attempt to prevent escape, was not

so ambiguous as to render it impossible for prisoners to ascertain that they were charged with crime of

first-degree murder. N.C.L.1929, sec. 10499.

3. Constitutional Law; Criminal Law; Homicide. Statute making it first-degree murder to cause death of a human being by an escape or attempted escape

of persons lawfully imprisoned in state prison is not void for uncertainty and does not deprive persons

charged thereunder of due process of law. U.S.C.A. Const. Amend. 14, sec. 1; N.C.L.1929, sec. 10499.

4. Criminal Law. Statute providing that death of human being caused by an escape or attempted escape of persons lawfully

imprisoned in state prison shall constitute first-degree murder, with the death penalty, does not provide a

cruel and unusual punishment disproportionate to the offense. N.C.L.1929, sec. 10499.

OPINION


Petitioners seek a writ of prohibition to prohibit the respondent court from proceeding with

the trial of a criminal charge against petitioners. The petition attacks the constitutionality of

our statute defining as first degree murder, with the death penalty, the death of a human being

caused by an escape or attempted escape of persons lawfully imprisoned in the state prison.

The specific points of this attack are dealt with in this opinion, in which we hold that there is

no merit in any of the single points of the challenge or in the combination of all of them.

The statute in question is sec. 10499, N.C.L. 1929, which has its origin in 1866 Stats. 166,

and reads as follows: “If one or more persons, lawfully imprisoned in the state prison, shall,

separately or together, escape, or shall, separately or together, attempt to escape from such

prison; and being so engaged, he, they, or either �� -


of them, shall cause the death of any human being in making, or attempting to make, such

escape, the prisoner or prisoners causing such death shall be deemed guilty of murder in the

first degree, and, on conviction thereof, shall suffer death.” Under this section the district

attorney of Ormsby County filed an information charging petitioners with the commission of

murder in the first degree in the manner following: “That the said defendants did, on or about

the l7th day of September, 1954 * * * while lawfully imprisoned in the said Nevada State

Prison, did then and there conspire together, to, and did form the intentions and common

purpose of escape from the Nevada State Prison, and did then and there escape from the

Nevada State Prison and while so engaged in said escape did, willfully, unlawfully and

feloniously, and without authority of law, kidnap, seize, take, hold and carry away another

person, to-wit, George Everett Miller, a guard at said State Prison, and did force him to

accompany them * * * out of the said Nevada State Prison and from a place of safety to a

place known by them to be a place of great danger and did then and there expose him, the

said George Everett Miller, to said danger from attack upon them * * * by guards of the said

Nevada State Prison in preventing them from escaping and did cause the said George Everett

Miller, a human being, while being so exposed, to have inflicted upon him, mortal wounds by

a bullet fired by a guard in the said Nevada State Prison in an attempt to prevent [their]

escape * * *; that from said mortal wounds the said George Everett Miller then and there

died.”

The district court overruled a demurrer based upon virtually the same points presented to

this court and set the case for trial, which has been delayed by our preliminary writ.

It is asserted by petitioners (1) that the act denies them the equal protection of the laws; (2)

that due process is lacking because the information is so ambiguous as to render it impossible

for petitioners to ascertain the crime ��,�:$;�� ,��:0;��


with which they are charged; (3) that the act, because of its uncertainty, would deprive

petitioners of their lives and liberty without due process of law; and (4) that it provides a

cruel and unusual punishment disproportionate to the offense.

[Headnote 1]

(1) The first contention, that the statute denies to petitioners the equal protection of the

laws, is based upon the rule that “classification” must always rest upon some difference

which bears a reasonable and just relation to the act in respect to which the classification is

proposed and can never be made arbitrarily and without any such basis. This rule, enunciated

in Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 443, 46 L.Ed. 679, is

amply supported by Mr. Justice Harlan's citations in that case, although it is there conceded

that, generally speaking, the state when enacting laws may, in its discretion, make a

classification of persons in order to subserve public objects. Mr. Justice McKenna dissented,

but expressed some views in harmony with the majority opinion. He said: “Classification,

therefore, is necessary, but what are its limits? They are not easily defined, but the purview of

the legislation should be regarded. A line must not be drawn which includes arbitrarily some

persons who do and some persons who do not stand in the same relation to the purpose of the

legislation. But a wide latitude of selection must be left to the legislature.”

In view of the foregoing it is important to note that the statutory classification is attacked

by petitioners not because of the persons included therein, or because of the persons excluded

therefrom (as in Connolly v. Union Sewer Pipe Co., supra), but because the classification

would include all participants in an escape or attempted escape resulting in the death of a

person in any one of a series of recited hypothetical cases. Infirmity of the statute under the

equal protection clause is not thus proved. The statute applies to all persons lawfully

imprisoned in the state prison. The classification is clear.


In applying to all persons thus lawfully imprisoned, it excludes all other persons. Persons not

there imprisoned could not escape or attempt to escape therefrom and could not come within

the purview of the statute. Is then the classification based upon some reasonable

ground—some difference which bears a just and proper relation to the classification?

Petitioners rely on Ex Parte Mallon, 16 Ida. 737, 102 P. 374, 378, 22 L.R.A., N.S., 1123. The

statute in that case provided a punishment for a prisoner escaping from the state prison as a

term equal in length to the term he was serving at the time of the escape. This was held to be

entirely unrelated to the crime for which he was being punished, namely, the escape, as a

person escaping from confinement for a one-year term would then be sentenced to an

additional term of one year, and a person escaping from confinement for a twenty-year term

would then be sentenced to a further twenty-year term. The court there suggests, in what is

frankly dictum, that the statute, to escape its infirmity, “could be made to apply to all persons

who escape or attempt to escape from the state prison.” (Emphasis supplied.) That is precisely

what the present statute does.

In People v. Finley, 153 Cal. 59, 94 P. 248, the defendant was found guilty of murder and

the death penalty was imposed under a statute providing that every person undergoing a life

sentence, who, with malice aforethought, commits an assault upon the person of another with

a deadly weapon is punishable with death. The California court was interested in the genesis

and origin of this then comparatively new statute and recognized, as a part of judicial as well

as legislative knowledge, that convicts undergoing life sentences constitute a most desperate

and dangerous class, reckless, without hope, and without bonds of restraint; that their acts of

violence against fellow inmates, custodians, officers and guards and their savage attempts to

escape formed a ��3��


part of the history of California. The court concluded that the classification was not arbitrary,

but based upon valid reasons and distinctions; that the equal protection clause was not

violated, as all persons in like cases would be subjected to like punishment. The decision was

affirmed in Finley v. California, 222 U.S. 28, 56 L.Ed. 75, 32 S.Ct. 13, in which the

classification of prisoners serving a life sentence was examined in its exclusion of convicts

serving lesser terms. Under the test “whether there is a basis for the classification made by the

statute” the United States Supreme Court held that the legislature had not transcended its

power. See also the companion case of People v. Carson, 155 Cal. 164, 99 P. 970, involving

the same attempted escape.

The concern of even the territorial legislature with attempted escapes was evident from

“An Act Concerning Crimes and Punishments,” approved November 26, 1861, Laws of the

Territory of Nevada, first regular session, 1861, page 56. Special sections fixed severe

penalties for releasing or rescuing prisoners after conviction, prisoners before conviction,

conniving at such escapes on the part of sheriffs, jailors, etc., aiding escapes, supplying tools

or weapons to imprisoned convicts, facilitating the escape of any person lawfully in custody,

the permitting by a sheriff or constable of the escape of any prisoner in his custody, etc. In

1862 the territorial legislature made punishable by fine not exceeding $5,000 or

imprisonment not exceeding one year, or both, visiting or communicating with any prisoner

convicted of or charged with any felony imprisoned in the county jail other than the officer

having the prisoner in charge, the prisoner's attorney or the district attorney, except with the

written permission of the district attorney, and the consent of the sheriff, warden or other

proper officer. Sections 4746-4747, Baily and Hammond, Stats. 1885, p. 1055. The 1866

legislature passed an act comprising six sections, ��


of which sec. 5 (sec. 4752 Baily and Hammond, General Stats. 1885, p. 1056) is identical in

wording with sec. 10499, N.C.L. 1929.

We are left in no doubt as to the concern of the territorial legislature and of the early

sessions of the state legislature with the necessity for classification of persons lawfully in

custody as subject to severe penalties for escape or attempted escape. In this regard we are

impressed with the pertinent observation in State v. Woodward, 68 W. Va. 66, 69 S.E. 385,

30 L.R.A. (N.S.) 1004, that in the exercise of the power to define crimes and fix their

punishment “there must be a comprehension of all that the legislature did or could take into

account; that is, a consideration of the mischief and the remedy.” We conclude that the

assignment of invalidity of the statute as a violation of the equal protection clause, by reason

of an asserted arbitrary classification, is without merit.

[Headnote 2]

(2) It is next asserted that there was a lack of due process because the information is so

ambiguous as to render it impossible for petitioners to ascertain the crime with which they are

charged. Prolixity, duplicity and ambiguity are charged and cases cited in which the existence

of such faults has been held to be fatal. None of the cases cited is in point to support the

contention that the information “clearly reveals the charge of four distinct offenses, to wit:

conspiracy to escape, escape from prison, kidnapping and first degree murder.” Petitioners

might also have asserted that they were also charged with felonious assault upon the abducted

guard, as well as other possible crimes incidental to the escape. The crime charged is murder.

The facts are simply stated in order to bring it within the purview of the statute. The

information simply recites the manner in which the offense was committed. The infirmities

suggested are without merit. See 42 C.J.S. 1115, Indictments and Information, sec. 164; Id.

1127, sec. 170; Wilson v. State, 188 ��


Ark. 846, 68 S.W.2d 100; Mohler v. State, 120 Md. 325, 87 A. 671.

[Headnote 3]

(3) It is next contended that the statute is inoperative and void for uncertainty and that

petitioners will be deprived thereby of their lives or liberty without due process in violation of

section 1 of the fourteenth amendment to the federal constitution. This develops from the

contention that the legislative intent in the use of the words “cause” and “causing” is not

clear, and under authorities cited, that the asserted vagueness, ambiguity, failure to define the

offense, indefiniteness and lack of determinative meaning, cannot be judicially supplied.

Petitioners illustrate this contention by describing a number of hypothetical cases in which,

under the statute, an escaping prisoner might be charged with “causing” the death of a human

being. The most extreme of these hypothetical cases is put thus: “Prisoner escapes from

prison, is a mile from the prison gates when a guard discovers his disappearance, rushes out

the door, slips on the steps, falls, fractures his skull and as a result dies.” A more extreme

case might have been suggested in which the prisoner, a week later, still engaged in making

his escape, is twenty miles from the prison gates, when a guard discovers the facts, rushes out

the door and is killed from a fall on the steps. Examples could be carried to the most fantastic

lengths. The cases are almost without number in which the courts have found it necessary to

define “cause” with reference to criminal as well as tort actions. As an example, reference

may be made to the repeated use of the word “cause” in the citations of the texts and

authorities contained in the opinion in Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595,

12 A.L.R.2d 183. Protection against applying the statute to the fantastic lengths feared by

petitioners may be fully afforded by appropriate instructions to the jury. We find this

assignment likewise to be without merit.


[Headnote 4]

(4) Finally petitioners contend that the statute provides a cruel and unusual punishment

disproportionate to the offense. Here again petitioners seem concerned lest a mandatory death

penalty might under the act be imposed upon a person but remotely connected with the means

of death. However under the act the penalty attaches to action which is the cause of death. As

such the penalty cannot be regarded as disproportionate to the crime. State v. Jon, 46 Nev.

418, 211 P. 676, 217 P. 587, 30 A.L.R. 1443. 1 Whether conduct in any particular case may

properly be held to constitute cause is not a subject for our consideration at this time. The

theory of petitioners under this assignment is illustrated by their citation of cases having to do

with what are known as felony killings, particularly Commonwealth v. Moore, 121 Ky. 97, 88

S.W. 1085, 2 L.R.A., N.S., 719; Commonwealth v. Campbell, 7 Allen 541, 89 Mass. 541, 83

Am. Dec. 705; and People v. Udwin, 254 N.Y. 255, 172 N.E. 489, and respondents meet the

contention by citation of Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d

183. These cases however all deal with the question of whether the death of the person killed

could be said to be caused by the respective defendants under the particular circumstances of

the case. They do not deal with the question as to whether the death penalty was

disproportionate to the offense if the defendant caused the death in the perpetration of a

felony. We therefore refrain from a discussion of these cases. Petitioners say however that the

death penalty, in cases where an escaping prisoner “shall cause the death of any human being

in making or attempting to make such escape” is so excessive as to ��

____________________

1

As to the subject of cruel and unusual punishments in general, see State v. Moilen, 140 Minn. 112, 167

N.W. 345, 1 A.L.R. 331, and authorities therein cited; also State v. Woodward, 68 W. Va. 66, 69 S.E. 385, 30

L.R.A.(N.S.) 1004; Louisiana ex rel. Francis v. Resweber, 329 U.S. 459. 67 S.Ct. 374, 91 L.Ed. 422. As to the

“well nigh unlimited” power of the legislature to define crimes and fix their punishment, see State v. Woodward,

supra.


shock the conscience. It is no more shocking than the death penalty for a felony killing. This

assignment we likewise find to be without merit.

As petitioners' claims that the respondent court and judge are without jurisdiction to try the

criminal charge against them are without support in law, their petition for a writ of

prohibition must be denied, the alternative writ vacated and the proceeding dismissed. It is so

ordered.


____________

��71 Nev. 177, 177 (1955) Springer v. Federated Church��

LOUISE SPRINGER, Appellant, v. FEDERATED CHURCH OF RENO, Inc., a Nevada

Corporation, Respondent.

No. 3829

May 20, 1955. 283 P.2d 1071.


Department No. 3.

Action by member of church against church for injuries sustained in fall on church steps.

From an adverse judgment of the Second Judicial District Court, Washoe County, Harold O.

Taber, Judge, Department No. 3, the plaintiff appealed. The Supreme Court, Eather, J., held

although member of church was delivering card file regarding church membership when she

fell while descending church steps, she was a beneficiary and could not recover damages.

Affirmed.

(Rehearing denied June 13, 1955.)

Margaret Faires Baily, Charlotte Hunter, and Lohse & Fry, all of Reno, for Appellant.

Woodbury, Forman & Woodburn and Gordon R. Thompson, of Reno, for Respondent.


1. Charities. One voluntarily accepting benefits of a charitable organization may not sue such organization in tort for

injuries sustained in connection with the gift charitably bestowed.

2. Religious Societies. Although member of a church was delivering a card file regarding church membership when she fell

while descending church steps, she was a beneficiary of the church and could not recover damages from it

in personal injury action based on negligence.

3. Charities. Exemption from tort liability may voluntarily be waived by charitable organizations for the benefit of

their members.

4. Courts. Where charitable organizations, in reliance upon previous decision adopting beneficiary theory limiting

tort liability, had refrained from voluntarily accepting liability and overruling the previous decision would

impose liability upon them retroactively under circumstances against which they were helpless to protect

themselves, the rule must be adhered to under doctrine of stare decisis.

OPINION


Louise Springer brought suit against Federated Church of Reno, Inc., a Nevada

corporation, to recover damages for personal injuries, which were claimed to have been

caused by the negligence and carelessness of the defendant.

For clarity, the appellant will be referred to as plaintiff, and the respondent as defendant.

The facts material to this opinion disclose that plaintiff commenced this damage action based

upon defendant's alleged negligence in the construction and maintenance of church steps

upon which plaintiff fell, sustaining injury. Defendant answered denying all material

averments regarding its alleged liability, and affirmatively asserted plaintiff's contributory

negligence as a further defense. Thereafter plaintiff's deposition was taken disclosing that she

had been a member of defendant church for many years prior to her fall and injury, and was,

at the time of her fall and injury a member thereof. Plaintiff ��


readily admitted in her deposition that she had received spiritual benefit by reason of her

church membership and activity. Based upon the pleadings and deposition, defendant moved

for summary judgment contending that no genuine issue as to a material fact remained. In

opposition to such motion, plaintiff filed an affidavit asserting that at the time of her fall her

sole purpose in descending the church steps was to deliver a card file regarding church

membership for use by a church committee of which she was a member. The lower court

granted defendant's motion, and entered summary judgment, from which plaintiff has

appealed to this court. The reason for the lower court's ruling does not appear from the record

on appeal. It is noted, however, that the points and authorities in support of and in opposition

to the summary judgment, and, as well, the briefs and argument on appeal, dealt primarily

with the principle of immunity of a religious organization from tort action, as announced by

this court in Bruce v. Young Men's Christian Ass'n., 51 Nev. 372, 277 P. 798.

Plaintiff's complaint of error is essentially twofold. Initially, she contends that the principle

of law enunciated in the Bruce case does not apply to this case for the reason that her status as

a “beneficiary” of the church (as that term is used in the Bruce decision, supra) is a question

of fact under the evidence here presented. In the alternative, she asserts that, in any event, the

Bruce case is bad law and should be overruled. We do not believe there is merit in either

contention.

[Headnotes 1, 2]

The Bruce case, supra, clearly establishes the law of Nevada. One voluntarily accepting the

benefits of a charitable organization may not sue such organization in tort for injuries

sustained in connection with the gift charitably bestowed. In the case before us plaintiff was a

member of the church and as such was making use of the church facilities at the time of her

injury. Admittedly she received spiritual benefit and assistance from the church. To assert, as

she does, that at the very time ��:��;��


of her injury she was benefitting the church (rather than being benefitted by the church) is

unrealistic. It is by participation in church activity that one realizes to a great degree the

benefits offered. Burgie v. Muench, 65 Ohio App. 176, 29 N.E.2d 439. There was then, no

factual issue as to the plaintiff's status as beneficiary which a jury might be asked to resolve.

[Headnote 3]

Nor, do we believe that the Bruce case should be overruled. Plaintiff unquestionably has

made out a strong and persuasive case for the abandonment of the beneficiary theory there

announced. It may well be true that the public conscience of today demands a more extensive

acceptance of tort liability than was the case in 1929 when the Bruce case was decided; that

the general custom and practice of today is to accept such liability and insure against it. It is

undoubtedly true that the exemption from liability established by the Bruce case may

voluntarily be waived by charitable organizations for the benefit of their members; and

undoubtedly many such organizations have voluntarily so accepted liability. It may well be

contended that such practice is the more enlightened and more desirable practice under

conditions as they now exist.

[Headnote 4]

The fact remains, however, that in reliance upon the beneficiary theory adopted by this

court in the Bruce case, there are charitable organizations which have refrained from

voluntarily accepting liability in such cases as this. To overrule the Bruce case would be to

impose such liability upon them retroactively under circumstances against which they are

helpless to protect themselves. Under such circumstances we must adhere to the doctrine of

stare decisis. Jensen v. Labor Council, 68 Nev. 269, 229 P.2d 908; Cf. Bisso v. Inland

Waterways Corp., 75 S.Ct. 629. If an abandonment of the rule of the Bruce case is to be

deemed desirable, the abandonment should be prospective rather than retroactive and ��


the determination should be legislative rather than judicial.

Other points were briefed and argued (such as defendant's contention that plaintiff's

deposition disclosed her contributory negligence as a matter of law), which points we have

considered but will not discuss, believing the Bruce decision, supra, determinative of this

matter.

Accordingly, the judgment of the lower court is affirmed, and respondent is awarded costs

on this appeal.


____________

��71 Nev. 181, 181 (1955) Goldring v. Kline (Cross Appeals)��

LESTER GOLDRING and ELSIE GOLDRING,

Appellants, v. PAULINE KLINE, Respondent.

No. 3831

PAULINE KLINE, Appellant, v. LESTER GOLDRING and ELSIE

GOLDRING, Respondents.

No. 3877

May 27, 1955. 284 P.2d 374.

Cross appeals from judgment of the Eighth Judicial District Court, Clark County; Ryland

G. Taylor, Judge, Department No. 3.

Lessees brought action against lessor for a declaration of rights under terms of lease and to

compel repair of leased premises by lessor, and lessor counterclaimed for rental allegedly

due. From a judgment in favor of lessor on the lessees' complaint and in favor of the lessees

on the lessor's counterclaim, the lessor and lessees appealed. The Supreme Court, Merrill, C.

J., held that where owner's obligation of maintenance as to existing buildings in city under

city's codes and ordinances was not an obligation to act on the owner's own initiative to

prevent premises from becoming unsafe, but was rather an obligation to comply with such

specific demands as city, in interests of public safety might make, and city ��


ordered demolition of building, owner was under no duty under provision in lease containing

covenant of quiet enjoyment to repair the premises for lessees.

See also 70 Nev. 510, 275 P.2d 381.

In both cases: Judgment affirmed.

George E. Marshall, of Las Vegas, for Pauline Kline.

Ralli, Rudiak & Horsey, of Las Vegas; Leslie B. Gray, of Reno; and Morris Pepper of

Houston, Texas, for Lester Goldring and Elsie Goldring.

1. Declaratory Judgment. In action by lessees against lessor to secure a declaration of rights under terms of lease and to compel

repair of leased premises by lessor, wherein city was not a party, city's safety order requiring demolition of

building on leased premises could not be challenged by lessees.

2. Landlord And Tenant. Alleged fact that lessor invited city's order for demolition of leased building, which had been condemned,

would not entitle lessees to a judgment requiring lessor to repair the building.

3. Landlord And Tenant. Where owner's obligation of maintenance as to existing buildings in city under city's codes and

ordinances was not an obligation to act on the owner's own initiative to prevent premises from becoming

unsafe, but was rather an obligation to comply with such specific damages as city, in interests of public

safety might make, and city ordered demolition of building, owner was under no duty under provision in

lease containing covenant of quiet enjoyment to repair the premises for lessees.

4. Appeal And Error. The Supreme Court on appeal could not be asked to make a declaration as to questions presented for the

first time on appeal. Rules of Civil Procedure, rule 75(d).

5. Landlord And Tenant. Where lessees took possession of leased premises in January and were actually evicted in connection with

city's demolition order in August, but, due to condition of leased premises, it was never possible for lessees

to realize the purpose of the lease, and, because of conduct of lessor, lessees did not know that purpose of

lease would not be realized until they were actually evicted, and lessees acted in reliance on representation

of lessor that premises would be repaired, and lessor neglected to advise lessees of lessor's decision to

submit to demolition, ��)��)��


lessor was estopped to assert that failure of lessees to surrender lease entitled lessor to rent from January

through July.

6. Declaratory Judgment. In action by lessees against lessor to secure a declaration of rights under terms of lease and to compel

repair of leased premises by lessor, wherein lessor counterclaimed for rent allegedly due, trial court did not

err in holding that lessees were entitled to recover sums paid as rental, when building was ordered

demolished by city, though lessees did not expressly pray for return of sums paid as rental. Rules of Civil

Procedure, rule 54(c).

OPINION


These are cross appeals from judgment. The action was brought by lessees to secure a

declaration of rights under the terms of a lease and to compel repair of the leased premises by

the lessor. The lessor counterclaimed for rental alleged as due. Following trial, judgment of

the court, sitting without a jury, was in favor of the lessor upon the complaint of the lessees,

and in favor of the lessees upon the counterclaim of the lessor. Appeals have been taken from

the judgment in both respects.

Case No. 3831

This is the appeal taken by the lessees from judgment denying the relief sought by their

complaint: a declaration of the lessor's obligation to repair the leased premises. The question

involved is whether, notwithstanding a demolition order by the city of Las Vegas, since the

building involved can be made safe by repair, it is the lessor's duty to repair and continue the

lease in effect.

The premises involved consist of a store building located in the city of Las Vegas. The

lease is for a term of six years from January 1, 1953. Under the terms of the lease the lessees

were to do certain remodeling of the premises, adapting them to use as a restaurant. In

checking this proposed work with the city, they were ��


advised that the premises were in no condition to permit such remodeling until certain

structural defects were remedied. Representatives of both the lessor and the lessees thereafter

were in touch with the city authorities with respect to the condition of the premises. Several

independent inspections were made. Eventually the city building inspector wrote the attorneys

for the lessor with respect both to the premises with which we are here concerned and with

respect to adjoining property also owned by the lessor. The letter stated that the building “was

in bad shape and in bad state of repair.” It further stated “It would be impractical to attempt to

remodel or repair these buildings so they would comply with the codes and ordinances of the

city of Las Vegas. This department in cooperation with the Bureau of Fire Prevention hereby

declares these buildings unsafe. They constitute a fire hazard and a hazard to public health

and welfare. They are hereby condemned. Demolition or removal of the structures must begin

within 30 days * * * from receipt of this notice.” The lessor was preparing to comply with

this notice when the present suit was commenced and demolition was temporarily enjoined.

Under the terms of the lease no obligation to repair is imposed upon the lessor save that

which may result from the usual covenant of quiet enjoyment. In the trial below, lessees

presented evidence to the effect that the premises can be restored or “repaired” by replacing

the side and rear walls and roof. They contend that since demolition is not essential the lessor

under her covenant of quiet enjoyment is obligated to repair.

Under these circumstances it was the holding of this court in Ripps v. Kline, 70 Nev. 510,

275 P.2d 381, that the covenant of quiet enjoyment placed no obligation of repair upon the

lessor. That case is closely connected with the one at bar. It concerns the same lessor and

adjoining premises. The lessees contend that the case at bar is distinguishable from the Ripps

case.

We there stated [70 Nev. 510, 514, 275 P.2d 381, 382, $4$H<�2K�� -


383]: “Unless the demolition order results from some breach of duty owed by the lessor, the

lessees may not hold her responsible for it and the demolition so ordered may not be

attributed to her as her act in violation of her covenant of quiet enjoyment.” We further stated,

“The authorities cited by lessees involve cases in which the demolition resulted from a breach

of duty owed by the lessor; where improper actions or omissions of duty of the lessor had

necessitated the demolition. They include cases where the lessor had neglected a duty of

repair imposed by the lease or where the demolition had been necessitated by the affirmative

acts of the lessor or where the lessor had refused compliance with a public safety order or

otherwise had failed to meet an obligation imposed by law.” Two points of distinction are

urged by the lessees.

First, it is contended that while in the Ripps case the pleadings did not disclose the fact

(judgment there being rendered upon the pleadings), in the case at bar the record

demonstrates that an obligation of repair is imposed by law upon the lessor. In 1953 the

uniform building code was enacted as an ordinance of the city of Las Vegas. Section 104(i) of

that code provides as follows: “All buildings or structures both existing and new, and all parts

thereof, shall be maintained in a safe and sanitary condition * * *. The owner or his

designated agent shall be responsible for the maintenance of buildings and structures.”

Lessees contend that demolition thus was necessitated by the lessor's failure to maintain the

premises in a safe condition; that the demolition may therefore be attributed to her as her act

in violation of her covenant of quiet enjoyment.

We turn, then, to a consideration of the nature and extent of the duty imposed upon the

lessor by section 104(i) of the building code: her duty to maintain her property in a safe

condition. Imposed as that duty is by the code, we must look to the code itself for definition

of terms. Such significant words as “safe” and “maintain” are not expressly defined. The

intent which governs �� *��


their meaning must, then, be determined by examining other code provisions.

The express purpose of the code is to promote public safety and welfare through regulation

relating primarily to new construction: “regulating and controlling the design, construction,

quality of materials, use and occupancy, location and maintenance” of buildings and

structures. Sec. 102. As to existing buildings, their use or occupancy may continue if not

“dangerous to life.” Sec. 104(g).

As to existing buildings continuing in legal use and occupancy, the code appears to

provide the city with no machinery or authority to require an owner to act to prevent premises

from becoming unsafe. As to unsafe buildings the procedure provided under sec. 203 is

inspection, determination, and action to remedy by abatement. That section reads as follows:

(a) “All buildings or structures which are structurally unsafe or not provided with adequate

egress, or which constitute a fire hazard, or are otherwise dangerous to human life, or which

in relation to existing use constitute a hazard to safety or health, or public welfare, by reason

of inadequate maintenance, dilapidation, obsolescence, or abandonment, as specified in this

Code or any other effective ordinance, are, for the purpose of this Section, unsafe buildings.

All such unsafe buildings are hereby declared to be public nuisances and shall be abated by

repair, rehabilitation, demolition, or removal in accordance with the procedure of this

Section.”

(b) “The Building Official shall examine or cause to be examined every building or

structure or portion thereof reported as dangerous or damaged and, if such is found to be an

unsafe building as defined in this Section, the Building Official shall give to the owner of

such building or structure written notice stating the defects thereof. This notice may require

the owner or person in charge of the building or premises, within 48 hours, to commence

either the required repairs or ��

�� +�+�+�-


improvements or demolition and removal of the building or structure or portions thereof,

* * *.”

Such general terms used in sec. 203(a) as “structurally unsafe,” “dangerous to human life,”

and “hazard to safety, health, or public welfare” are themselves not expressly defined.

Obviously the determination that such general conditions exist in a specific instance demands

an exercise of judgment on the part of the building official. It would appear, therefore, that

the word “safe” as used in sec. 104(i) with reference to existing buildings is to be interpreted

as “safe within the determination of the building official”; that the word “maintain” is to be

interpreted as “maintain in such manner as the building official shall direct.”

In the light of such interpretation the owner's obligation of “maintenance” as to existing

buildings is not an obligation to act upon his own initiative to prevent the premises from

becoming unsafe. Rather it is one to comply with such specific demands as the city, in the

interests of public safety, may make. Until such demand is made, the owner's duty under the

section remains latent and wholly undefined. When demand is made, the duty then becomes

specific and enforceable by the city. (It may be noted at this point that the obligation with

which we are here concerned is distinct from an owner's common law liability for tort

resulting from the condition of his premises.) Our construction is, we feel, fortified by the

provisions of the code relative to penalties. Section 205 makes it a misdemeanor to maintain a

building contrary to code provisions. If sec. 104(i) is to be construed as requiring the owner to

act upon his own initiative to prevent his building from becoming unsafe, it would appear that

without notice or direction of any kind from the city and with no contractual obligation of

repair, an owner might become criminally liable by innocently permitting a building to reach

a state of disrepair which, by some subsequent official determination, constitutes it unsafe.

Section 203(d) indicates that such ��


is not the intent of the code. Criminal liability is to attach upon failure to comply with the

city's demands. That subsection reads in part as follows: “In case the owner shall fail, neglect,

or refuse to comply with the notice to repair, rehabilitate, or to demolish and remove said

building or structure or portion thereof, the City Council may order the owner of the building

prosecuted as a violator of the provisions of this Code * * *.”

The safety order, then, may not be regarded as the consequence of a breach of duty owed

to the city, but rather as fixing the extent of the duty so owed. Under sec. 203 that duty may be

fixed as demolition. Such was clearly the case here as in the Ripps case. The nature of the

duty owed by the owner under sec. 104(i) was by the safety order determined to be

demolition.

Lessees rely heavily upon Lindwall against May, 111 App.Div. 457, 97 N.Y.S. 821, cited

by this court in the Ripps case. In that case the lessor was held liable to the lessee for an

eviction in violation of a covenant of quiet enjoyment. The eviction (as here) resulted from

demolition ordered by the city. The demolition (as lessees contend was the case here) was

attributed to the lessor's violation of a duty imposed by ordinance. In that case, however, the

duty so imposed was fixed and definite. It did not require any official determination of

existence or degree. Under certain clearly specified circumstances the owner's clearly

specified duty attached. The code there provided that where an excavation is made not to

exceed ten feet in depth, the owner of an adjoining wall should preserve the same by proper

support and foundation. Such a case, in our view, is clearly distinguishable.

Lessees contend that under sec. 203 the safety order in this case must be construed as an

alternative order to repair or demolish (with the consequences noted in the Ripps opinion);

that the language of the ordinance must control over the language of the notice. As in the

Ripps case we construe this language (that the owner may be required within 48 hours to

commence “either the required repairs or improvements or demolition and ��-;��


removal of the building”) as providing that the owner may be required, within the time

specified, to do what has been determined to be necessary, whether that action be for repair,

improvement, or demolition and removal.

Lessees seem to complain that this places too much discretionary power in a municipal

official to determine important questions of property rights. Lessees' difficulty is in confusing

lessor's duty to the city with her duty to the lessees. Section 104(i) is concerned only with the

former. Under its provisions the city is only concerned with the necessities of public safety;

with determining what is the least that it can in the interests of public safety reasonably

require of the owner. Should such requirements be less than demolition, should the owner

disregard them and, as in the Lindwall case, should demolition become necessary as a result,

the lessor's covenant of quiet enjoyment might be said to have been violated. Demolition

could be attributed to the owner as his voluntary act.

[Headnote 1]

Lessees contend that, considering the repairability of the building, the city should not have

ordered demolition. If the city's safety order was for any reason improper, it can hardly be

challenged in an action to which the city is not a party. In this matter we must accept the

demolition order as it appears upon its face: a considered and proper determination that in the

interests of public safety and in the light of the condition of the premises, the least the city

could demand of the owner was demolition.

Lessees' second point of distinction from the Ripps case is that the record before us

demonstrates that the lessor invited the demolition order; she conferred with the municipal

authorities regarding it; she made a special trip to Las Vegas in order that it might be served

upon her. Lessees contend that the demolition was thus occasioned by affirmative acts of the

lessor and may be attributed to her as her voluntary act.


[Headnote 2]

The lessor may well have cooperated with the municipal authorities. She may even have

sought to persuade them that under the circumstances demolition was the reasonable solution.

There is nothing in the record, however, to indicate that she imposed her will upon them

improperly or that they improperly deferred to her judgment. The order, then, remains the

official action of the city. Nitro Powder Company v. Agency of Canadian Car & Foundry

Company, 233 N.Y. 294, 135 N.E. 507.

This, of course, is not to say that rights other than those of the owner may be disregarded

by municipal authorities; that their safety orders may ignore reason and practical necessity so

long as the owner consents; or that their orders may be based not upon their judgment as to

what is necessary to public safety but upon private agreement with interested parties; all in

disregard of the rights of others. As we have already noted, however, if the city's action for

any reason was improper it may not be challenged in this case.

[Headnote 3]

We conclude that the case at bar is not distinguishable from the case of Ripps v. Kline,

supra; that, as there held, the lessor's covenant of quiet enjoyment placed upon her no

obligation to restore or repair the premises.

Two other questions are presented by lessees upon which we are asked to declare the

rights of the parties:

1. Accepting that the lessor is not obligated to repair, have not the lessees a right to repair

at their own expense and thus avoid the consequences of demolition?

2. Accepting that the lessor is not obligated to repair, have not the lessees a right to retain

their leasehold interest, submit to demolition and thereafter make such use of the land as their

rights might then permit?

Respondent lessor challenges the propriety of our undertaking to declare the rights of the

parties upon these questions. In our view her position is well taken.


These questions are being presented for the first time on this appeal.

The record makes it clear that never, prior to suit, had the lessees asserted the rights they now

assert in this connection. In their negotiations with the lessor their contention consistently was

that the lessor was obligated to restore the premises or, in the alternative, permit the lessees to

do so at the expense of the lessor. Upon the questions thus far discussed this was the sole

controversy presented to the trial court. Although the complaint may perhaps be construed to

allege a controversy as to Question No. 1, the record does not support such a construction.

The contention of the lessees relative to their right to repair was consistently linked with the

asserted obligation of the lessor to bear the expense of such repair. Indeed, this was the very

manner in which the point was expressed by the lessees in their statement of points on appeal

filed with the court below pursuant to Rule 75(d) N.R.C.P.

[Headnote 4]

It would appear that these new questions arose in the minds of the lessees only when,

while the present appeal was pending, the decision in Ripps v. Kline was announced. The

lessees are in the position of stating, “The Ripps decision has presented two additional

questions as to which we now wish a declaration of rights.” Such declaration cannot be asked,

in the first instance, of an appellate court. Lickert v. Omaha, 144 Neb. 75, 12 N.W.2d 644;

Thomson v. Public Service Com., 236 Wis. 157, 294 N.W. 517; Accord: Bliss Co. v. Cold

Metal Process Co., C.C.A. Ohio, 102 F.2d 105; Walz v. Northcutt, 278 Ky. 616, 129 S.W.2d

124; Bank of Yorktown v. Boland, 172 Misc. 885, 16 N.Y.S.2d 756; Ferguson v. Housh,

(Tex. Civ. App.), 227 S.W.2d 590; See: Borchard on Declaratory Judgments, 2d ed., page

253; Anderson on Declaratory Judgments, sec. 370, 487, 489.



Case No. 3877

This is an appeal by the lessor from judgment denying her counterclaim for rent and

requiring her to return to the lessees such rent as had been paid.

The lessees took possession of the premises in January, 1953. They were promptly advised

that structural defects would have to be remedied before the remodeling contemplated by the

lease could be had. In August they were actually evicted in connection with the city's

demolition order. The lessor claims rent from January through July: from the date the lessees

took possession until they were actually evicted. Upon this claim the trial court ruled that

there had been a complete failure of consideration.

The lessor concedes that, due to the condition of the leased premises, it never was possible

for the lessees to realize the purposes of their lease. She contends, however, that in order for

the lessees to avoid liability for rent under these circumstances they must have surrendered

possession of the leased premises. This would appear to be the general rule.

In the case at bar, however, due to the conduct of the lessor it was not until they were

actually evicted that the lessees knew that the purposes of the lease would not be realized.

The lessor undertook a structural survey of the premises. She encouraged the lessees to

undertake a similar survey. Various plans were proposed for the restoration and strengthening

of the premises, all for the avowed purpose of making the premises available to the lessees.

Clearly they were led to believe by the lessor that, (regardless of the extent or lack of her

obligation to do so), she was definitely contemplating reconstruction to remedy the structural

defects. Clearly they acted in reliance upon this representation. When, because of the cost

involved, the lessor eventually abandoned the project and resolved to submit to demolition,

she neglected to advise the lessees of her decision.


[Headnote 5]

The lessor is, then, estopped to assert the lessees, failure to surrender the lease.

[Headnote 6]

The lessor contends that since the lessees did not expressly pray for a return of the sums

paid as rental, the trial court erred in granting this relief. Rule 54(c) N.R.C.P. provides in part

as follows: “Except as to a party against whom a judgment is entered by default, every final

judgment shall grant the relief to which the party in whose favor it is rendered is entitled,

even if the party has not demanded such relief in his pleadings.”



____________

��71 Nev. 193, 193 (1955) Ex Parte Stricker��

In the Matter of the Application of ARTHUR STRICKER, Alias BUDDY KING, for a

Writ of Habeas Corpus.

ARTHUR STRICKER, Alias BUDDY KING, Appellant, v. GLEN JONES, Sheriff of

Clark County, Nevada, Respondent.

No. 3855

May 27, 1955. 284 P.2d 383.

Habeas Corpus proceeding. From an order of the Eighth Judicial District Court, Clark

County; A. S. Henderson, Judge, Department No. 2, the petitioner appeals. The Supreme

Court, Eather, J., held that petitioner was not entitled to discharge where he was held by

virtue of a requisition from Texas for the crime of removing mortgaged property therein

without consent of the mortgagee, on the ground that he was not in Texas on the precise date

alleged in the indictment.

Affirmed.


Harry E. Claiborne, Las Vegas, for Appellant.

George M. Dickerson, District Attorney and Gordon L. Hawkins, Deputy District

Attorney, Las Vegas, for Respondent.

1. Indictment And Information. A variance between the proof of the date on which a crime was committed and the date stated in the

indictment is not a material variance.

2. Extradition. When a person is formally charged with a crime and his extradition is requested, request must be honored

unless accused proves that he was not in the demanding state at any time when it was possible for him to

have committed the crime charged.

3. Habeas Corpus. Petitioner was not entitled to discharge under habeas corpus under an extradition requisition from Texas

for the crime of removing mortgaged property in that state without the consent of the mortgagee, on the

ground that he was not in Texas on the precise date alleged in the indictment charging the crime, since the

date is not a material part of the crime of removing mortgaged property.

OPINION


This is an appeal from an order of the Eighth judicial district court of the State of Nevada,

in and for the county of Clark, after hearing, denying petitioner discharge under a writ of

habeas corpus.

On the 10th day of December, 1954, the appellant was arrested by the sheriff of Clark

County, Nevada, by virtue of an executive warrant issued by the governor of the State of

Nevada, granted on a requisition from the governor of Texas, for the crime of removing

mortgaged property from Tarrant County, Texas, without the consent of the mortgagee, which

charge was duly recited in an indictment and the request for extradition from the governor of

Texas, which set forth that the ��@��F�*��


appellant was a fugitive from justice from the State of Texas.

The indictment alleges that on the 26th day of December, 1952, in the county of Tarrant,

State of Texas, the appellant unlawfully removed a certain automobile of the value of $1,261,

and that the appellant had theretofore on the 16th day of October, 1952, executed a valid

mortgage lien on such automobile.

It is also stated in the “Application for Requisition” that appellant, since the commission

of the offense, and before an arrest could be made, fled from justice of the State of Texas, and

is now in the State of Nevada.

On the hearing on habeas corpus in the lower court, all these facts appear to have been

established, save the date on which the crime was committed. On December 26, 1952, the

acts described in the indictment had already been committed and appellant was not then in the

State of Texas. He contends that since he was not in the State of Texas on the date the crime

is alleged to have been committed, he cannot be said to be a fugitive from justice.

[Headnote 1]

According to the facts established on hearing on habeas corpus in the lower court, it is

clear that appellant is a fugitive from justice upon some crime; and the only question for this

court to consider, therefore, is whether the crime of which he is a fugitive has sufficiently

been charged in the indictment; in other words, whether the precise date is a material part of

the charge. Neither side has contended that the date is a material part of the crime of

removing mortgaged property by virtue of the nature of the crime. It is well established that

the general law under these circumstances is that a variance between the proof of the date on

which the crime was committed and the date stated in the indictment is not a material

variance and therefore it may be said that the crime of which appellant is in fact guilty has

sufficiently been charged against ��


him in the indictment. See Grayson v. State, 92 Ark., 413, 123 S.W. 388, 389, where it is

stated: “‘The allegation as to the day on which the offense was committed is immaterial, and

did not affect the sufficiency of the indictment. * * * According to these provisions of the

statute, an allegation in the indictment as to the day upon which the offense charged was

committed cannot affect it, if it can be understood therefrom by a person of common

understanding that the grand jury intended to charge that the offense was committed “at some

time prior to the time of finding the indictment.”'”

That this is the law in Texas is clearly established in the case of Benson v. State, 128

Texas Criminal Reports, page 72; 79 S.W.2d 122, 123, where the court said: “Without

exception, as far as we know, the rule has been laid down and adhered to that the exact date

laid in an indictment need not be proved, and all the cases on the point hold unanimously that

such averment is sufficiently met by proof of the commission of the offense as of any date

anterior to the return of the indictment and within the period of limitation theretofore.” Citing

cases.

[Headnote 2]

Applying these principles to extradition it was stated in the case of Ex Parte Crowley,

D.C.Mass., 268 F. 1016, 1017: “When a person is formally charged with crime, and his

extradition is requested, the request must be honored, unless the accused proves that he was

not in the demanding state at any time when it was possible for him to have committed the

crime charged. As the prosecution is not bound to establish on the trial of a criminal case that

the crime charged was committed on the exact date specified, it follows that in extradition

proceedings it is sufficient if the accused is shown to have been in the demanding state ‘in the

neighborhood of the time alleged.'” Cf. State v. Cerfoglio, 46 Nev. 332, 338; 205 P. 791, 213

P. 102, 27 A.L.R. 848.

[Headnote 3]

For the reasons given, it is ordered that the order, ��


after hearing, denying petitioner discharged under a writ of habeas corpus, is hereby affirmed.


____________

��71 Nev. 197, 197 (1955) Richards v. City of Las Vegas��

WALTER J. RICHARDS, Appellant, v. THE CITY OF LAS VEGAS, a Municipal

Corporation, and C. D. BAKER, REED WHIPPLE, REX A. JARRETT, WENDELL

BUNKER, HARRIS P. SHARP, AND SHIRLEY L. BALLINGER, Constituting the Mayor,

Board of Councilmen, and City Clerk of the City of Las Vegas, Nevada, Respondents.

No. 3881

June 1, 1955. 284 P.2d 373.

Suit to enjoin election for office of municipal judge. The Eighth Judicial District Court,

Clark County, A. S. Henderson, Judge, Department No. 2, dismissed complaint, and plaintiff

appealed. Defendants moved to dismiss appeal. The Supreme Court held that where election

had been held pending appeal, and plaintiff's opponent had obtained majority of votes and

assumed office, question was moot.

Appeal dismissed.

Harry E. Claiborne, David Zenoff, and John A. Porter, all of Las Vegas, and Richard

Waters, Jr., of Carson City, for Appellant.

Howard W. Cannon, City Attorney, and Ralston O. Hawkins, Assistant City Attorney, of

Las Vegas, for Respondents.

1. Appeal And Error. Where incumbent judge was neither a party to appeal nor named as defendant in lower court action,

wherein plaintiff had sought to enjoin election, no order ousting him from office could be entered, under

prayer for general relief, in lieu of dismissal of appeal as moot because election had been held.

N.C.L.1929, sec. 9214.


2. Action. Where elected and incumbent judge was not a party to action wherein plaintiff sought to enjoin the

election, rule providing that relief may be granted to a party entitled thereto even though not prayed for did

not apply to entitle plaintiff to quo warranto relief despite his failure to pray for such relief. Rules of Civil

Procedure, rule 54(c); N.C.L.1929, sec. 9214.

3. Appeal And Error. Where election which plaintiff sought to enjoin had been held pending appeal from denial of injunction,

and plaintiff's opponent had obtained majority of votes and assumed office, questions involved in

injunction suit were moot, and appeal was dismissed. N.C.L.1929, sec. 9214.

OPINION

Per Curiam:

[Headnotes 1-3]

Appellant was elected judge of the municipal court of the city of Las Vegas in the election

of May, 1953, for a term commencing the first Monday in June, 1953. At a general municipal

election to be held May 3, 1955, provision was made to vote for candidates for the office of

mayor, two commissioners and a judge of the municipal court. Appellant, claiming that by

reason of an act of the legislature approved March 16, 1953, Stats. 1953, 102, his term of

office would not expire for four years, namely on the first Monday in June, 1957, and that an

election of municipal judge after two years would be unlawful, would accomplish nothing

and would be a waste of the taxpayers' money, commenced an action to enjoin an election of

municipal judge at the May 3, 1955 election. His present appeal is from the order dismissing

his complaint. In the meantime, however, the election was held and his opponent received a

majority of the votes. Against the present motion to dismiss the appeal on the ground that the

same has become moot, appellant asserts that the issue as to the proper construction and

interpretation of the 1953 statute remains a matter for determination; that under Rule 54(c)

N.R.C.P. relief may be granted to a party entitled thereto even though ��,��


not prayed for; that his prayer for general relief entitles him to have his appeal heard on the

merits by this court. Other than the determination of an abstract question, the only relief

available would be such relief as is granted under our statutory proceedings in quo warranto

to try title to office. But appellant's opponent at the 1955 election, who received the majority

of the votes and is now occupying the office, is neither a party to this appeal nor was he

named as a defendant in the district court. Without his presence, it is manifest that no order

ousting him from office could be entered. Sec. 9214 N.C.L. 1929. Rule 54(c) has no

application. Questions of law involved in appellant's injunction suit having become moot, we

have no alternative but to dismiss the appeal. Edwards v. City of Reno, 45 Nev. 135, 198 P.

1090; Morrow v. Morrow, 62 Nev. 492, 156 P.2d 827. It is so ordered.

____________

��71 Nev. 199, 199 (1955) Dearden v. Galli��

VIVIAN H. DEARDEN, Appellant, v. ALBERT D.

GALLI, Respondent.

No. 3772

June 2, 1955. 284 P.2d 384.

Proceeding on appeal from ruling of clerk of Supreme Court denying successful appellant

certain costs claimed. The Supreme Court held that in absence of statute or rule authorizing

such recovery, prevailing appellant was not entitled to recover as costs the amount paid to a

surety company as premium for supersedeas and appeal bond.

Ruling affirmed.

See also 70 Nev. 410, 269 P.2d 1014; 70 Nev. 543, 277 P.2d 381.

Robert R. Gill, of Ely; Pike & McLaughlin, of Reno; Stewart, Cannon & Hanson, and

Ernest F. Baldwin, of Salt Lake City, Utah, for Appellant.

Gray & Horton, of Ely, for Respondent.


1. Costs. Costs were not recoverable at common law and can be recovered only pursuant to express authority of

statute or rule.

2. Costs. In absence of statute or rule authorizing such recovery, prevailing appellant was not entitled to recover as

costs the amount paid to a surety company as premium for supersedeas and appeal bond. Supreme Court

Rules, rule VI; N.C.L. 1929, sec. 7631; Stats. 1941, c. 189, sec. 165.

3. Costs. Where significance of statute relating to recovery of costs on appeal had been twice pointed out by

Supreme Court during effective period of statute, repeal of statute could not be attributed to legislative

inadvertence. N.C.L.1929, sec. 7631; Stats. 1941, c. 189, sec. 165.

OPINION

Per Curiam:

This is an appeal from a ruling of the clerk of this court upon costs, pursuant to Rule VI of

the rules of this court. The sole question is as to the right of the prevailing party upon an

appeal to recover as costs of the appeal the amount paid to a surety company as premium for

supersedeas and appeal bond. The appellant having prevailed herein upon his appeal from

judgment of the trial court (70 Nev. 543, 277 P.2d 381) a cost bill was filed by him which

included the item of $1,259.06 bond premium. Objection to this item was made by the

respondent and the objection sustained by the clerk's ruling.

[Headnote 1]

It has long been the rule in Nevada that costs, not being recoverable at common law, can

be recovered only pursuant to the express authority of statute or rule of court. McKenzie v.

Coslett, 28 Nev. 220, 80 P. 1070; State v. Baker, 35 Nev. 300, 129 P. 452; Dixon v. District

Court, 44 Nev. 98, 190 P. 352.

[Headnotes 2, 3]

No statute or rule of court authorizes bond premiums to be taxed as costs. Sec. 7631,

N.C.L.1929, formerly ��*��*��


allowed the taxing of a reasonable amount for the expense of procuring a corporate surety.

This section, however, has been repealed. 1941 Stats. of Nev., ch. 189, p. 528, sec. 165.

While the statute was in effect this court twice considered the question whether bond

premiums were allowable as costs. Richards v. Vermilyea, 42 Nev. 294, 300, 175 P. 188, 180

P. 121; Page v. Walser, 47 Nev. 386, 223 P. 1079. In each case, in holding such items

recoverable, this court expressly relied upon the cited statute. The propriety of allowing such

items as costs has, then, specifically been brought within the application of the general rule.

See also Anno. 81 A.L.R., p. 1532. In view of the fact that the significance of the statute in

this respect has twice been pointed out by this court, we may not, as suggested by the

appellant, attribute its repeal to legislative inadvertence.

The ruling of the clerk is affirmed.

____________

��71 Nev. 201, 201 (1955) Fick v. Parman��

C. W. FICK, Appellant, v. VERN R. PARMAN, RALPH PARMAN and GEORGE

SCHADLER, Respondents.

No. 3846

June 3, 1955. 284 P.2d 380.

Appeal from the Sixth Judicial District Court, Humboldt County; Merwyn H. Brown,

Judge.

Action to recover damages for wrongfully and maliciously driving plaintiffs' cattle from

their range. From a judgment for plaintiffs, defendant appealed. The Supreme Court, Merrill,

C. J., held that the evidence sustained finding that defendant had wrongfully and maliciously

driven 120 head of plaintiffs' cattle from natural basin in which they had been placed until

they could be trailed to winter range.

Judgment affirmed.

(Rehearing denied July 8, 1955.)

��71 Nev. 201, 202 (1955) Fick v. Parman��

E. P. Carville, of Reno, for Appellant.

Ernest S. Brown, of Reno, for Respondents.

1. Animals. In action to recover compensatory and punitive damages for wrongfully and maliciously driving

plaintiffs' cattle from their range, evidence sustained finding that defendant had wrongfully and maliciously

driven 120 head of plaintiffs' cattle from natural basin in which they had been placed until they could be

trailed to winter range.

2. Animals. Award of $2,577.20 compensatory damages and $250 punitive damages for wrongfully and maliciously

driving 120 head of plaintiffs' cattle from natural basin in which they had been placed until they could be

trailed to winter range, resulting in transportation costs, additional labor, and cost of winter feed, was not

excessive.

OPINION


This is an appeal from judgment in the sum of $2,827.20, damage suffered by respondents

through appellant's having wrongfully and maliciously driven from respondents' range 120

head of their cattle. Appellant contends that in three respects the findings of the trial court,

sitting without a jury, are without support of evidence: (1) In that respondents have failed to

prove that the cattle in question were driven from their range by appellant; (2) In that there is

no proof of malice; (3) In that the damages allowed are excessive. Our concern, then, is not

with propositions of law but with the sufficiency of the record to support the factual

determinations of the trial court. The following are the established facts.

Summit Lake Indian Reservation is located in northwest Humboldt County. The

surrounding area is predominately unsurveyed public domain. It is cattle country, range land

under the grazing supervision of the Bureau of Land Management. The reservation is high

ground. To the south the terrain drops off sharply ��

��71 Nev. 201, 203 (1955) Fick v. Parman��

into a valley in which are located the home ranches of the parties to the action. About twelve

miles south of the reservation in Soldier Meadows is the Fick ranch. Twenty miles farther

south is the Parman property.

By directive of the grazing service the Fick summer range has been confined to the area

south of the reservation. The Parmans have been allotted summer range to the east, north and

west of the reservation. For some years Fick has disputed this range division, asserting rights

to the eastern portion of the Parman range. In this he has not succeeded. In 1951, having

driven cattle into this area contrary to the order of the range manager and having failed, after

notice, to move them out, he was threatened with trespass proceedings. In October, 1952 (one

month before the incidents upon which this action was based) he had again been ordered by

the range manager to remove cattle from the Parman range. In 1953 trespass proceedings

actually were brought against him. He did, however, possess drift rights into the area in

question. In 1951 he was successful in requiring the Parmans to remove a fence which they

had erected to prevent his cattle from drifting into the area. As a result of their many disputes

the parties were not on the best of terms by 1952.

Adjoining the northeast corner of the reservation is a buckaroo camp known as Stanley

Camp, owned in fee by the Parmans and used by them as summer range headquarters. South

of Stanley Camp and also adjoining the reservation on the east is a natural pocket or basin,

approximately three miles in length, known locally as Snow Creek Basin. It has for years

been used by the Parmans as a natural holding ground in connection with their fall roundup.

To the north and west it is protected by the reservation fence; to the east and south by high

ridges of rimrock through which, although possible, it is unlikely that cattle would stray.

Around the first of November, 1952, the Parmans, from Stanley Camp, commenced a

roundup of cattle throughout their range surrounding the reservation. In ��:��8��;��

��71 Nev. 201, 204 (1955) Fick v. Parman��

this they were joined by representatives of other ranches (including the Fick ranch) whose

cattle might have drifted into the area. The roundup was substantially completed by

November 10. In accordance with a practice followed for many years the herd, held at Stanley

Camp, was separated according to ownership and classification. Cattle belonging to other

ranches were then put on the trail to those ranches. Certain of the Parman cattle were placed

in fields leased within the reservation. The balance of the Parman herd was thrown into Snow

Creek Basin from which it was later to be trailed to winter range, one portion northwest to

California; one portion south to the desert below the Parman home ranch.

At the time the herd was placed in the basin it was found that about 100 head of Fick cattle

already were there. Whether they had drifted there or had been driven there, contrary to orders

of the range manager, is not settled by the record. One of the Parmans, however, expressed

disbelief that this number of cattle could have strayed into the basin through the rimrock;

especially since he had found evidence of salt placed there apparently for their use.

On November 12 or 13 Fick with one buckaroo set out from Soldier Meadows for the

purpose of bringing his cattle back from the basin. It commenced to snow. By the time he had

reached the basin over four inches had fallen and it was still snowing. He made no attempt to

cut out his cattle from the herd. Instead, all of the cattle found within the basin were herded

through a gate in the reservation fence, thence through the reservation and were then turned

loose to drift south of the reservation. A few days later, according to his testimony, Fick

conducted his own roundup of the area south of the reservation. Over 400 head of cattle so

rounded up were gathered at Soldier Meadows. No other ranches were represented in this

operation.

On November 20, one of the Parmans passing through Soldier Meadows found 120 head

of their cattle held ��8��=��

��71 Nev. 201, 205 (1955) Fick v. Parman��

there in Fick's fields. Two days later they were by the Parmans trailed back to the home ranch.

Upon Fick's first contention two essential questions remain: First: How many head of

Parman cattle were driven from Snow Creek Basin? Fick and his buckaroo were the only eye

witnesses to this operation. Their testimony was that no more than 100 head had been driven

out of the basin, of which at least 75 were Fick cattle. However the fact that they were the

only eye witnesses does not compel acceptance of their testimony. Other testimony gives rise

to the inference that between 100 and 200 head of Parman cattle had been taken. Fick himself

testified that in the herding operation he had moved all cattle found in the basin. A

sheepherder camped nearby had observed the gather in the basin and estimated it at about 200

head. One of the Parmans estimated that about 200 head from the roundup had been placed

there in addition to the Fick herd already there. The Fick representative at the roundup fixed

this number at about 100 head.

[Headnote 1]

In support of their position upon this question, the Parmans assert that in no other way

than from the basin could 120 head of their cattle have wound up at Soldier Meadows. Fick

states that they came there as a result of his own roundup. It does not necessarily follow, he

contends, that all the Parman cattle south of the reservation came from the basin. They may

have drifted in from outlying range. From the testimony as to the manner in which the

Parman roundup had already covered this range and as to the normal extent of drift, the trial

court may well have felt it unlikely that this number of Parman cattle could have drifted south

of the reservation at the time of the Fick roundup. Certainly the record does not compel

acceptance of Fick's theory. There is support, then, for the court's determination,

notwithstanding Fick's testimony, that 120 head of Parman cattle had been driven from the

basin.

Second: Did Fick act wrongfully? He contends that, ��

��71 Nev. 201, 206 (1955) Fick v. Parman��

considering the storm, his action in fact amounted to rescue. The testimony of Parman

witnesses, however, was to the effect that this particular storm was not severe; that fenced

cattle could well have survived it; that the cattle in the reservation fields in fact did survive it

undamaged and were not moved out until November 29; that the same was true of bands of

sheep grazing in the neighborhood of or within the reservation; that weather conditions

during that winter were normal and would not have compelled the Parmans to move their

herd to lower ground until around the first of the year.

The record, then, does not compel a determination that Fick was legally justified in acting

as he did with the Parman herd. Considering the dubious nature of his right to be in the basin

at all, the trial court may well have concluded that Fick, in driving out the Parman cattle

along with his own, had compounded what might be termed a stockman's trespass quare

clausum fregit with a far more serious stockman's trespass de bonis asportatis.

Fick's second contention is that there is no proof of malice. Of the total amount of

judgment, $250 was allowed by the trial court as punitive damages.

Again Fick points to the storm. Even though this may have given him no right to move the

unsegregated herd still, he contends, it demonstrates that his motive was free from malice.

From the written opinion filed by the trial court it is clear that it disbelieved Fick upon this

point. The court obviously had in mind the continuing disputes between the parties, the order

of removal by the range manager the previous month and the ill will which the record

indicates still existed between them at the time of trial. Even at the time of trial Fick disputed

the range division and asserted rights to use of Snow Creek Basin. In response to the

Parmans' protests regarding the incident under consideration he had stated, according to one

of the Parmans, “If you don't want me to mess up your cattle, just keep them out of my

place.”

��71 Nev. 201, 207 (1955) Fick v. Parman��

Further the trial court's opinion specifically makes reference to one other incident disclosed

by the record. On November 13 the Parmans were summoned to a grazing meeting in

Winnemucca called upon a complaint made by Fick. The meeting did not materialize due to

Fick's failure to appear. Apparently the court inferred that the Parmans had deliberately been

induced away from the arena of action. Upon the record as a whole we are unable to state that

the trial court's inference of malice was improper and without sufficient foundation.

Finally Fick contends that the record demonstrates that the damages allowed were

excessive. The complaint sought $5,000 compensatory and $5,000 punitive damages. The

testimony of the Parmans, if accepted at face value, made proof of close to $6,000 loss. Fick

offered no evidence to offset this proof. He contends, however, that the Parmans' evidence

itself demonstrates that no attempt whatsoever had been made to mitigate damages; that on

the contrary the Parmans appear needlessly and recklessly to have taken the most expensive

possible course of relief.

[Headnote 2]

However, the Parmans' proof of loss was substantially discounted by the trial court itself in

allowing judgment for roughly half of the damage sought. The court did not attempt to

itemize the $2,577.20 compensatory damage allowed but did expressly recognize seven

distinct items of loss. These included transportation of the cattle destined for California which

otherwise could have been trailed from high ground; additional labor; winter feed required

due to the fact that the condition of the cattle, after several days of insufficient graze south of

the reservation, would not permit them to be placed upon desert range for the winter. The

record unquestionably supports these items.



____________

��71 Nev. 208, 208 (1955) State Ex Rel. Mathews v. City of Reno��

THE STATE OF NEVADA Upon the Relation of W. T. MATHEWS, Attorney General of

the State of Nevada, SONYA S. HOLLAND, FRANCES and GENE F. LATOURRETTE,

Wife and Husband, JANE B. and JOHN L. STADTLER, Wife and Husband, PHYLLIS and

CLEVELAND B. CRUDGINGTON, Wife and Husband, SUSAN S. HANCOCK, a Single

Woman, ANTHONY L. STADTHERR, PATRICIA S. KENDALL, a Single Woman,

ABRAHAM LINCOLN KENDALL, ELLA and WILLIAM EDWARDS, Wife and Husband,

JULIA C. JUDGE, M. O. LITTLE, and INTERLAKEN PARK CORPORATION, a Nevada

Corporation, Relators, v. CITY OF RENO, a Municipal Corporation, FRANCIS R. SMITH,

MAYOR, and WILLIAM A. LIGON, EDWIN SEMENZA, CHARLES E. COWEN,

THOMAS HARVEY, JOHN T. MYLES, and MARSHALL A. GUISTI, Councilmen of Said

City, Respondents.

No. 3758

June 28, 1955. 285 P.2d 551.

Original proceeding 1 in the nature of a quo warranto to test the legality of an annexation

ordinance of the City of Reno.

The Supreme Court, Badt, J., ruled where land annexed was virtually surrounded by city,

used primarily for residential purposes, and one portion of land ��*�� *��

____________________

1

This proceeding was instituted June 16, 1953, some seven months before this court published its caveat in

the January, 1954, issue, Vol. 19, No. 1, State Bar Journal, in which we announced the practice that where by

constitution and statute this court and the district courts were given concurrent jurisdiction with respect to the

issuance of certain writs, namely, habeas corpus, quo warranto, certiorari and mandamus, we would be guided in

the exercise of our discretion in the matter of accepting jurisdiction by consideration of (1) the local or

state-wide nature of the controversy; (2) the probability of a need for proof and the introducing and weighing of

evidence; and (3) the requirements of justice in the particular case. See the entire caveat as published.


annexed required city sewer service, annexation was not arbitrary or unreasonable.

Judgment for respondents.

See also 70 Nev. 167, 262 P.2d 953.

(Rehearing denied, August 26, 1955.)

Clyde D. Souter, Reno, for Relators.

Samuel B. Francovich and Bruce D. Roberts, Reno, for Respondents.

1. Municipal Corporations. Where land annexed was virtually surrounded by city, and contained many residences, mayor and

councilmen were justified in determining that normal growth and expansion of city warranted annexation of

such contiguous territory.

2. Municipal Corporations. Fact that three portions of land entirely surrounded by city were eliminated from annexation ordinance

did not prevent annexation of remaining part of such island if conditions justified it.

3. Constitutional Law; Eminent Domain. In considering whether an annexation ordinance is so unreasonable that it constitutes the taking of

property for public use without just compensation, or that it is lacking in due process or that it deprives

landowners of equal benefit of laws, court should not approach problem in a narrow and restricted view of

needs of the city or of the property itself, but broadly and in a manner commensurate with history of city's

growth, its present necessities and its promise of future development.

4. Municipal Corporations. Where land annexed was contiguous to city, and virtually surrounded by city, was used primarily for

residential purposes, and one portion of land annexed required city sewer service, annexation ordinance

was not arbitrary and unreasonable.

OPINION


The state, upon the relation of the named relators, to whom the attorney general was added

by an earlier order of this court, filed its complaint and information in the nature of a quo

warranto, praying that respondents be ousted and excluded from the lands of relators �� 3��G��


and barred from using or enjoying any rights, privileges or corporate powers of the City of

Reno upon or concerning said lands. In particular the complaint attacked the legality of an

ordinance annexing the lands in question. On November 5, 1953 we denied a motion to

dismiss the proceedings, 70 Nev. 167, 262 P.2d 953, and on March 22, 1954 we made an

order of reference to Honorable John S. Belford, judge of department 1, Second judicial

district, Washoe County, to take evidence upon the issues made by the pleadings and to

certify the same to this court. Upon the issues made by the pleadings and the oral and

documentary evidence submitted in such record, the matter was then submitted to this court

upon elaborate written briefs and oral argument. The result of the intensive preparation and

earnest presentation of the legal and factual issues involved is our concentration upon two

grounds upon which the validity of the annexation ordinance is assailed, (1) that the

annexation cannot be justified upon the ground that it was warranted by the normal growth

and expansion of the city, and (2) that its sole purpose was to construct a sewer which would

be of no benefit to the annexed property. As against both of these assaults, we have concluded

that the validity of the annexation must be sustained.

[Headnotes 1, 2]

1. Consideration of the physical aspects of the case leads to a conclusion that the

respondent city, its mayor and board of councilmen were justified in their determination that

the normal growth and expansion of the city warranted the annexation of this contiguous

property. The property consisted of parcels indicated on maps in evidence as parcels one, two

and three. These three parcels, together with three additional parcels known as the Souter

property, the Mongolo property and the Springmeyer property, constituted an “island”

surrounded on all sides by the city proper. Elimination from the annexation proceedings of

the Souter, Mongolo and Springmeyer properties left those three portions of ��2��-��*��


the “island” still unannexed. The Souter property, comprising some six and one half acres,

was said to have been eliminated from the proposed annexation by mistake or inadvertence.

Whether or not this was so does not affect our conclusions. The Mongolo property, involving

about 14 acres, and the Springmeyer property, comprising about 6 acres, were purposely

omitted by the city from the annexation proceedings because it was considered that those two

parcels were agricultural in nature and exempt from annexation without the consent of the

owners under the ruling of this court in State ex rel. Bibb v. City of Reno, 64 Nev. 127, 178

P.2d 366. The elimination of these three portions of the “island” (at least until some future

time when their annexation may appear to be justified) is, in the first instance, a legislative

question and presents no reason in law why the remaining part of the “island” may not be

presently annexed if the conditions justify.

Parcel one along its entire western boundary is contiguous to the city. On the easterly side

of parcel one (separated by Arlington Avenue, a street included in the annexation) parcels two

and three are contiguous to the city though not to each other, as they are separated by the

Mongolo parcel. Parcel two in turn is contiguous on the north and east, and parcel three is

contiguous on the south and east to the city proper. On the north, parcel one is contiguous in

part and on the south it is contiguous in part to the city proper. So we do have a situation in

which the three parcels annexed are virtually surrounded by the city. The physical aspects

must be considered further. Parcel one is divided into two parts by Plumb Lane, which runs in

an easterly and westerly direction approximately through the center of the entire parcel. It

leaves two tracts, each of which is fairly rectangular in shape, and the northerly part of which

has been subdivided into building lots and is known as Interlaken Park. Parcels two and three

are somewhat irregular in shape, and each is approximately one sixth to one eighth the size ��


of parcel one. Relators consider it significant that the building lots in Interlaken Park vary in

size from approximately one half acre to approximately one and one half acres, and are

considerably larger than the normal city building lots; that a series of artificial lakes extends

easterly and westerly through the approximate center of Interlaken Park; that five residences

have been constructed on five of these lots, respectively, and that the investments in these

five lots and buildings range from $20,000 to $65,000; that under the restrictive agreements

under which these lots were purchased the lots all have access to the lakes, rights of way have

been conceded to the owners of the various lots and various building restrictions have been

agreed to; that the residences already constructed, the eight or ten additional lots sold in

contemplation of further residential construction, the natural beauty and location of the

terrain, as well as the express purpose of the owners in choosing these lots for building sites,

all point to the selection and creation of Interlaken Park as “a place of beautiful suburban

living,” to which purpose the area as a whole is definitely dedicated. To illustrate this the

relators introduced in evidence sundry photographs of the lakes and of the five residences

there. They point out that there has been no dedication to public use of the access rights of

way. They point to their planting of trees, shrubbery and gardens as further proof of the

dedication of this property “to beautiful suburban living.” They do not want to become part of

the City of Reno; they want to be let alone. 2

But the history of the growth of the cities of this country is replete with situations of this

kind. Suburban portions of a city, remote from the center of trade and population, devoted

largely to residences more or less ��

____________________

2

Relators include owners of parcels involved in the annexation not within the area of Interlaken Park. Such

parcels, as well as the lots in Interlaken Park, have been duly considered in our conclusions. If it would appear

that our discussion has in the main dealt with the lots in Interlaken Park itself, it is because the main contentions

advanced in this proceeding come from that area.


scattered and occupying larger parcels of ground than those in the central portions, find

themselves engulfed within the growth of the city and geographically a part of it. Reluctance

to become a part of the municipal organization is understandable, but the march of time and

change is inexorable. The Supreme Court of Virginia, in permitting annexation in the face of

objection, remarked that such objection is not surprising: “A like condition has existed in

nearly every effort of a Virginia city to annex suburban areas * * *.” Norfolk County v. City

of Portsmouth, 186 Va. 1032, 45 S.E.2d 136, 138. In the instant case Interlaken Park was

subdivided into lots for sale. The original plat subdivided the park into twenty lots. An

amended plat effected a further subdivision into a total of thirty-three lots. Nine lots of an

approximate half acre each front on Plumb Lane along the southerly line of the subdivision

and four similar size lots front on the northerly line of the subdivision. The larger lots for the

most part form two tiers through the center of the subdivision, in addition to lots fronting on

the extreme easterly and extreme westerly boundaries. The entrance to the park is through a

gateway fronting on Arlington Avenue, a main avenue of approach to the city proper from the

south. Signs posted near this entrance read: “Beautiful Interlaken Park. Lots for sale. Choicest

homesites.” Restrictions binding on lot purchasers restrict the use to residential purposes only

and prohibit use for businesses, trades or professions. The general purpose as recited is “to

develop a beautiful, pleasant and desirable residential district.” Nothing in the foregoing

picture or in other descriptive matter appearing in the record or in the photographs indicates

that the beauties or ideals of suburban living will suffer by the annexation.

2. But relators contend that the sole purpose of the annexation is to subject the annexed

territory covered by the ordinance, including the properties of the relators, to the payment of

the expense of bringing a sewer to the parcel known as Country Club Heights and the thirty�� 2��-


homes thereon, although neither the relators nor their property “would benefit in the slightest

degree from a sewer so constructed.” It is asserted that the mayor and board of supervisors

frankly admitted that such was the purpose of the annexation.

Country Club Heights is a small rectangular tract in the southerly half of parcel one, with

its north boundary fronting on Plumb Lane, and extending south approximately to the center

of the southerly half of parcel one. East-west wise it is centered in the northerly boundary of

the south half of parcel one. Its access is by way of Hoyt Drive and Phillips Drive, running

south from and at right angles to Plumb Lane and these two drives are connected by Lampson

Lane, an east-west lane along its southerly boundary. In the area thus bounded are thirty

occupied homes. This is the tract and these are the homes from which came the petition for

annexation. Country Club Heights by itself, was not contiguous at any point to the City of

Reno prior to the annexation.

Country Club Heights, lying thus almost in the exact center of the entire parcel one, is

badly in need of sewerage. It has petitioned for annexation. It would be served by a sewer

extending westerly along Plumb Lane from a point on Plumas Street, which is the next street

paralleling Arlington Avenue, on the east. Such sewer would also provide immediate sewer

access to five lots of Interlaken Park—those lots in the southeast corner thereof whose

southerly boundaries front on the north line of Plumb Lane. Of the five residences already

constructed in Interlaken Park, two (the Crudgington residence and the Rowley residence) are

presently enjoying sewer service by connection with another City of Reno sewer. As to the

remaining lots in Interlaken Park, relators complain that it may be many years before the

sewer service may be available and then at great expense; that presently they are satisfactorily

served by septic tanks approved by the health authorities. They say that despite this, the City

of Reno contemplates ��3��3��


assessing them for that part of the sewer to be constructed primarily to serve the thirty

residences in Country Club Heights. The record does indeed indicate that this is precisely

what the board has in mind. But we are not here concerned with the legality of some future

assessment, or the lawfulness of assessing some particular parcels for some particular

improvement from which they may or may not benefit. The city charter contains ample

provisions for notice, objections and hearing, both with reference to the adoption of

ordinances for special assessment sewer construction and with reference to the levying of

such special assessments in accordance with frontage, benefits, etc. Reno Charter, Art. XII,

secs. 10.15 et seq., Stats. 1945, p. 408, et seq., 1953, p. 219. That situation has not yet arisen.

Our only concern is whether the ordinance effecting the annexation is, within the ruling in

Bibb v. City of Reno, so arbitrary, unreasonable, unjust and unnecessary as to render it

invalid.

Mr. Ligon, acting mayor of the city, when asked what consideration was given in

determining the propriety of annexing the Interlaken area, testified: “There were several

considerations. We considered the fact that there was a possibility, according to Judge

Souter's plea, that it might be termed as agricultural land, and I determined in my mind that it

was not agricultural land. The consideration of the sewerage was the most important for the

people in the area. Many of the people, and particularly south of the area, were in dire straits

as far as sewerage was concerned, and are at the present time. The other considerations were

that we didn't feel that we should leave another island in the City of Reno where they had

nothing but county property, and that our annexation should be, by all means contiguous, and

make that an integral part of the city and not be just an island there.” He testified that the

reason the Mongolo and Springmeyer properties were not included in the annexation, though

contiguous properties, was because of the supposed effect of the decision of this court in theA��,��6��5�� *�� ,��,��*��6��5��,��*�� *�� *��,��*��6��


Bibb case with reference to agricultural land; that subjecting the Interlaken Park property to

sewer construction cost, though one of the most important reasons for the annexation, was not

the compelling reason; that the compelling reason was the other above given; that in annexing

Interlaken Park the council gave thought to seweraging the entire area; that it would not have

been fair to annex only a part of that area, yet to bring the sewer mains into the other area not

annexed, and that this was a consideration for the annexation; that rough plans had been

drafted for extending the sewer to the other parts of the Interlaken area.

The city engineer testified that a firm of engineers on behalf of the city had conducted a

survey to determine the feasibility of sewering the area and that a report on such feasibility

had been made. This plan showed a spur north on Arlington Avenue, north of Plumb Lane to

a point which would be used as the entrance point for the laterals that would then be run into

Interlaken Park area. The report advised that there were no dedicated streets in Interlaken

Park and that some form of easement to put in the sewer system would be required; that the

tentative survey indicated a sewer on the north side of the lakes and one on the south side,

running generally easterly and westerly and sloping generally easterly toward Arlington

Avenue.

Raymond M. Smith, the director of planning employed by the city and county planning

commission, testified concerning what was known as the Freedom area, which includes

Interlaken Park. He had had a number of meetings also with the state planning board. That

board's recommendation was that the city annex the entire so-called Freedom area but this

was subject to any of the restrictions imposed by this court in the Bibb case. This involved

meetings also with the regional planning commission. Smith testified: “The planning

commission in arriving at their decision gave consideration to such facts as the administration

of an efficient and economic unit. That is the point that the Freedom area, �*��


existing as an island, tended to create an inefficient economic unit, as far as both the city and

county were concerned. They gave attention to the problem of a very definitely growing

sewerage and drainage difficulty, observing that the county had been talking sewer and

drainage solutions in the area, as well as other areas, for many years, without any appreciable

progress. They gave attention to the problem * * * of protecting the city areas surrounding it,

that is, the Freedom area exists as an island and sort of a vacuum, not subject to the

regulations concerning development and construction that the surrounding city areas were

subject to. Incidentally, along that line we had received a petition over a year or so before that

requesting a county building code, which was signed by quite a few resident owners in both

jurisdictions, and they gave also consideration to the proper development of community

facilities, particularly a street and highway progress, and which both through the acquisition

of rights of way, and through paving assessment programs it would be necessary to have one

administration unit.”

The restrictive covenants of Interlaken Park contained the provision: “Until sewage

disposal is provided for by a municipal corporation, all sewage disposal shall be by septic

tanks * * *. When sewers are municipally supplied, they must be made use of within a

reasonable time, and septic tanks discontinue.”

This then is the picture presented under which we are asked to set aside the annexation

ordinance, first, because it “is arbitrary, unreasonable, unjust and unnecessary,” Bibb v. City

of Reno, supra, [64 Nev. 127, 178 P.2d 368] and, secondly, because the annexation is said to

be for the sole purpose of assessing the lands of the relators to pay the costs of a sewer which

they cannot presently use and may not be able to use for many years. Relators concede frankly

that the only purpose for the citation of the Bibb case is for its rule that the city's right to

annex property is not an absolute one, as the Bibb case dealt entirely with attempted��*��


annexation of agricultural property under the circumstances there described. The opinion in

the Bibb case cited many Missouri cases, as the supreme court of that state dealt with many

annexation problems growing out of its rapidly growing cities. Such Missouri cases were

decided both prior and subsequently to State ex inf. Major, Attorney General v. Kansas City,

233 Mo. 162, 134 S.W. 1007, which in turn referred to the rule laid down in Vestal v. Little

Rock, 54 Ark. 321, 329, 15 S.W. 891, 16 S.W. 291, 11 L.R.A. 778, that from all of the

authorities gathered up to that date the correct rule to guide in annexation cases, and which is

still cited in 2 McQuillin, Municipal Corporations, 3d Ed., sec. 7.18, as proper, is that

contiguous lands may be annexed “(1) when they are platted and held for sale or use as town

lots; (2) whether platted or not, if they are held to be brought on the market and sold as town

property when they reach a value corresponding with the views of the owner; (3) when they

furnish the abode for a densely settled community, or represent the actual growth of the town

beyond its legal boundary; (4) when they are needed for any proper town purpose, as for the

extension of its streets, or sewer, gas or water system, or to supply places for the abode or

business of its residents, or for the extension of needed police regulation; and (5) when they

are valuable by reason of their adaptability for prospective town uses; * * *.” In the Kansas

City case the supreme court adopted the report of the commissioner as ably and fairly

reviewing the issue of the reasonableness of the annexation and properly supporting his

conclusions by the authorities cited by him. As did this court in the Bibb case, it considered

whether the annexation was so unreasonable that it should not be allowed to stand, but

concluded that it was no province of the court to substitute its own judgment of what would

be the best or most advisable line for the proposed extended limits of the city. As in the

instant case it was found that a pressing necessity existed for the installation of a sewer

system which would take care of the ��*��


sewerage in one section of the territory annexed. As in the case here, the value of part of the

land annexed depended entirely upon its use “for high class suburban homes.” As here, it was

necessary to look to the future rather than the immediate present use of the property. The

difficulty of determining whether annexation was justified because of the normal growth of

the city was recognized. “None of the decisions define what is meant by ‘growth,' or how far

into the future the city may look.” With reference to the objection that the inclusion of the

lands of the relators would subject the same to city taxes, both special and general, it was

aptly stated: “Special taxes are in the law's eye for direct benefits. City taxes for general

purposes do not constitute a violation of * * * constitutional provisions * * *.” Kelly v.

Pittsburg, 104 U.S. 78, 26 L.Ed. 658.

[Headnotes 3, 4]

Feeling as we do, that in considering whether the annexation ordinance is so unreasonable

that it constitutes a taking of property for public use without just compensation or that it is

lacking in due process or that it deprives the relators of the equal benefit of the laws we

should not approach the problem in a narrow or restricted view of the needs of the city or of

the property itself, but broadly and in a manner commensurate with the history of Reno's

growth, its present necessities and its promise of future development, we cannot feel that we

should be justified in vacating the ordinance. In the last analysis, to do this, we should be

substituting our own judgment in a matter which is largely one of legislative discretion. 62

C.J.S. 130, Municipal Corporations, sec. 46.

The direct question dealing with special taxes levied against relators' property on a

frontage or a direct benefit basis is not before us. Although relators complain that the

proposed sewer extension contemplated by respondents will be an elaborate and expensive

one and without benefit to their property, it is apparent that sewer extension plans are still in a

formative state.


What remedies, if any, relators may have if their constitutional rights are threatened by future

frontage or benefit assessments to defray sewer cost construction, we do not consider to be

properly before us in this proceeding in quo warranto in which there is assailed the validity of

the annexation ordinance and nothing more. State ex rel. Mining Co. v. City of Carterville

(Mo. App.), 183 S.W. 1093, 1095.

The judgment of ouster sought by the complaint is denied, and it is ordered that judgment

be entered in favor of respondents, together with their costs.


____________

��71 Nev. 220, 220 (1955) Percifield v. Foutz��

WOODROW W. PERCIFIELD, Appellant, v.

HAROLD B. FOUTZ, Respondent.

No. 3825

June 28, 1955. 285 P.2d 130.


Department No. 1.

Action by patient against dentist for injuries arising out of alleged negligence of dentist in

extraction of wisdom tooth. From a judgment in favor of patient, the patient appealed. The

Supreme Court, Eather, J., held that evidence was insufficient to establish that negligence of

dentist in failing to inform patient of possible presence of burr bits in tooth socket or jaw was

the proximate cause of subsequent pain and suffering sustained by patient.

Affirmed.

Michael L. Hines, Las Vegas, for Appellant.

Morse, Graves and Compton, and W. Bruce Beckley, Las Vegas, for Respondent.


1. Physicians And Surgeons. In action by patient against dentist for injuries arising out of alleged negligence of dentist in extracting a

wisdom tooth, evidence sustained finding that operation by dentist was performed according to standard of

care prevailing in area in which he practiced his profession.

2. Physicians And Surgeons. In action by patient against dentist for injuries arising out of alleged negligence of dentist in extraction of

wisdom tooth, evidence was insufficient to establish that dentist's negligence in failing to inform patient of

possible presence of burr bits in tooth socket or jaw was proximate cause of subsequent pain and suffering

sustained by patient.

OPINION


This is an action for damages for alleged injuries temporary and permanent arising out of

alleged negligence in the conduct of the defendant-respondent, in the extraction of a wisdom

tooth from the mouth of plaintiff-appellant. The prayer is for a total of $39,300 and for other

and further relief. The parties will be referred to as they were designated in the lower court.

Plaintiff alleged that defendant broke a saw-type drill, called a burr, in the course of the

extraction and caused the same to be lodged in the jaw bone of the plaintiff; that the

defendant failed to remove the entire wisdom tooth and caused a portion of the same to

remain lodged in plaintiff's jaw bone; that by reason of defendant's negligence plaintiff was

caused to undergo additional surgery; that in addition to pain and suffering plaintiff has

suffered permanent injuries in the form of numbness in the jaw, nervousness and headaches.

All allegations were denied by defendant.

After presentation of the evidence and argument of counsel, the trial court entered

judgment for the plaintiff in the amount of $123 on the ground, and no other, that the

defendant was negligent only in failing to inform plaintiff that it was possible that portions of

the dental burr were in his jaw, and that defendant was ��*��=��


liable only for damages sustained by plaintiff that were proximately caused by defendant's

failure to inform plaintiff of the possibility that the burr chips were in his jaw. From this

judgment plaintiff has prosecuted this appeal.

The defendant Harold B. Foutz is a dental surgeon, dentist, in the practice of his profession

at Las Vegas, Nevada, and had been such for a number of years prior to July 2, 1952.

On July 2, 1952, after plaintiff had been suffering for six hours from a badly diseased and

decayed tooth and inflamed and swollen jaw, he went to defendant dentist for treatment.

Upon examination defendant determined that the tooth should be extracted, and he

immediately proceeded to do so, in order to prevent further infection.

The tooth was anesthetized with novacaine and the mouth sterilized after an X-ray had

been taken. During the course of the extraction, it was necessary for defendant to use a drill,

called a burr, in order to cut the tooth to permit its removal. In removing the tooth small

portions of the burr broke off, but defendant did not know whether these small pieces

remained in the gum or not. In view of the fact that the pieces might be lodged in the patient's

gum (although defendant couldn't locate them after an examination) and because plaintiff was

exhausted and tired, defendant instructed plaintiff to go home and to return the next day for a

further examination. The evidence of defendant relative to instructing plaintiff to return on

the following day appears throughout his testimony. Defendant's nurse testified that such

instructions are given in every case of this type. As against this testimony, there is only the

plaintiff's indefinite statement that he does not “recall” the defendant's telling him to return.

No other testimony on this point was given.

After the extraction, plaintiff suffered pain and became ill. About three hours later, he had

a friend call a medical doctor, and he never again went to or contacted defendant.


As to the matter of the proper standard of care used by defendant, plaintiff admits in his

brief that the standard is that “usually exercised by dentists in the locality of Las Vegas.” The

only testimony on this point is that this standard was so used. No testimony on the point was

introduced by plaintiff, whose expert witness testified that he did not know what this standard

was.

The medical doctor treated him for several days, giving him penicillin and something for

pain. On July 9, a week after the extraction, an X-ray was taken which showed the burr

fragments, and for the first time plaintiff was told to see another dentist; but it was not until

July 15, six days after being advised to see a dentist, and thirteen days after the extraction,

that he finally went to see a dentist and have the pieces of burr removed.

As to the cause of plaintiff's injury, plaintiff's expert witness testified that it “could have

been caused by plaintiff's failure to see a dentist at all from the time of the extraction until Dr.

Woodbury, a dental specialist in oral surgery (plaintiff's expert witness) saw him two weeks

later.” He also testified that the inflammation which he treated could have existed prior to the

initial extraction.

It is clear from the evidence that the plaintiff suffered pain and numbness of the jaw, lip

and tongue after the extraction. However, Dr. Woodbury, plaintiff's expert witness, stated that

although it was impossible to say whether plaintiff's failure to return to Dr. Foutz added to the

inflammation, it did increase the pain and that the numb areas complained of by plaintiff are

“frequent” in this type of operation because of the nerves.

The complete absence of real proof that the failure to remove the burr pieces resulted in

the injury was further emphasized by Dr. Woodbury, when he testified to the removal of the

burr. He stated that he examined the two fragments of the burr, the tips of the burr, and did

not find pus on the burr heads, and that small pieces of metal imbedded in flesh often do not

cause pain or infection.


The trial court rendered an oral decision from the bench in which he found from the

evidence that the operation performed upon the plaintiff by the defendant was in accordance

with the standard of care existing in Las Vegas, Nevada, at that time; that the fact that the

drill parts and a piece of broken tooth remained in the jaw of the plaintiff was not negligence

per se, but that it was negligence on the part of the defendant in not notifying the plaintiff that

the burr points had broken off and that they might be imbedded in the jaw; that defendant's

damage naturally flowing from such negligence was the cost of the subsequent X-rays and the

removal of the burr points of the tooth in the aggregate sum of $123, for which judgment was

ordered to be entered; that there was an existing infection in plaintiff's mouth when he first

went to defendant; that the wisdom tooth at the time was badly decayed, which in itself could

have caused an infection; that there was no pus on the burr points when they were eventually

removed nor anything to show that such bits of metal had caused the infection which led to

plaintiff's pain and suffering; that plaintiff had failed to sustain the burden of proof by the

preponderance of the evidence that his pain and suffering or subsequent medical expense or a

subsequent operation for the removal of another tooth were the result of defendant's

negligence.

The trial court made formal findings following such oral decision. In these the court found

also that the standard practice of dentists in Las Vegas was to notify patients of any burr parts

that the dentist has reason to believe might be in the patient's jaw, and to offer further X-ray

service or at least warn the patient to return to the dentist as soon as possible. The court

rejected plaintiff's proposed finding that he was not physically capable of returning to the

defendant for treatment, and rejected the further proposed finding that the plaintiff was in

good health the day before he consulted defendant.


[Headnote 1]

Plaintiff asserts, first, that the trial court was in error in finding that the operation by Dr.

Foutz was performed according to the standard of care prevailing in Las Vegas. This, because

of the numbness in the jaw which followed the operation and because of absence of evidence

showing that such permanent numbness is a usual result. Without going at length into the

evidence upon this point, it may be noted that the defendant in his direct examination in his

own behalf testified that the procedure followed by him was standard procedure; that one of

the two expert witnesses for plaintiff agreed with this, although one of them testified that the

practice of using sulphanilimide following the operation was no longer considered good

practice. This in our opinion furnished ample support of the finding.

[Headnote 2]

The second and main assignment of error is that, having found negligence in the defendant

by reason of his failure to inform plaintiff of the possible presence of burr bits in the tooth

socket or jaw, it was error to limit damages to the expense of the following X-rays and the

subsequent operation by another dentist to remove the burr points.

In view of the absence of direct testimony to the effect that the burrs caused the subsequent

damages and in view of the positive testimony by plaintiff's expert that the inflammation

treated by Dr. Woodbury could have existed prior to the extraction, in our opinion the record

supports the conclusion that the plaintiff failed to prove that the subsequent pain and

suffering were the proximate result of the one item of negligence found in the defendant. If

such subsequent pain and suffering could, under the evidence, have been as well the result of

infection from which plaintiff was suffering before he was treated by defendant, as the result

of defendant's treatment of him, which the trial court was justified in finding, it was, under

the authorities, a failure of proof ��=��


that the defendant's negligence was the cause of such damage. It is said in Matuschka v.

Murphy, 173 Wis. 484, 180 N.W. 821, 824: “It is unnecessary to detail further the scientific

and expert evidence appearing in the record. It discloses this situation: Plaintiff had a chronic

infection of the lower jaw, of long standing, when he went to the defendants' office for

treatment. It was impossible to foretell the future progress of that infection. The subsequent

results could have followed from it without the pulling of the tooth at all or by the pulling of

the tooth and the subsequent treatment of the jaw according to the most exact scientific

methods. They might also have followed from defendant Stromberg's negligent and improper

practice and treatment. Which was the cause of the ultimate results cannot be told with any

degree of certainty.”

In Morris v. Weenie, 258 Mass. 178, 154 N.E. 860, the court said, in substance: “That the

plaintiff has failed to maintain the burden of proof if on the whole evidence the question of

defendant's negligence is left to conjecture, surmise or speculation. ‘If on all the evidence it is

just as reasonable to suppose that the cause is one for which no liability would attach to the

defendant as one for which the defendant is liable, then the plaintiff fails to make out his

case.'”



____________

��71 Nev. 227, 227 (1955) In Re Watson��

In the Matter of HARRY M. WATSON,

Attorney-at-Law.

No. 3812

July 12, 1955. 286 P.2d 254.

On review of action of Board of Governors of State Bar of Nevada recommending

suspension of Petitioner as member of bar.

The Supreme Court, Merrill, C. J., held that district judge's acts in respect to filing a

statutorily required affidavit respecting status of cases before him were official acts, and,

although judge was an attorney and required to be such to hold office, could not be

considered in disciplinary proceeding before Supreme Court.

Proceedings dismissed.

George E. Marshall, of Las Vegas, for Petitioner.

Paul Laxalt, of Carson City, for State Bar of Nevada.

1. Attorney and Client. The Supreme Court has inherent power and duty to discipline members of its bar. N.C.L.1929, sec. 565.

2. Attorney and Client. Appointment to bar, subject to discipline, is for life.

3. Attorney and Client. One does not, by taking judicial office, abandon the legal profession.

4. Judges. The people, through the legislature, may remove one from judicial office.

5. Attorney and Client. None but the Supreme Court may remove a man from his office as attorney.

6. Attorney and Client. As to attorneys in judicial office, disciplinary authority of Supreme Court, if any, is limited to field of

action outside of official duties. N.C.L.1929, sec. 8408.

7. Judges. The Supreme Court has no disciplinary authority over judges while acting as judges, and may not remove

or suspend a judge from office.

8. Evidence. Supreme Court in disciplinary proceeding against attorney who was a judge took judicial notice of fact

that voters of ��

��71 Nev. 227, 228 (1955) In Re Watson��

judicial district had, with full knowledge of alleged misconduct, returned him to office in face of active

opposition.

9. Attorney and Client. District judge's acts in respect to filing a statutorily required affidavit respecting status of cases before

him were official acts, and, although judge was an attorney and required to be such to hold office, could not

be considered in disciplinary proceedings before Supreme Court. N.C.L.1929, secs. 618, 8433.

OPINION


This matter is before us on review of action taken by the Board of Governors of the State

Bar of Nevada in disciplinary proceedings had against a member of the bar. The question

presented is whether we may discipline a member of the bar who is serving as district judge,

for acts committed while he was so serving.

The conclusion of the board upon its findings of fact is that the accused is guilty of

professional misconduct. Its recommendation is that he be disciplined by this court by

suspension from membership in the State Bar of Nevada for the period of one year and until

reinstatement by our order. The accused has filed a petition for review. He will hereinafter be

designated petitioner.

Petitioner is and since 1941 has been judge of the Seventh judicial district court of this

state. Sec. 618, N.C.L.1929, provides that no person shall be eligible to the office of district

judge unless he be an attorney duly licensed and admitted to practice in all the courts of this

state. Petitioner was at the time he originally took office and is now so qualified. His name is

still enrolled as a member of the bar of this court and he has continued to maintain active

membership in the State Bar of Nevada.

The actions asserted to constitute misconduct occurred during 1952 and 1953. At that time

sec. 8433, N.C.L. 1929, provided as follows 1 :

“Each district judge shall, before receiving any �� -

____________________

1

This section later was declared unconstitutional by this court. Watson v. Merialdo, 70 Nev. 322, 268 P.2d

922.

��71 Nev. 227, 229 (1955) In Re Watson��

monthly salary, file with the clerk of each county within his district and with the state

controller, an affidavit, in which shall be set forth the number of cases, motions or other

matters submitted to him as such district judge in and for each county embraced within his

district which remain undecided and that no such case, motion or matter remains undecided

which has been submitted for a period of more than ninety days.”

On six occasions during 1952 and 1953 petitioner executed what purported to be affidavits

under sec. 8433 in which he stated that he had no cases, motions or other matters pending

before him which had remained undecided for longer than ninety days. On each occasion this

statement was false. These documents were filed by petitioner with the county clerk of White

Pine County with the intent that they be accepted as affidavits under the statute. They were so

accepted and petitioner's salary was paid to him in reliance thereon.

There is no question but that such acts on the part of an attorney would be held to be

professional misconduct and would subject him to disciplinary action. In Re Alward, 59 Nev.

102, 86 P.2d 27. The question is whether, petitioner being a judge, this court retains the right

and duty to discipline him as an attorney for such misconduct.

[Headnote 1]

This court has always possessed the power and duty to discipline the members of its bar.

Dignan v. State Bar, 58 Nev. 82, 70 P.2d 774. Such members are admitted to office by act of

this court following its satisfaction that they are qualified to hold office. The court's control

and duty to maintain ethical discipline over these, its appointed officers, are inherent. Such

power is recognized by the State Bar Act which expressly disclaims any intent to alter or limit

it. Sec. 565, N.C.L.1929.

[Headnotes 2-5]

It may be noted further that when one is appointed to the bar, the appointment, subject to

discipline, is for life. When one is chosen for the district bench in this ��

��71 Nev. 227, 230 (1955) In Re Watson��

state, that election is not for life but for a term of four years. One does not, by taking judicial

office, abandon the legal profession. The people, through the legislature, may remove one

from judicial office. None but this court may remove a man from his office as attorney.

Petitioner contends that since a district judge may not practice as an attorney in this state,

sec. 8408, N.C.L. 1929, his responsibilities as an officer of this court during such term of

judicial office, must be held to be in a state of suspension; that he is, during his term of office,

beyond the reach of this court's disciplinary power.

The Board of Governors, on the other hand, contends that since one's eligibility to judicial

office is in part dependent upon his status as an attorney and since this court controls that

status, his eligibility cannot be said to have become a matter solely of public judgment. The

board recognizes that this court has no power to remove a judge from office. It contends,

however, that one's eligibility as an attorney, either to continue in judicial office or to succeed

himself upon completion of the term for which he has been elected, continues subject to the

control of this court; that such control constitutes a responsibility which we have no right to

delegate. There is much support for this position. In Re Spriggs, 36 Ariz. 262, 284 P. 521; In

Re McGarry, 380 Ill. 359, 44 N.E.2d 7; State ex rel. Nebraska State Bar Ass'n v. Wiebusch,

153 Neb. 583, 45 N.W.2d 583; Copland v. Newcomb, 66 Ohio App. 304, 33 N.E.2d 857; In

re Copland, 137 Ohio St. 637, 32 N.E.2d 23; In Re Burton, 67 Utah 118, 246 P. 188; In Re

Stolen, 193 Wis. 602, 214 N.W. 379, 216 N.W. 127, 55 A.L.R. 1355.

[Headnote 6]

As to those in judicial office, however, our disciplinary authority, assuming it to continue,

must be held limited to the field of action outside of official duties.

[Headnotes 7, 8]

Our constitution and statutes have conferred upon this court no disciplinary authority over

judges while acting as judges. As we have noted, it is not within the ��

��71 Nev. 227, 231 (1955) In Re Watson��

power of this court to remove or suspend a judge from office. A district judge owes his office

not to appointment by this court but to election by the people. For what he does in his official

capacity he is responsible to the public as its duly chosen officer and not to this court as our

appointed officer. By the same token this court (aside from its function of judicial review and

from that advisory encouragement normally expected of sound and effective leadership)

cannot be said to be responsible for what a judge does in his official capacity. That

responsibility rightly lies with the public which has placed him in office and chooses to retain

him there. The matter of judicial responsibility is peculiarly pointed up in the present

proceeding. We can take notice of the fact that the voters of the Seventh judicial district, with

full knowledge of the misconduct of petitioner, last year returned him to office in the face of

active opposition.

Although perhaps beyond our immediate concern of disciplinary authority, it might also be

noted that while, in other states, superintending control over inferior courts is commonly

granted appellate courts by constitution or statute (see ann. 112 A.L.R. 1351), no such

authority is granted by constitution or statute in Nevada. It may, then, be seriously questioned

whether we have any power, save through our appellate authority and the limited jurisdiction

of our original writs, to supervise the work of the district courts or to enforce performance by

the district judges of their official duties or, with a critical eye, to examine into the manner in

which such duties have been carried out.

In any event, however, it is clear that disciplinary proceedings such as this may not be

converted into a review of the manner in which a judicial officer chooses to carry out his

official duties. In Re McGarry, supra. See also In Re Meraux, 202 La. 736, 12 S.2d 798,

where this proposition was conceded by both sides.

As authority in opposition, the Board cites In Re Green, 30 Nev. 164, 186, 93 P. 997, 17

L.R.A., N.S., 572. This was a disbarment proceeding against a district ��

��71 Nev. 227, 232 (1955) In Re Watson��

judge for conduct contemptuous of this court. The judge from the bench had attacked this

court in such a manner as “to destroy, in a measure at least, public confidence in the integrity

of the highest tribunal in the state, and thus impair the respect due its authority.” The judge

further had ordered his remarks spread upon the minutes of his court. Under separate filings

the attorney general sought redress by contempt and by disbarment. This court was concerned

only with the expunging of the contemptuous remarks from the minutes of the district court.

Faced with alternative methods of accomplishing this end and no objection being raised

specifically as to the disciplinary method, this court chose to act through the disbarment

proceeding. The remarks subsequently having been expunged by the district court, no

discipline was imposed. The questions here considered by us were never raised and clearly no

determination was made or intended to be implied with reference to them. Any implication

contained in the Breen case contrary to our decision in this matter is, therefore, disapproved.

[Headnote 9]

We are left with the question whether, in executing and filing the documents here

involved, petitioner acted officially as a judge or, on the contrary, acted apart from his judicial

duties. The affidavits were, in effect, public reports as to the manner in which petitioner was

carrying out his official public responsibilities. They were by statute required of him as a

judge. Clearly they were official acts and the manner in which they were performed may not

here be scrutinized.

Proceedings dismissed.


____________

��71 Nev. 233, 233 (1955) Jezowski v. City of Reno��

PHYLLIS HELEN JEZOWSKI, Appellant, v. CITY OF RENO, NEVADA, a Municipal

Corporation, Respondent.

No. 3844

July 18, 1955. 286 P.2d 257.


Department No. 2.

Suit against city to recover damages for allegedly operating municipal dump as a nuisance

and to abate alleged nuisance. From a judgment on a verdict for defendant and an order

denying plaintiff's motion to vacate such judgment, plaintiff appealed. The Supreme Court,

Badt, J., held that finding that maintenance of dump was not a nuisance was supported by

substantial evidence.

Affirmed.

(Rehearing denied August 26, 1955.)

Martin J. Scanlan, of Reno, and Harry Russell Thayer, of Carson City, for Appellant.

Samuel B. Francovich and Bruce D. Roberts, of Reno, for Respondent.

1. Municipal Corporations. Maintenance of city dump could not be characterized as a nuisance per se.

2. Municipal Corporations. In suit against city by owner of nearby residence property to recover damages for allegedly operating

municipal dump as a nuisance, whether dump, as maintained and operated by city, constituted an actual

nuisance or merely resulted in simple annoyance, inconvenience or discomfort to plaintiff was a question

for jury.

3. Nuisance. A “nuisance” may be defined as such unreasonable, unwarrantable or unlawful use by a person of his own

property, or his improper, indecent, or unlawful conduct which operates as an obstruction or injury to the

right of another or to the public and which produces such material annoyance, inconvenience, discomfort or

hurt that the law will presume a consequent damage.



municipal dump as a nuisance, finding that operation of dump did not constitute a nuisance amounted to a

finding that, though plaintiff might have suffered some inconvenience, annoyance or discomfort by reason

of operation of dump, such inconvenience, annoyance or discomfort was not so material as to constitute a

nuisance.


municipal dump as a nuisance, finding that maintenance of dump was not a nuisance was supported by

substantial evidence.

OPINION


Mrs. Jezowski sued the City of Reno for damages for operating its municipal dump ground

as a nuisance, and further sought a judgment abating it. A jury found the dumping ground not

to be a nuisance and plaintiff has appealed from the judgment entered thereon and from the

court's refusal to vacate it. The sole question presented to us is whether the verdict of no

nuisance finds any substantial support in the evidence. In other words, does the record compel

a determination that a nuisance existed by reason of the manner in which the city was

operating its dump and that the trial court thus committed error in refusing to vacate the

judgment.

Mrs. Jezowski, then Mrs. Fields, in 1952 recovered a judgment for $1,000 under a similar

cause of action. The same relative position of the dump on the one hand and plaintiff's

residence on the other hand then existed. The city maintained its dump in a canyon some

distance north of the city limits and had operated it for a great number of years before 1946

when plaintiff acquired her residence property about a mile to the northeast. For many years

prior to 1952 the city used the burning method of disposing of waste material. During this

period but little control was exercised over the dumping area. The waste material was

dumped into a ravine and ��


burned without much effort to confine it to any particular area. Individuals dumping their own

refuse would, for the most part, dump it where most convenient to them and such material

was not covered. As a matter of fact when the city attempted to exercise control by denying

access to the area during various hours, individuals would dump their refuse along the road

leading to the dump ground or at the closed gates or anywhere in the neighborhood they saw

fit. Fire and smoke continuously poured from the dump ground, and papers and trash were

blown about by the winds. Between the time the plaintiff recovered her first judgment and the

time of the conditions of which she complains in her second action, various changes

occurred. The former city manager, who had been employed as such from 1947 to 1953, had

made a study of the dump situation. Disposition by means of an incinerator was considered.

This method was discarded for three reasons. The estimated cost would have run to between

six hundred thousand dollars and one million dollars. The use of such method would have

virtually eliminated private dumping—and private dumping in an accessible dump was

considered a prime factor in preserving a clean city. Thirdly, an incinerator would still have

created fire, smoke and odor and would not entirely solve the problem. Next a study was

made of what is known as the land-fill method which was checked by the city's engineering

department. It was found that various cities of comparable and greater size pursued this

method with good results. The engineering department further checked to see if the dumping

area was suitable for a land-fill operation. Nature and depth of soil were investigated, and

found to be satisfactory for a period estimated at between five and ten years. The

establishment of this method was postponed until further funds were available in an increased

budget and by increasing the city's charge against the inhabitants of the city for trash removal.

In the meantime various other sites were investigated one by one and rejected. Conferences

were ��


had with various other city engineers and the land-fill method was found to be widely used.

Continuous studies were made through the publications of the city managers' association. The

method installed was the establishment of a caretaker continuously in charge who told people

exactly where to dump. This followed a general cleaning up of the area.

The present city manager described the method now used. The waste materials are dumped

in the area reserved at the time for dumping. A bulldozer pushes the material over the

embankment or into the lower section that is being filled. This is then compacted by the dozer

and a dirt cover is placed over it. A different section in a deep ravine is used for bulky

materials such as car bodies, trees, etc. The softer materials, papers, cartons, ashes, etc., are

dumped where they can be covered as fast as possible. A bulldozer is kept working at all

hours during which the dump ground is open—approximately fifteen hours a day, depending

on the number of daylight hours available, including Saturdays and Sundays. It is worked

continuously in two shifts. The caretaker also acts as watchman, opening and closing the

gates at the beginning and end of the day, and closing the gates in periods of high wind, with

signs posted accordingly. Some fires inevitably start, mainly through the dumping of hot

ashes. This is constantly controlled by the dirt fill. Additional equipment, consisting of

draglines, shovel and equipment and an additional bulldozer have from time to time been

rented and used. Eight hundred feet of 4 1/2-foot drift fence with 7-foot posts (to permit of

higher construction if necessary) was constructed along the easterly or leeward side of the

dump ground for the purpose of collecting any material that would be blown in the direction

of plaintiff's property. Roads were blocked off to prevent dumping in unauthorized areas. The

city's witnesses testified that the improvements that had been made were such that there was

no comparison with the former operation. Appellant contends that all of this is irrelevant, and

simply means that despite the fact that the city was ��


trying hard to correct the situation, the record still compelled the conclusion that the dump as

operated still constituted a nuisance. By reason of the pleadings, the period of the events

recited by plaintiff and her witnesses was necessarily confined to the time between May 15,

1953 and October 1, 1953. She testified that her first case ended in February, 1952, that she

waited one year to give the city a chance to clean up the situation, that by May, 1953 the

conditions were still as bad if not worse, that she complained to the city manager's office and

on May 21 took a number of photographs, that on that day the city manager sent out fifteen or

sixteen prisoners who cleaned up all around the place, that on June 8, 1953 the condition was

bad again and prisoners were sent out all week picking up papers, that on July 13, 1953 a big

fire started on the dump and cinders and half-burned papers were blowing all over the

property, and plaintiff got her hoses ready, that at eight o'clock that night the city had a blade

working at the dump but could not control the fire, that on July 21 she filed her claim. Events

and conditions testified to by her in December, 1953 and January, 1954 were without the

period involved in the action and need not be discussed. She testified that the fence promised

by the city manager was never built, that they built “little fences” that did not confine the

material. “I don't believe a fence a hundred feet high would keep it fenced when the wind

blows.” She said that the smoke would blow across their property all the time, that there were

small fires continuously, that they choked on the smoke, that the smell was horrible, that one

could hardly breathe, that their place would be surrounded by smoke, that on one occasion the

smoke was so bad that she and her husband and her child had to leave their property. Her

testimony was given from a diary kept at the time. Photographs showing papers, cartons and

tumbleweeds blown up against her fence were introduced in evidence. Two of her neighbors

corroborated her testimony, though neither of them had made any claim against the city.

If the jury was compelled to accept in its entirety the �� *��


testimony on behalf of the plaintiff, it would certainly appear that a nuisance did in fact exist.

We recently noted however in Fick v. Parman, 71 Nev. ......, 284 P.2d 380 (petition for

rehearing denied): “[T]he fact that [plaintiff's witnesses] were the only eye witnesses does not

compel acceptance of their testimony. Other testimony gives rise to the inference” that the

facts were other than as stated by these eye witnesses. Quite clearly the jury chose to discount

the testimony of these witnesses substantially. Their testimony was not of such a character

that it could categorically be denied by the city and therefore any failure on the part of the city

so to deny this testimony can hardly be held to constitute an admission. The city did about the

only thing it could do to dispute this testimony and that was to present evidence of the

manner in which the dump was being conducted. Such testimony produced the logical

inference that the testimony of plaintiff's witnesses was grossly exaggerated and that there

was much doubt as to the probability that the injury was as great as it was claimed to be.

Plaintiff's photographs in evidence however cannot be disputed and they do show a

substantial accumulation of trash along plaintiff's fence. This, however, was not shown to be

a constant condition and it would appear that the photographs were taken on occasions when

an accumulation of trash had resulted over a considerable period of time. In almost all

instances work crews from the city cleaned up the premises. To this must be added the jury's

right to consider the probability that the trash had escaped from possibly other sources (and

possibly to some extent from the dump itself) as a result of high winds beyond the control of

the city. As noted, plaintiff thought that even a hundred-foot fence would not control the trash

in periods of high wind. She testified to one wind that blew her fence down and part of her

roof off. “We have whirlwinds constantly that pick [the waste material] up and toss it, blow it

over.” Two inferences might well have been drawn by the jury—first that such winds might

have ��=�� ,�� G��@��


deposited on plaintiff's premises materials from the rubbish-laden premises adjoining her on

the north, even though ordinarily she would not lie to leeward of such premises; and

secondly, that if trash were deposited on her premises by whirlwinds, many residences in the

Reno-Sparks area suffered likewise.

[Headnotes 1, 2]

It is evident that the maintenance of the dump by the city may not be characterized as a

nuisance per se. McQuillin, Municipal Corporations, sec. 54.207, 66 C.J.S. 802, Nuisances,

sec. 49. It is conceded that, except in the rare cases in which something may be characterized

as a nuisance as a matter of law, the determination of whether the particular operation

constitutes a nuisance remains a question of fact. It was therefore within the province of the

jury to determine whether the line had been crossed which would distinguish between simple

annoyance, inconvenience or discomfort and actual nuisance. This distinction has been

continuously recognized by the courts. Appellant minimizes this distinction, contending that

her injury, however slight, would entitle her at least to nominal damages even though the jury

might be loath to recommend abatement or the court to order abatement. In this she relies

strongly on Wilson v. City of Portland, 153 Or. 679, 58 P.2d 257, 259, as stating the law

applicable to facts similar to those here. After observing that it was not claimed that the

fumes and odors from the dump caused sickness or objective physical injury, the court there

said: “However, we think a person is entitled to enjoy the comforts and pleasures of his home

without being compelled in this modern age to breathe foul fumes and odors coming from an

unsanitary fill. Notwithstanding there was no sickness or expense incurred for medical

services, we think plaintiffs have shown at least a nominal damage.” This language was used

in sustaining the action of the trial court denying a motion of the defendant for judgment on

the pleadings. However, the court said: “The special injury to afford a basis for damages,

other than ��


nominal damages, must be of a substantial character. We do not intend to hold that the city

can be held liable in damages for every slight inconvenience or discomfort resulting from a

nuisance causing obnoxious odors or fumes.”

[Headnote 3]

This is a situation well recognized in many cases and is entirely logical and

understandable. In a very recent case the same court, while announcing that it would not relax

the rule of Wilson v. City of Portland, refused, under the circumstances of the case, to hold

that the dumping of raw sewage into a slough was a nuisance resulting in recoverable

damage, although the case was decided mainly upon an estoppel. East St. Johns Shingle Co.

v. City of Portland, 195 Or. 505, 246 P.2d 554. The same court in the recent case of

Amphitheaters, Inc. v. Portland Meadows, 184 Or. 336, 198 P.2d 847, 852, 5 A.L.R.2d 690,

recognizing that the existence of a nuisance is generally a question of fact, observed that it is

established law that an intentional interference with the use and enjoyment of land “is not

actionable unless that interference be both substantial and unreasonable,” citing Restatement

of the Law of Torts, Vol. 4, sec. 822, comment g and sec. 826, comment a. The opinion,

written by Mr. Justice Brand, also cites Salmond on the Law of Torts, 9th Ed., 238, to the

effect that interference with property or personal comforts “must be substantial.” And many

cases are cited which consider the question as to whether a particular annoyance or

inconvenience is sufficient to constitute a nuisance. The court approved the language used in

Shepler v. Kansas Milling Co., 128 Kan. 554, 278 P. 757, that: “The law does not in every

instance provide directly for compensation or financial redress for every damnum a man may

sustain as a member of an organized community.” In the particular case interference with the

full enjoyment of darkness by a lighted park was held not to be sufficient to reverse a directed

verdict for the defendant by the trial court. In an early case this court defined a ��


nuisance and confined it to such unreasonable, unwarrantable or unlawful use by a person of

his own property, or his improper, indecent or unlawful conduct which operates as an

obstruction or injury to the right of another or to the public and produces such material

annoyance, inconvenience, discomfort or hurt that the law will presume a consequent

damage. Bliss v. Grayson, 24 Nev. 422, 454, 56 P. 231.

For the instruction of the jury the court defined a nuisance as “anything which is injurious

to health, or indecent or offensive to the senses, or an obstruction to the free use of property,

so as to interfere with the comfortable enjoyment of life or property.” It further instructed the

jury that if it found that the defendant was maintaining a nuisance in the operation of the

dump, to determine, as only advisory to the court, whether it should be abated, and, if damage

had been caused, then to determine the amount of the damage. It further instructed the jury,

without objection from the plaintiff: “If you find that the defendant has not been maintaining

a nuisance in the operation of the city dumping ground, you will return a verdict to that effect

and you need not decide any of the other issues.” No error is assigned by reason of this

instruction. Under the theory of both parties, if the jury found that the maintenance of the

dump was not a nuisance, that was the end of the matter.

The plaintiff, the plaintiff's husband and two of plaintiff's neighbors all testified that the

conditions during the period embraced in plaintiff's complaint, which was the period during

which the earth-fill method was used, with restricted dumping, constant patrolling of the area,

covering of the refuse, etc., were no better than they were when the dump and burn method

was used. It is evident that the jury disbelieved this testimony and that they believed that the

extravagant statements made by plaintiff and her witnesses justified them in discounting the

probative effect of the photographs. Whether they considered that the photographs indicated��


only isolated instances or that the damage shown was not material or that the whirlwinds

brought the waste material from other sources or that they themselves were the victims of

many whirlwinds during the season, we can only conjecture. Nor should we overlook the fact

that the learned trial judge heard and observed the same witnesses and felt that it was within

the jury's province to determine the factual issue of the existence of a nuisance and refused to

interfere.

[Headnotes 4, 5]

In the last analysis we feel that the jury's finding that the operation of the dump by the city

did not constitute a nuisance amounted to a finding that although the plaintiff may have

suffered some inconvenience, annoyance or discomfort by reason thereof, it was not so

material as to constitute a nuisance. We are of the opinion that the record did not compel a

finding of nuisance, but that on the contrary there was substantial evidence to support the

finding that the maintenance of the dump was not a nuisance.

The judgment and the order denying the plaintiff's motion to vacate the same are affirmed

with costs.


____________

��71 Nev. 243, 243 (1955) Pioneer Title Ins. & Trust Co. v. Cantrell��

PIONEER TITLE INSURANCE AND TRUST COMPANY, a Corporation, Appellant, v. W.

W. CANTRELL, Et Al., Respondents.

No. 3853

July 19, 1955. 286 P.2d 261.


Department No. 2.

Action by insured against insurer to recover under policy of title insurance. From a

judgment for the insured, insurer appealed. The Supreme Court, Merrill, C. J., held that where

one of insured's predecessors in title conveyed property in question less a strip of 60 feet off

westerly side for public highway but insured's deed did not refer to exception and title policy

after referring to complete description stated it did not insure against defects, liens and

encumbrances listed in policy which contained clause subject to the reservation of a strip of

land of 60 feet off the westerly side for public highway, policy did not insure against such

limitation regardless of whether language technically resulted in a lien, encumbrance or other

matter to which insured's title was subject.

Reversed.

J.W. Muir of San Bernardino, California, and McNamee & McNamee, of Las Vegas, for

Appellant.

Hawkins and Cannon, of Las Vegas, for Respondents.

Insurance.

Where insured's title policy after referring to complete description of insured's property stated it did

not insure against defects, liens and encumbrances listed in policy which contained clause subject to the

reservation of a strip of land 60 feet off the westerly side for public highway, policy did not cover such

limitation regardless of whether or not language technically resulted in a lien, encumbrance or other

matter to which insured's title was subject.


OPINION


This is an action upon a policy of title insurance. The sole question upon this appeal is

whether the defect in title which was the basis of suit is one covered by the policy. The trial

court ruled that it was and granted judgment against the insurance company in the sum of

$6,000. Upon this appeal from that judgment the company contends that the defect is one

which is expressly excepted from the terms of the policy. In our view its position is well

taken and judgment must be reversed.

In 1922 a parcel of property located in Las Vegas was conveyed by H. J. Woodard as

grantor to Mrs. A. D. Herman as grantee. The property conveyed, described by section

divisions, was expressly limited by the following language, “less a strip of uniform width of

60 feet off the westerly side of said parcel of land for public highway.”

Through intervening conveyances a portion of the property so conveyed reached the

plaintiffs by deed in April, 1942. This portion is roughly triangular in shape. It abuts Fremont

Street for a distance of 598 feet, its depth tapering from 297 feet on the east to 16 feet on the

west. The 60-foot strip specified in the Woodard deed constitutes the extreme westerly tip of

the triangle. The deed to plaintiffs made no mention of the strip or of any limitation with

respect thereto.

On May 4, 1942 a policy of title insurance was issued by the defendant company to the

plaintiffs upon the property so conveyed. In pertinent part the plaintiffs were insured against

loss or damage which they “shall sustain * * * by reason of any defect in, or lien or

encumbrance on said title, existing at the date hereof, not shown in Schedule B * * * which *

* * [is] made a part of this policy.” Schedule B provides in part, “Liens and encumbrances to

which said title is subject, shown in the order of their priority, and defects and other matters

to which said title is subject: * * * 3.


Subject to the reservation of a strip of land of uniform width of 60 feet off the westerly side

of said parcel of land for public highway, as reserved in the deed from H. J. Woodard to Mrs.

A. D. Herman, dated May 19, 1922 and recorded December 15, 1922 in Book 9 of Deeds,

page 118, in the office of the County Recorder of Clark County, Nevada.”

The effect of the language in the Woodard deed has been judicially determined. In 1943 a

deed to the strip was given by Woodard. Subsequently an action to quiet title thereto was

brought by the grantee's successor in interest against these plaintiffs. By court decree in

January, 1952, it was determined that by the language of limitation in his deed Woodard had

retained title to the strip. He had not conveyed it subject to an easement or use but had wholly

excepted it from the conveyance.

Plaintiffs' position is that the policy of title insurance by its express language shows the

entire piece of property to be vested in plaintiffs subject only to such matters as “liens and

encumbrances” and “defects”; that as a matter of fact it was not vested in them; that the state

of the plaintiffs' title to the strip was not that of being subject to correctable defects; that there

was complete failure of title. The intent of the policy, however, is clear. As to the strip the

company did not intend to insure against the language of limitation contained in the Woodard

deed to which the policy expressly referred. This intent cannot be affected by any

determination as to whether that language resulted, in a technical legal sense, in a lien,

encumbrance, defect or “other matter” to which plaintiffs' title was subject.

In Caruso v. John Hancock Mutual Life Ins. Co., 136 N.J.L. 597, 57 A.2d 359, 360, 361, it

is stated, “The authorities are in agreement as to the fundamental rules of construction, for a

policy of insurance is simply a contract and its provisions should, of course, be construed as

in any other contract. * * * It is not a proper function of the court to re-write or distort a

contract under the guise of judicial construction. * * * ‘The ��


law will not make a better contract for parties than they themselves have seen fit to enter into,

or alter it for the benefit of one party and to the detriment of the other. The judicial function

of a court of law is to enforce the contract as it is written.'” To the same effect are Evans v.

Metropolitan Life Ins. Co., 26 Wash.2d 594, 174 P.2d 961; Shinn v. Family Reserve Ins. Co.,

33 Ala.App. 281, 33 S.2d 741; Knouse v. Equitable Life Ins. Co. of Iowa, 163 Kan. 213, 181

P.2d 310.

Accepting that the company has, by Schedule B, provided an exception to its insurance as

to the strip of land, plaintiffs contend that by the language of the policy the company has in

effect represented and insured that the defect was in the nature of an easement for roadway

purposes; that a complete failure of vesting was not covered by the exception and that the

company under its policy is therefore liable for such failure of title. It would appear from the

record that any plans which may have existed for use of the strip as a roadway have been

abandoned and that it is now free from any such restriction as may previously have existed.

We are unable to concur with the plaintiffs in their contention. Save for substitution of the

words “subject to a reservation of” for the word “less,” the exception is phrased in the same

language as the deed to which it refers. Whatever the significance of that language may be, it

remains the same whether expressed in deed or in insurance policy. The company's choice of

the word “reservation” as a denomination of the defect is not in itself determinative. In the

article by Bigelow and Madden on Exception and Reservation of Easements, 38 Harvard Law

Review, 180, 181, it is said: “Grantors before the time of Coke had used the word ‘reserve'

when the plain intent was to take out of the operation of the conveyance some part of the

property which would otherwise have fallen within the description used in the conveyance.

Here the subject-matter was, of course, proper for an exception, and the strictly accurate

words would have been, according to Coke, ‘exceptis, salvo, �� =�A��I�� =�� *��


praeter, and the like.' But in the case of such a misuse of the word ‘reserve,' no harm is done,

since no legal problem is presented except a problem of interpretation, or of determining

intent, and the intent is usually quite plain. Accordingly the courts have interpreted the word

‘reserve' to mean ‘except,' when the subject-matter to which the word is directed is the proper

subject-matter of an exception.” In Brown v. Connecticut Fire Ins. Co., 52 Okla. 392, 153 P.

173, it is held that although the meaning of challenged words used by an insurer in a policy

could have been better or more accurately expressed, this is not ground for disregarding the

plain import of appropriate language.

It may be noted that the “reservation” as expressed in Schedule B was not of an easement,

dedication, use or right of way; it was of the “strip of land” itself. Furthermore it was “as

reserved” in a specified public document. In our view the proper interpretation of the

expressed exception is that it purported to be only a paraphrase for purposes of identity of the

defect to which it expressly referred; that it was not intended to constitute a representation or

a binding expression or opinion as to the legal nature or extent of that defect. Certainly it

could not be said reasonably to justify one, without inquiring further, in accepting or relying

upon it as a clear and binding representation that the defect amounted only to an easement or

like encumbrance.

Reversed and remanded with instructions that judgment be rendered in favor of the

defendant. Costs to appellant.


____________

��71 Nev. 248, 248 (1955) Basic Refractories v. Bright��

BASIC REFRACTORIES, INC., a Corporation, Appellant, v. WILLIAM C. BRIGHT and

WILLIAM C. BRIGHT, JR., Co-Partners Doing Business Under the Fictitious Name and

Style of William C. Bright and Son; HAROLD W. GOODWIN, Doing Business Under the

Fictitious Name and Style of Nevada Paint and Floor Service; and ENTERPRISE ELECTRIC

CO., INC., a Corporation; H. R. CURL; READY-MIX CONCRETE COMPANY, a

Corporation; SAVIERS ELECTRICAL PRODUCTS INC., a Corporation;

PETERSON-MCCASLIN LUMBER COMPANY, a Corporation; JACQUES MORVAY,

Respondents.

No. 3875

July 29, 1955. 286 P.2d 747.

Motion and supplementary motion to dismiss appeal from Fifth Judicial District Court,

Nye County, Wm. D. Hatton, Judge.

The Supreme Court, Grant L. Bowen, District Judge, held, inter alia, that where trial court

in mechanics' lien case rendered judgment recognizing that contractee had right to recover

from contractor, and that contractor could recover from subcontractor and subcontractor's

surety, and thereafter rendered judgment against contractee, contractee's action in seeking

judgment against contractor was not such unconditional, voluntary and absolute acquiescence

in judgment as to waive contractee's right to appeal.

Motions denied.

Sidney W. Robinson and Vargas, Dillon & Bartlett, all of Reno, for Appellant.

Stewart and Horton, of Reno, for Respondents William C. Bright, William C. Bright, Jr.,

Harold W. Goodwin, and Enterprise Electric Co., Inc., a Corporation.

Goldwater, Taber & Hill, of Reno, for Respondent H. R. Curl.


Springmeyer & Thompson, of Reno, for Respondent Ready-Mix Concrete Company, a

Corporation.

John S. Halley, of Reno, for Respondent Saviers Electrical Products Inc., a Corporation.

Wilson & Brown, of Reno, for Respondent Peterson-McCaslin Lumber Company, a

Corporation.

Lohse & Fry, of Reno, for Respondent Jacques Morvay.

1. Appeal And Error. A party who voluntarily acquiesces in, ratifies, or recognizes validity of a judgment, order or decree

against him, or otherwise takes a position which is inconsistent with right to appeal therefrom, thereby

impliedly waives, or is estopped to assert, his right to have such decision reviewed, but his conduct must be

such as clearly and unmistakably shows more than mere admission of correctness of decision.

2. Appeal And Error. Where trial court in mechanics' lien case rendered judgment recognizing that contractee had right to

recover from contractor, and that contractor could recover from subcontractor and subcontractor's surety,

and thereafter rendered judgment against contractee alone, contractee's action in seeking judgment against

contractor was not such unconditional, voluntary and absolute acquiescence in judgment as to waive

contractee's right to appeal. Rules of Civil Procedure, rule 54(b).

3. Appeal And Error. In absence of a showing of prejudice to appellee, appellant's failure to comply with rules requiring a

concise statement of points relied upon did not require dismissal. Rules of Civil Procedure, rule 75(a, d).

OPINION

By the Court, Bowen, District Judge:

Respondents have moved to dismiss the appeal of Basic Refractories, Inc. and in addition

thereto have filed a supplementary motion to dismiss that appeal. To understand the basis for

such original motion and the arguments in opposition thereto we deem it advisable to set

forth certain facts and procedural matters upon which the original motion is based.


On December 1, 1952, appellant, Basic Refractories, Inc., hereinafter referred to as

“Basic” leased certain real property located at Gabbs, Nevada, from the Reconstruction

Finance Corporation and the United States of America, both acting by and through the

Administrator of General Services, for a term of ten years. On May 1, 1953, The Standard

Slag Company, hereinafter referred to as “Standard” entered into a written agreement with

Basic by which agreement the parties mutually agreed to the use and operation of the leased

premises. Also it was agreed that Standard should erect not more than twenty multiple

four-unit residential dwellings, which upon completion were to become the property of Basic.

A provision was contained in the agreement that the property should “be free and clear of any

liens, claims or encumbrances whatsoever, except the lease.” John C. Long as the Long

Construction Company thereafter agreed with Standard to construct three four-unit dwellings

and likewise agreed to furnish a “contract bond” upon which the Globe Indemnity Company

was surety in the sum of $30,294.50, being one half of the contract price. Although Long

Construction Company was fully paid according to the terms of its contract with Standard it

failed to pay certain labor claims and claims for material. As a result, respondents Goodwin,

Bright and Enterprise Electric Company filed an action against Basic, Standard and the

United States of America to establish and foreclose their respective liens.

The United States of America was not served and did not appear in the action. Basic

thereafter filed its cross claim against Standard, which in turn filed its third party complaint

against Globe Indemnity Company. Globe Indemnity Company then cross-complained

against the Long Construction Company.

Trial of the action in which other lien claimants joined was upon an agreed stipulation of

facts.

Prior to giving a judgment and decree foreclosing respondents' mechanics liens on January

31, 1955, the trial court rendered an opinion on January 11, 1955, in ��9��A�� @��1��6��3��<


which the court recognized that Basic, Standard and Globe Indemnity Company had certain

successive claims and in that opinion it was stated as follows:

“As to the issues between Basic Refractories and Standard Slag, the former in its

cross-complaint against Standard Slag demands judgment against the latter for such amounts

as may be determined that Basic Refractories has been damaged, or for a decree requiring

Standard to perform specifically by clearing the liens. Basic and Standard have stipulated in

writing that the latter shall save Basic harmless from any judgment entered in favor of the lien

claimants, and that Standard may have twenty (20) days after judgment in which to answer to

the cross-complaint. Accordingly Standard will be allowed twenty (20) days after entering of

the Judgment of foreclosure in which to file and serve its answer.

“In the pleadings issues are raised between Standard Slag Company and Globe Indemnity

Company. Standard Slag in its third party complaint demands judgment against the Globe

Company for all sums to the extent of the written bond that may be adjudged against Standard

Slag. Globe in its answer sets up affirmative defenses, all of which have been denied by the

Court in the above determination relative to the validity of the lien claims. The Standard Slag

Company may apply for judgment as it may be advised.

“Globe Indemnity Company filed its third party complaint against John C. Long, upon

which the default of the defendant was duly entered. Globe Company likewise may apply for

judgment, as it may be advised.”

Notwithstanding the fact that the trial court recognized the existence of the other claims as

noted in its opinion, the trial court in accordance with the provisions of Rule 54(b) N.R.C.P.,

which permits multiple judgment, entered a final judgment against appellant only and made

the specific finding that there was no just reason for delay in entering the judgment against

Basic.

On February 14, 1955, appellant moved for summary ��@��/��! �!&'$�� "& ( �"" ��=��


judgment requiring Standard to either specifically perform its written agreement of May 1,

1953 and to satisfy or clear all liens, claims or encumbrances, or in lieu thereof demanded

judgment in the sum of $29,077.22, together with attorney's fees, interest and costs. This

motion was granted on February 17, 1955. Thereafter Standard moved for and obtained an

order for summary judgment against Globe Indemnity Company. Basic filed its notice of

appeal on March 2, 1955, and Standard filed its notice of appeal on March 22, 1955. A cross

appeal was filed by Standard on May 13, 1955 from that portion of the summary judgment

entered against Globe Indemnity Company on April 11, 1955. Appeals by Basic, Standard

and Globe Indemnity together with the cross appeal of Standard are now pending in this

court. A motion to consolidate these appeals has been filed but has not been heard.

We shall proceed to discuss the original motion to dismiss the appeal. It is the contention

of the respondents that appellant accepted the benefits of the judgment of January 31, 1955 by

moving for summary judgment against Standard and that it either impliedly waived, or is now

estopped to assert its right to have such judgment reviewed by this court.

Appellant concedes that one may not accept the benefits of a judgment and at the same

time appeal therefrom but asserts that such a rule applies to a single judgment situation in

which the rights of all parties before the court are adjudicated, and says that while the opinion

and decision of the trial court was final as to the various lien claimants and Basic, that

opinion nevertheless provided in effect for multiple judgment as among the several parties,

each of which was entitled to have a final judgment defining its rights without running the

risk of waiving the right to review and that the primary judgment set in motion a series of

proceedings for the establishment of secondary judgments, none of which could be said to

result from an acquiescence in the validity of the primary judgment.


[Headnote 1]

The general rule with respect to the waiver of the right of appeal has been adequately set

forth in 4 C.J.S. Appeal and Error, sec. 212, p. 396, to be as follows:

“A party who voluntarily acquiesces in, ratifies or recognizes the validity of a judgment,

order or decree against him, or otherwise takes a position which is inconsistent with the right

to appeal therefrom, thereby impliedly waives, or is estopped to assert, his right to have such

judgment, order, or decree reviewed by an appellate court; * * *. However, in order to be a

bar of the right of appeal on the ground of acquiescence, the judgment or decree must have

been rendered and entered, and the acts relied on, as a waiver or estoppel on such ground,

must be such as to clearly and unmistakably show an inconsistent course of conduct or an

unconditional, voluntary, and absolute acquiescence, with the intent, as has been held to ratify

or confirm the judgment as rendered and to acquiesce and abandon the right of appeal.

‘Acquiescence', as used in this connection implies consent and is not the same as an

‘admission' of the correctness of the judgment and in order to effect a waiver, there must

be some intent to enjoy a benefit from or base some interest on, the judgment appealed from.

* * *”

Accepting the above statement as a correct interpretation of the law of waiver of the right

to appeal the primary inquiry is whether the act of the appellant when it moved for summary

judgment against Standard was such as to clearly and unmistakably show an unconditional,

voluntary and absolute acquiescence with the intent to ratify the judgment and to waive its

right of appeal.

[Headnote 2]

The question presented herein is not the usual one as found in Hummel v. Roberts, 70

Nev. 225, 265 P.2d 219, Cunningham v. Cunningham, 60 Nev. 191, 192, 102 P.2d 94, 105

P.2d 398, or Gerbig v. Gerbig, 60 Nev. 292, 108 P.2d 317, where in each case there was a

single ��


judgment in which the appellant in fact accepted the fruits of the judgment and thereafter

appealed. Rather we are presented with a much more unique situation brought about by the

fact that while the trial court failed to adjudicate completely the entire matter and settle the

several controversies presented for its determination in one judgment, it nevertheless

suggested and in fact recognized appellant's right of action against Standard and in turn

Standard's right of action against Globe Indemnity Company. Under those circumstances each

party to the action was entitled to have a final judgment defining its rights upon the issues

presented without running the risk of waiving any of its rights to have all issues made the

subject of review and as we view it the actions of all the parties in securing their respective

judgments were predicated upon a desire to secure final judgments capable of review by this

court but not in recognition of the primary judgment rendered against Basic.

Respondents have asserted that appellant enforced the judgment when it moved for

summary judgment after the entry of the primary judgment. Such an assertion is not borne out

by the facts in this particular case and neglects to consider the multiple nature of the judgment

entered and the court's suggestion to the several parties as contained in the trial court's

opinion. Actually appellant has not sought to enforce the judgment but merely has sought to

secure to itself the rights set forth in the trial court's opinion.

Haskell v. Ross, 71 Okla. 46, 175 P. 204 and Fidelity and Deposit Co. v. Kepley, 66 Kan.

343, 71 P. 818, cited by respondents, both involve single judgment situations in which the

surety against whom a judgment had been obtained filed suit against the principal for the

amount of the judgment from which it had previously appealed, and are distinguishable from

our present multiple judgment situation in which a secondary judgment has been entered, not

as an affirmation of the primary judgment, but as a means to securing those rights afforded to

��=��


appellant under the operating contract and the trial court's opinion and decision.

We have noted that successive appeals have been filed in this court. If the present motion

were granted and the other appeals decided in favor of the appellants such a granting of the

present motion to dismiss could result in the enforcement of an invalid judgment against

appellant, the invalidity of which, as appellant says, would be established in connection with

the determination of the other appeals herein referred to.

Under all the circumstances, we firmly believe that the ends of justice would be better

served if this motion were denied to the end that the appeal may be heard on the merits.

Respondents' supplementary motion to dismiss the appeal is based upon three

propositions, first, that appellant failed to serve with its designation of the record on appeal a

concise statement of the points on which it intended to rely as required by Rule 75 (d)

N.R.C.P., (appellant not having designated the entire record); second, that appellant failed to

serve such statement of points within the ten-day period of time in which respondents could

serve and file a designation of additional portions of the record as provided by Rule 75(a)

N.R.C.P. even though respondents served appellant with a Demand for Statement of Points;

and third, that respondents have been prejudiced by appellant's failure to serve its statement

of points.

The present motion is based upon Rule 75(a) of the Nevada Rules of Civil Procedure,

which reads as follows:

“(a) Designation of Contents of Record on Appeal. Promptly after an appeal is taken, the

appellant shall serve upon the appellee and file with the district court a designation of the

portions of the record, proceedings, and evidence to be contained in the record on appeal,

unless the appellee has already served and filed a designation. Within 10 days after the

service and filing of such a designation, any other party to the appeal may ��


serve and file a designation of additional portions of the record, proceedings, and evidence to

be included. If the appellee files the original designation, the parties shall proceed under

subdivision (b) of this rule as if the appellee were the appellant.”

Rule 75(d) reads as follows:

“(d) Statement of Points. No assignment of errors is necessary. If the appellant does not

designate for inclusion the complete record and all the proceedings and evidence in the

action, he shall serve with his designation a concise statement of the points on which he

intends to rely on the appeal.”

[Headnote 3]

While there is no question that Rule 75(d) of the Nevada Rules of Civil Procedure is

designed to provide respondent with information of the points to be relied upon in order that

he may determine whether or not the matter designated for inclusion is sufficient to enable

him to answer the contentions of appellant and if it is not sufficient the respondent “may

serve and file a designation of additional portions of the record, proceedings and evidence to

be included,” nevertheless if the appellant fails to designate the entire record and fails to serve

the required statement of points upon which he intends to rely there still must be a showing

that the respondent has been prejudiced thereby. Keeley v. Mutual Life Insurance Co. of New

York, 7 Cir., 113 F.2d 633. A thorough review of the entire record before us clearly indicates

that respondents have not been prejudiced and accordingly the supplementary motion to

dismiss the appeal is likewise denied.


Merrill, C. J., being disqualified, the Governor designated Honorable Grant L. Bowen,

Judge of the Second Judicial District Court, to sit in his place.

____________

��71 Nev. 257, 257 (1955) Arrowhead Freight v. White��

ARROWHEAD FREIGHT LINES, LTD., a Corporation, and JACK E. PALSGROVE,

Appellants, v. JAMES WHITE, Respondent.

No. 3839

September 20, 1955. 287 P.2d 718.


Department No. 3.

Negligence action against trucking company and driver by consignee's employee who was

injured while assisting driver in unloading steel reinforcing rods from truck bed. Following

jury's verdict for defendants, plaintiff's motion for new trial was granted upon grounds of

insufficiency of evidence and that verdict was against law, and defendants appealed. The

Supreme Court, Merrill, C. J., held that there was not clear preponderance of evidence in

favor of verdict for defendants, and order granting new trial was proper exercise of discretion.

Judgment affirmed.

Morse, Graves & Compton, of Las Vegas, for Appellants.

Foley Brothers, of Las Vegas, for Respondent.

1. Appeal And Error. On appeal from order granting new trial upon grounds of insufficiency of evidence and that verdict was

against law, question is whether trial court abused its discretion in granting new trial, not whether appellate

court would have reversed jury's verdict as without evidentiary support, and appellate court must respect

not jury's verdict but trial court's judgment unless that judgment was clearly wrong.

2. New Trial. In negligence action against trucking company and driver by consignee's employee who was injured

while assisting driver in unloading steel reinforcing rods from truck bed, there was not clear preponderance

of evidence in favor of verdict for defendants. and order granting new trial was not abuse of discretion.

3. New Trial. In negligence action, denial of plaintiff's motion for directed ��=��


verdict on question of liability was not inconsistent with granting of plaintiff's motion for new trial.

4. New Trial; Trial. Verdict can be directed only where there is no substantial evidence to support recovery by party against

whom it is directed, but new trial may be granted notwithstanding existence of substantial evidence in favor

of verdict when that verdict, in judgment of court, is contrary to clear weight of evidence or results in

miscarriage of justice.

OPINION


This is an action for damages for negligence. White brought suit against Arrowhead

Freight Lines and its employee Palsgrove. After trial the jury's verdict was in favor of the

defendants. Upon White's motion a new trial was ordered by the trial court upon the grounds

of insufficiency of the evidence and that the verdict was against law. From that order for new

trial Arrowhead and Palsgrove have appealed.

[Headnote 1]

The law of Nevada regarding such an appeal is well digested in Nevada Rock & Sand

Company v. Grich, 59 Nev. 345, 365, 93 P.2d 513, 521. The question is not whether we, as

an appellate court, on the record before us would have reversed the jury's verdict as without

evidentiary support. The question, rather, is whether upon that record the trial court can be

said to have abused its discretion in granting new trial. As stated in Treadway v. Wilder, 9

Nev. 67, 70, “It must be borne in mind that the nisi prius courts in reviewing the verdict of

juries are not subject to the rules that govern appellate courts. They may weigh the evidence

and if they think injustice has been done grant a new trial where appellate courts should not

or could not interfere.” We must, then, respect not the jury's verdict but the trial court's

judgment (that the evidence clearly preponderates against the verdict or that it would result in

injustice) unless that judgment is clearly wrong.


With these rules of law in mind we turn to the facts of this case. The issue is as to allege

negligent conduct on the part of Palsgrove in the course of his employment. The trial court

was of the view that negligence had been established by a clear preponderance of the

evidence.

Appellant Arrowhead had been engaged to haul a truckload of reinforcing steel to a site in

Las Vegas where one Davey, as general contractor, was in charge of construction. With

Appellant Palsgrove as driver the load arrived at the site. It was during the course of the

unloading that the accident in question occurred.

The steel rods were loaded on a flat bed semitrailer in the form of bundles 30 to 40 feet in

length, several rods being wired together to form each bundle. The ordinary practice in

unloading such bundles of steel is to do so with a crane mounted on the bed of the trailer. A

crane had been ordered for this purpose by the general contractor, Davey, but failed to arrive.

It was then agreed between Davey and Palsgrove that the steel be unloaded by dragging the

bundles off the side of the trailer. For this purpose a pickup truck owned by Davey was used

to furnish the necessary power. From its rear a cable was attached to the center of each

bundle. As the pickup proceeded away at right angles to the trailer, the bundle was dragged

off the side.

It is recognized that an element of danger attaches to this method of unloading bundles of

this type. Due to the extremely flexible nature of the steel, it is essential that the cable be

precisely centered on the bundles so that they are squarely dragged from the trailer, both ends

leaving the bed simultaneously. Should a bundle be dragged off at an angle, the flexible

characteristics of the long steel rods would impart a whiplike action to the bundle, rendering

it impossible to control.

Five persons were engaged in the unloading process. Appellant Palsgrove stationed

himself on the bed of the trailer and assumed the responsibility of centering and attaching the

cable to each bundle as it was to be dragged ��


off. Davey, standing a few feet from the trailer, received Palsgrove's signal that the cable was

attached and, in turn, signaled the pickup to proceed. The other three persons were employees

of Davey. One operated the pickup. The function of the other two was to release the cable

from each bundle after it had been dragged from the trailer and then hand the cable end back

to Palsgrove. Respondent was one of the two so engaged.

The testimony is in some conflict as to the precise manner in which the injury occurred.

For the purposes of this opinion we accept Palsgrove's version. According to his testimony, at

the time of the accident but two bundles remained to be unloaded. It was found that the rods

of one had become so interlaced with the rods of the other that the cable could not be centered

on either bundle until they had first been separated. Palsgrove attached the cable to the end of

one bundle. It was dragged from the trailer at an angle with consequent whiplike action, the

loose end striking and injuring respondent. According to Palsgrove, before attempting to

unload the bundle he had, within earshot of the others, explained the problem to Davey and

they had agreed that with the cable attached to the end of the bundle the pickup was to

proceed no further than necessary to separate the bundles in the bed of the trailer. The cable

was then to be centered on each bundle before it was dragged off. According to Palsgrove the

dragging off of the bundle must have occurred through the misunderstanding of the pickup

driver.

All three employees of the contractor, including respondent and the driver of the pickup,

testified that they heard no such conversation, had no such understanding themselves,

received no warning or special instructions from Palsgrove, had no knowledge that a change

in procedure was necessary or would take place, or that they should take any steps to protect

themselves other than those they had regularly been taking. Their testimony appears to

conflict directly with that of Palsgrove as to the manner in which he himself had acted ��*��


and as to the existence, among those participating in the unloading, of any knowledge of the

circumstances or general understanding of the procedure to be followed.

[Headnote 2]

Upon the record we cannot say that the trial court was clearly wrong in its judgment or that

there was a clear preponderance of evidence in favor of the verdict. The court's order granting

new trial must, then, be held a proper exercise of discretion. Nevada Rock & Sand Co. v.

Grich, supra.

[Headnotes 3, 4]

Appellants contend that the trial court was guilty of inconsistent action in granting a new

trial since before the matter went to the jury the court had denied the plaintiff's motion for a

directed verdict upon the question of liability. These rulings, however, are not inconsistent

since the governing principles and considerations are different. A verdict can be directed only

when there is no substantial evidence to support a recovery by the party against whom it is

directed. A new trial may be granted notwithstanding the existence of substantial evidence in

favor of the verdict when that verdict in the judgment of the court is contrary to the clear

weight of the evidence or results in a miscarriage of justice. Hawkins v. Sims, 4 Cir., 137

Fed.2d 66.



____________

��71 Nev. 262, 262 (1955) Paine v. Paine��

AUGUSTUS GIBSON PAINE, Appellant, v.

CYNTHIA HOWE PAINE, Respondent.

No. 3856

September 22, 1955. 287 P.2d 716.


Department No. 3.

Proceedings by divorced wife to modify divorce decree to provide increased child support.

The Second Judicial District Court, Washoe County, Harold O. Taber, Judge, granted a

modification. The husband appealed. The Supreme Court, Eather, J., held that under the

circumstances, the order of modification was not a proper exercise of discretion.

(Rehearing denied November 18, 1955.)

Order set aside and motion for modification denied.

William J. Cashill, and Summerfield & Heward, of Reno, for Appellant.

Woodburn, Forman, Wedge, Blakey & Thompson, of Reno, and Jackson, Nash, Brophy,

Barringer & Brooks, of New York City, New York, for Respondent.

1. Divorce. The purpose of statute authorizing court, during minority of children of divorced parents, to modify or

vacate orders for custody, care, education, maintenance and support of children as may seem just and

proper is to permit court to protect welfare and interests of children, and statute permits court to exercise its

discretion only when the matter before the court concerns the interests or welfare of children. N.C.L.

1943-1949 Supp., sec. 9462.

2. Divorce. Where divorce decree confirmed agreement requiring husband to bear certain expenses of children and

requiring all other expenses of children to be paid by parent with whom children were living and where

wife was fully able to provide and was providing suitably for children's support, the matter of modification

of decree to require husband to provide increased support did not concern interests or welfare of children

and hence order so modifying the decree was not a proper exercise of discretion. N.C.L. 1943-1949 Supp.,

sec. 9462.

��71 Nev. 262, 263 (1955) Paine v. Paine��

OPINION


This is an appeal from order of the trial court granting a motion for modification of a

divorce decree to provide increased support of the minor children of the parties.

The question is whether in the light of an agreement between the parties the court's order

of modification was a proper exercise of discretion. In our view it was not.

The parties were divorced in this state in October, 1952. The decree provided that an

agreement between the parties “settling property rights of the parties concerning the custody,

maintenance and support of the minor children, Abby Deering Paine and Alix Ellis Paine, and

the maintenance and support of the plaintiff [wife]” be approved and confirmed; “provided,

however, that said agreement is not merged herein but survives this decree and continues in

full force and effect.”

The agreement provides that the husband shall bear the expense for both children of

school, boarding school, college, camp, and special educational work such as music and

dancing and also shall provide “clothing and personal expense allowance” for each child,

increasing with the age of the child, from $500 to $1,500 a year; that the parties shall each

pay one-half of the expense of the children in traveling between the parents. The agreement

then provides, “as to all other expenses of maintenance and support the husband and wife,

respectively, shall pay all expenses with respect to the child or children then residing with

him or her as the case may be.”

Pursuant to the terms of the agreement the husband was granted custody of Abby and the

wife was granted custody of Alix. In October, 1953, the wife secured an order from the trial

court modifying the decree to grant her custody of both children. In January, 1954, she ��

��71 Nev. 262, 264 (1955) Paine v. Paine��

moved the court for a further modification requiring substantial additional contribution by the

husband toward the support of the children. This motion was granted by the trial court on

September 22, 1954 and it is from this order that the present appeal is taken.

The agreement executed in the State of New York received the most careful preparation.

Both parties were represented by counsel and differences were resolved through the aid of an

independent arbitrator who gave the most careful study to the financial circumstances of both

parties. Both parties are independently wealthy. Beyond any question of doubt each is fully

able to provide suitably for the support of the children. It has never been suggested that under

the circumstances existing at the time of the divorce the provisions of the agreement were in

any respect unfair.

The jurisdiction of the court to act in such matters as this is defined in sec. 9462,

N.C.L.1943-1949 Supp., which provides: “* * * the court may, during the pendency of the

action, or at the final hearing or at any time thereafter during the minority of any of the

children of the marriage, make such order for the custody, care, education, maintenance, and

support of such minor children as may seem necessary or proper, and may at any time modify

or vacate the same.”

[Headnote 1]

The purpose of sec. 9462 is to permit the court to protect the welfare and interest of minor

children. Elsman v. Elsman, 54 Nev. 20, 31, 2 P.2d 139, 3 P.2d 1071, 10 P.2d 963.

The true effect of the order considering the financial circumstances of the wife, is not to

provide the children with support more suitable than they otherwise could expect to receive.

It is conceded that the wife is amply able to provide suitable support and is now providing it.

The effect of the order is to relieve the wife of her obligation under the contract in the light of

circumstances indicating that such relief might be equitable. The order, ��

��71 Nev. 262, 265 (1955) Paine v. Paine��

then, despite its outward appearance, does not concern itself with the needs or interests of the

children, but with the rights and obligations of the parties as between themselves.

While, under the statute, the court has discretion to act when the matter before it concerns

children, their interests or welfare, there is nothing upon which discretion may properly

operate when such subjects are in no way involved. To proceed to an exercise of discretion in

the absence of a basis for such exercise is error. (Such error, it may be noted, may well run to

the court's jurisdiction to act at all upon the problem at hand, but since this matter is before us

on direct attack a determination in this respect is unnecessary.)

[Headnote 2]

Upon the undisputed facts of this appeal there can be only one conclusion: interests and

welfare of minor children are not in any way involved in this proceeding, and can in no

respect be affected by the court's decision. The entire proceeding is an attempt by the wife to

avoid a binding contractual obligation. LaRue v. Kempf, 171 S.W. 588, 186 Mo.App. 57;

Wilson v. Wilson, 271 Ky. 631, 112 S.W. 2d 980; Parkhurst v. Parkhurst, 118 Cal. 18, 50 P.

9; Farrah v. Farrah, 196 Misc. 460, 92 N.Y.S. 2d 187; Stewart v. Stewart, 130 Cal.App. 2d

186, 278 P.2d 441; Molema v. Molema, 103 Cal.App. 79, 283 P. 956. The trial court, then,

was in error in proceeding to an exercise of discretion in this matter.

The order must be set aside and the motion for modification denied. Each party may bear

his own costs upon the appeal.


____________

��71 Nev. 266, 266 (1955) Rickard v. City of Reno��

ADELE OLGA RICKARD, Appellant, v. CITY OF RENO, a Municipal Corporation, and

LERNER SHOPS OF NEVADA, INC. and WILLIAM E. LYNCH, NELLIE J. LYNCH,

DONALD V. LYNCH dba LYNCH'S BAZAAR, Respondents.

No. 3859

September 30, 1955. 288 P.2d 209.

Appeal from a judgment of the Second Judicial District Court, Washoe County; Harold O.

Taber, Judge, Department No. 3.

Action against city and occupants of abutting premises for injuries sustained in slip and

fall on sidewalk. The action was dismissed and plaintiff appealed. The Supreme Court, Badt,

J., held that evidence whether slight depression in sidewalk had been proximate cause of

accident was insufficient to take case to jury.

(Rehearing denied November 18, 1955.)

Affirmed.

Nada Novakovich, of Reno, for Appellant.

Vargas, Dillon & Bartlett, of Reno, for Respondent City of Reno.

Woodburn, Forman and Woodburn and Gordon R. Thompson, of Reno, for Respondents

Lerner Shops and Lynch.

1. Municipal Corporations. In action for slip and fall on sidewalk, plaintiff must show not only a duty owing from defendant to

plaintiff, a breach of that duty, and that plaintiff was injured and damaged, but also that defendant's

negligence or breach of duty was proximate cause of injury or damage.

2. Municipal Corporations. In action for damages for slip and fall on sidewalk, evidence whether slight depression in sidewalk had

been proximate cause of accident was insufficient to take case to jury. Rules of Civil Procedure, Rule

41(b).


OPINION


Appellant, Adele Olga Rickard, plaintiff below, sued the City of Reno and the other

respondents for damages for personal injuries resulting from a fall on the sidewalk in the City

of Reno. At the close of plaintiff's case the defendant city moved for a dismissal on the

ground that plaintiff had failed to prove a sufficient case for the court or jury. Rule 41(b)

N.R.C.P. The court granted the motion and dismissed the jury, holding that plaintiff was

contributorily negligent as a matter of law. Appellant contends that the minds of reasonable

men could well differ as to her contributory negligence and that it was error to take from the

jury the determination of such issue of fact. Respondents, relying upon the rule that if the

judgment was correct on any ground, it should be affirmed even if the ground stated by the

court is insufficient (Richards v. Vermilyea, 42 Nev. 294, 175 P. 188, 180 P. 121), contend

(1) that plaintiff failed to show any negligence in the defendants; (2) that any defect in the

sidewalk, shown by the evidence, was such a minor defect as to be trivial; (3) that the

defendant was contributorily negligent as a matter of law; and (4) that even assuming

defendants' negligence in the maintenance of the sidewalk and lack of contributory negligence

on the part of the plaintiff, there is an entire lack of showing that plaintiff's fall was caused by

the condition of the sidewalk. All of these contentions were briefed and orally argued at great

length by the respective parties. Our conclusion that there was an entire lack of proof that the

condition of the sidewalk caused the plaintiff's fall makes it unnecessary for us to consider the

other contentions, interesting and important as they are. Under the facts surrounding the

plaintiff's fall and the lack of proof as to what caused it, we simply do not reach the other

phases of the case.


The plaintiff, a woman of the age of sixty-four years, enjoying good health and good

vision, was walking northward on the west side of Virginia Street, a busy street in the

business district of Reno, on the east side of the sidewalk. She was walking at a moderate

pace and wearing common-sense walking shoes. The sidewalk was thirteen feet ten inches

from the building line to the curb and she was walking approximately four feet in from the

curb. The time was about 10:30 in the morning, the day was clear, the temperature mild.

People were approaching her from the north, but no one was directly in front of her as she

proceeded northward. She fell at a point where there was upon the sidewalk what is referred

to throughout the testimony as “a depression” or “a slight depression.” She and her witnesses

had passed over the spot many times before. There is no indication that any other person had

ever fallen there. Her theory is that her fall was caused by her stepping into this depression,

combined with the circumstance that a recent street flushing operation resulted in a deposit of

material within the depression, both of which circumstances, or either of them, resulting from

the defendants' negligence, caused her to fall. Before analyzing the proof or lack of proof as

to what caused the plaintiff's fall, it becomes necessary to describe the condition of the

sidewalk.

As to this there is virtually no conflict in the testimony of the witnesses. The depression

was generally circular in form, possibly four or five to six feet in diameter. From the

watermarks or water stains on the cement plaintiff thought it was about six feet in diameter

and sloping to a maximum depth of one inch approximately in the center. Although in answer

to a question as to whether the depression was abrupt or gradual, she answered, “Well, it is

really abrupt,” her further description and the description given by her witnesses indicate

rather conclusively that the slope from the perimeter to the one inch depth in the center was a

gradual ��


one. When describing the point just within the circumference of the depression where

plaintiff put her foot when she fell, with reference to the extent of the slope or difference in

elevation, plaintiff's witness Gulling was asked: “Well, do you think it was a quarter of an

inch lower, or half an inch, or what?” He replied, “No, I wouldn't say it was a quarter of an

inch, no * * * might be less than that.” Thus the incline was one inch in three feet. A

yardstick raised one inch at one end, indicates the slope. There was also a gradual slope of the

sidewalk from the property line to the curb. There remained three or four feet of level

sidewalk between the westerly extremity of the depression and the property line. Where the

easterly limit of the depression approached the curb, the curb had been lowered till it was

almost flush with the sidewalk. A few feet to the north and south of this point, however, the

curb was four or five inches high. Earlier street flushing operations that day had resulted in

flushing the water from the gutter into the depression. As to the deposit left by the flushing

operation, plaintiff testified: “I saw a depression and I saw moisture. * * * I saw a dirty

looking sidewalk. It's difficult to explain. It just didn't look clean, but it didn't look dangerous,

either. * * * I noticed water—where water had been. However, there wasn't any water there at

the time. The drainage was good. The sidewalk was dirty, this portion of it, silt, black slime

or dark.” On cross examination when her attention was called to her description of “black

slime or dark,” she replied: “Just a dirty looking sidewalk there, nothing that looked

dangerous. I noticed a little bit of it as I approached.” On redirect in answer to the question,

“How did you know the sidewalk was dirty?”, she replied, “When I got up from the fall I had

a black substance on my coat and I also had something on the inside of my right shoe.” When

asked, “Did you see any grease or silt right there when you fell?”, she replied, “I wouldn't

know what was on there �� 6�� 6��


any more than it looked like, as I say, I took and flirt a mop. It has that damp look. Not wet,

runny wet, but just moist, but nothing to fear”; that sand or dirt on the sidewalk was not of

any great degree; that “if there was anything there it was adhering so closely” it did not look

dangerous. Plaintiff's witness Gulling said: “The circumference of this depression looked

scummy and greasy. * * * like the greasy ring in a bathtub.” Her witness Sinelio noticed “a

very slight dampness.” Her witness Browne “thought it was more black and slimy. I'd say it

was muddy, black mud.”

We turn then to a consideration of what happened as plaintiff approached this depression

and fell. The plaintiff herself, one witness who was walking behind her and one witness who

was approaching her from the north are the only three persons who testified as to what

happened. Plaintiff testified: “I fell forward. * * * My feet went out from under me and I fell

flat on my nose. I had a sensation of shock.” On cross examination she affirmed the testimony

given in her deposition taken by defendant, when she was asked: “Q. Well, do you know what

happened? A. No, sir, it just happened like that. I was on my feet and just walking along at a

conservative pace, and suddenly I was—I hit the sidewalk. * * * I have noticed, of course,

that the sidewalk was sloped there, but then you are accustomed to walking on sidewalks that

have a slope, so it wouldn't impress me as being anything out of the ordinary.”

Plaintiff's witness Gulling, who was walking directly behind the plaintiff, was asked to tell

the court and jury what he saw: “The first thing I saw was Mrs. Rickard go down. * * * Saw

Mrs. Rickard fall. * * * She fell in the direction she was going. * * * She fell quickly. * * * I

wouldn't say that I saw either of Mrs. Rickard's feet actually slip.” Plaintiff's witness Sinelio

was walking south toward the plaintiff as the latter was walking north, and stated: “Well, this

lady was approaching me, and all of the sudden she fell to ��


the sidewalk. * * * I don't know just how she fell. Her feet seemed to have gone out from

under her.”

We therefore have the testimony that plaintiff fell. She fell at a point about at the

beginning of the slope into the slight depression. She fell forward, and the theory is presented

upon this appeal that her foot or feet slipped backward. No testimony, demonstration or

observation was to the effect that any part of the slight incline into the depression was

actually slippery. The richness of the English language is evidenced not only by the

descriptive words used by plaintiff and her several witnesses but by their expressive

similes—moisture, dirty looking, like silt, black slime or dark, like that resulting from flirting

a mop, not runny wet but damp, scummy and greasy, like the greasy ring in a bathtub, more

black and slimy, muddy, black mud. These witnesses were all intellectually equipped to

determine and to testify that the sidewalk was slippery. None of them did so. Nor did plaintiff

or any of her witnesses explain how the slight slope downward—one inch to three

feet—covered by this residue left by the receding water, caused her feet to slip backward so

that she fell forward.

In answer to the contention of respondents that it would have been impossible from the

testimony to determine what caused her to fall, or, more precisely, that the sidewalk defect, if

one existed, was the proximate cause of her fall, plaintiff relies upon the rule that not only

must the testimony be read in the light most advantageous to her and all conflicts resolved in

her favor, but that she be also given the benefit of all inferences which the jury might

reasonably have drawn from the proved facts.

Section 9047.02, N.C.L.1931-1941 Supp., reads: “An inference is a deduction which the

reason of the jury makes from the facts proved, without an express direction of law to that

effect.” Assuming then an unsafe sidewalk condition and plaintiff's forward fall at the �� =��*��


place of such unsafe condition as proved facts, it is appellant's contention that the jury would

have the right to draw the inference that such unsafe condition was the proximate cause of her

fall.

In City of Paducah v. McManus, 256 Ky. 405, 76 S.W. 2d 254, 256, the court said: “In

City of Dayton v. Fox, 254 Ky. 51, 70 S.W.2d 961, 963, we said: ‘A dangerous or unsafe

condition will not be presumed from the accident alone and the mere fact that a pedestrian

slipped and fell upon the sidewalk is insufficient to warrant a recovery, unless it is shown that

the condition of the walk at the place was necessarily dangerous or unsafe for pedestrians

when in the exercise of ordinary care for their own safety, and that the unsafe condition was

the proximate cause of the injury.'“ (Italics by the court.) The same language was quoted in

City of Louisville v. Moore, 267 Ky. 536, 102 S.W.2d 989, and is undoubtedly a correct

statement of the law. In both of the cases cited the facts presented a stronger case for an

inference than here.

[Headnote 1]

This court has likewise pronounced the rule that in actions of this kind plaintiff must show

not only a duty owing from the defendant to the plaintiff, a breach of that duty, and that

plaintiff was injured and damaged, but also that defendant's negligence or breach of duty was

the proximate cause of the injury or damage. City of Las Vegas v. Schultz, 59 Nev. 1, 83 P.2d

1040.

[Headnote 2]

It is undoubtedly true that an inference of proximate cause may be drawn from the proved

facts. Here there is no proof that plaintiff's feet slipped, nor indeed that the sidewalk was

slippery at the point where she fell. And if an inference could possibly be drawn from the

testimony that the point where plaintiff fell was actually slippery, 1 the jury would then have

had to draw the ��:��;��

____________________

1

But note the possibility of the contrary inference—that the deposit had a retarding or “non-skid effect.”


further inference (based not upon a proved fact but upon the foregoing inference) that upon

the forward sloping pavement her feet slipped, not forward but backward. We do not think

that such an inference, contrary to the normal experiences of men, to say nothing of the laws

of physics, could have reasonably been drawn. Other inferences might also have been

indulged as to the possible cause of the fall—a sudden giving way of the knees, one foot

striking the other, anything that might have caused one or both feet suddenly to stop, with the

natural and normal result of a pitching forward of the body. From any viewpoint we are of the

opinion that, from the facts proved, the jury could not have drawn a reasonable inference that

the defect relied upon was the proximate cause of appellant's fall. We are therefore of the

opinion that there was no error in taking the case from the jury.

Defendants, Lerner and Lynch, as alleged owners, lessees or occupants of the premises

abutting the sidewalk in question, have presented additional argument and authority in

support of sustaining the judgment as to them. Under the conclusion reached above, it

becomes unnecessary for us to consider such contentions.



____________

��71 Nev. 274, 274 (1955) Lathrop v. Smith��

JACK LELAND LATHROP and ASBURY TRANSPORTATION COMPANY, a California

Corporation, Appellants, v. PATRICK JAMES SMITH, Respondent.

No. 3837

October 3, 1955. 288 P.2d 212.

Appeal from a judgment of the Eighth Judicial District Court, Clark County; Frank

McNamee, Judge, Department No. 1.

Action for damages for injuries sustained by plaintiff as a result of defendants' negligence.

From an adverse judgment the defendants appealed. The Supreme Court, Eather, J., held that

language of instruction to jury that was not objected to in trial court, in a manner distinctly

showing the matter which was objected to and the grounds of the objection, could not be

asserted by defendant as error on appeal.

Affirmed.

Morse, Graves & Compton, of Las Vegas, for Appellants.

Foley & Foley, of Las Vegas, and Vargas, Dillon & Bartlett, of Reno, for Respondent.

Appeal And Error.

Language of instruction to jury that was not objected to in the trial court, in a manner distinctly

showing the matter which was objected to and the grounds of the objection could not be asserted as

error on appeal. Rules of Civil Procedure, Rule 51.

OPINION


Appeal from order and judgment and from order denying new trial.

This is an action brought by respondent for damages resulting from the negligence of

appellant Lathrop ��F��3��


while acting in the employ of the appellant Asbury Transportation Company.

Medical testimony established that following the accident respondent was suffering from

injuries to his shoulder, elbow, and back. The back condition might have been attributed to an

earlier injury or to an aggravation of that injury by the accident here involved.

Appellants' principal assignment of error relates to the judge's instruction to the jury with

reference to aggravation. That instruction was as follows: “If, under the Court's instructions,

you find the plaintiff entitled to a verdict, plaintiff is entitled to recover only such damages

which resulted from the negligence of the defendants, and it would then be immaterial

whether this accident proximately caused new injuries to the plaintiff or whether this accident

was the cause of aggravating a pre-existing disability then suffered by the plaintiff.”

Appellants point out that the instruction, in referring to injuries proper for consideration,

specifically limits new injuries to those proximately caused by the accident, and does not so

limit aggravation of pre-existing disability. Appellants contend that the instruction thus

invited the jury to render a verdict for aggravation, whether such was proximately caused by

the accident or not. Respondent contends that any possible error or ambiguity which might

exist by reason of the language of the instruction is cured by other instructions stating the

necessary causal relationship between act of negligence and injury. This point, however, we

need not decide.

While appellants did formally and generally except to the giving of this instruction, it is

clear from the record that their particular objection to the language used was never stated to

the court. It is obvious that the asserted error is one which could easily have been cured had it

been directed to the attention of the trial court and opposing counsel. Certainly none could

have the ��


slightest objection to the change in language for which appellants now contend. This is just

such a case as must have been contemplated by Rule 51 N.R.C.P. which states in part: “No

party may assign as error the giving or the failure to give an instruction unless he objects

thereto before the jury retires to consider its verdict, stating distinctly the matter to which he

objects and the grounds of his objection.”

If error was committed in the giving of the instruction, then, it may not be asserted upon

this appeal.



____________

��71 Nev. 276, 276 (1955) Ex Parte Ralls��

No. 3822

In the Matter of the Application of Edward Ralls for a Writ of Habeas Corpus. STATE

OF NEVADA, Appellant, v. EDWARD RALLS, Respondent.

No. 3823

In the Matter of the Application of James Paul McKenna for a Writ of Habeas Corpus.

STATE OF NEVADA, Appellant, v. JAMES PAUL McKENNA, Respondent.

No. 3824

In the Matter of the Application of Joseph Charles McGuire for a Writ of Habeas

Corpus. STATE OF NEVADA, Appellant, v. JOSEPH CHARLES McGUIRE,

Respondent.

Nos. 3822, 3823, 3824

October 10, 1955. 288 P.2d 450.

Habeas corpus proceedings instituted by three criminal defendants charged with offense of

mayhem. The Eighth Judicial District Court, Clark County, Ryland G. Taylor, Judge,

Department No. 3, entered order discharging defendants upon record made at preliminary

hearing for reason that insufficient cause was shown ��


to hold them for trial, and state appealed. The Supreme Court, Merrill, C. J., held that to

constitute offense of mayhem it is necessary to establish malice and evidence showing fist

fight between the three defendants and complaining witness who lost an eye therein, was

insufficient to support charge of mayhem.

In each case, judgment affirmed.

George Dickerson, District Attorney, Clark County; VeNoy Christoffersen, Deputy District

Attorney, for Appellant State of Nevada.

Bonner & Rittenhouse, of Las Vegas, for Respondent Ralls.

Jones, Wiener & Jones, of Las Vegas, for Respondent McKenna.

George E. Franklin, Jr., of Las Vegas, for Respondent McGuire.

1. Mayhem. Under statute defining offense of mayhem, malice is an essential element of the crime. N.C.L. 1929, sec.

10098.

2. Mayhem. To support charge of mayhem it is not necessary that a specific intent to maim be proved but such an

intent may be inferred or presumed if disfigurement was reasonably to be apprehended as a natural and

probable consequence of the act. N.C.L. 1929. sec. 10098.

3. Criminal Law. Evidence adduced at preliminary hearing to effect that defendants had engaged in a fist fight with

complaining witness who lost an eye therein, was insufficient to support charge of mayhem, in that specific

intent to maim could not be inferred or presumed from mere fact that defendants wrongfully intended to

administer a beating. N.C.L. 1929, sec. 10098.

OPINION


These cases, consolidated for review by this court, are appeals taken by the State from

orders of the trial court ��


discharging three criminal defendants upon habeas corpus. Following preliminary hearing the

writs were secured. Upon the record made at the preliminary hearing the discharge was

ordered for the reason that insufficient cause was shown to hold for trial. The question upon

appeal is whether, upon the record, the defendants may properly be held for the crime of

mayhem. More specifically the question is whether an intent to commit that crime might be

found under the circumstances. The trial court ruled that the State had failed to establish facts

from which an intent might be found or inferred. In our view this ruling was proper and the

court's orders should be affirmed.

As a result of a fist fight in which all three defendants participated, their opponent suffered

the loss of an eye. The fight was provoked by the defendants and with no justification

whatsoever. The State does not contend that the defendants entertained an actual or specific

intent to maim. The question is whether the necessary criminal intent may be imputed by

reason of the unlawful assault upon the injured person.

In 2 Burdick, Law of Crime, 71, sec. 401, the author after reviewing statements by the

early common law writers with reference to mayhem states, “In view of the foregoing

statements it is evident that the common law elements of mayhem are (1) depriving; (2)

anyone; (3) maliciously; (4) of a corporal member * * *.”

[Headnote 1]

The State first contends, under our statute defining mayhem, that malice or specific

criminal intent is not necessary; that nothing more than a general criminal intent is needed;

that such an intent is supplied by the very fact of the unlawful assault. The statute, sec. 10098,

N.C.L.1929, reads as follows: “Mayhem consists of unlawfully depriving a human being of a

member of his or her body, or disfiguring or rendering it useless. If any person shall cut out or

disable the tongue, put out an eye, slit the nose, ear, or lip, or disable any limb or member of

another, or shall voluntarily, or of purpose, �� -


put out an eye or eyes, every such person shall be guilty of mayhem.” The State contends that

since reference is twice made to the putting out of an eye, the crime may result whether the

maiming was voluntary and purposeful or whether the act from which it resulted was merely

unlawful.

Even should we accept the State's position as to the significance of the word “unlawful”

the statutory definition remains far from clear. Resolving ambiguities in favor of the accused,

we view the statute as not sufficiently clear to justify us in regarding it as an express

departure from the common law or extension of the common-law crime so far as concerns

intent. Malice, then, remains as an essential element of the crime of mayhem in this state.

Fortifying us in this position is the statement in 2 Burdick, Law of Crime, supra, 75, sec. 405,

“Even if a statute contains the word ‘unlawful', as some do in describing the act, malice is

still a requisite.”

[Headnote 2]

It does not follow that a specific intent to maim must be proved. It may be inferred or

presumed. To accomplish such an end, however, it is necessary that the disfigurement was

reasonably to be apprehended as the natural and probable consequence of the act. See 36 Am.

Jur. 2, Mayhem, sec. 3; Anns. 65 Am.St.Rep. 774; L.R.A. 1916E 494.

[Headnote 3]

The State contends that such was the case here. We must disagree. No weapon was used.

There is no indication that any blow struck was calculated to result in gouging or in any

respect was other than a typical blow struck with a fist. Nor did the assault, outrageous

though it was in its complete lack of provocation or justification, amount to such a brutal and

relentless beating that maiming might be said to have been the reasonable, probable, or

intended consequence. Cf. Shackelford v. Commonwealth, 183 Va. 423, 32 S.E.2d 682. The

whole �� *��


affair was over so quickly that descriptive testimony, other than as to the first blow struck, is

extremely vague and uncertain. Upon the facts it may be said that these defendants

wrongfully intended to administer a beating. No further intent can or could under this state of

facts be inferred. Such an intent is not sufficient to support the charge of mayhem.

Affirmed in each case.


____________

��71 Nev. 280, 280 (1955) Corn v. French��

RUTH CORN, Appellant, v. JAMES B. FRENCH,

Respondent.

No. 3809

October 27, 1955. 289 P.2d 173.


Department No. 1.

Patient brought malpractice action against physician for damages for removal of patient's

breast allegedly without her consent and without appropriate diagnosis to ascertain presence

of cancer. From an order granting physician's motion for involuntary dismissal, patient

appealed. The Supreme Court, Badt, J., held that issue whether physician performed

operation without patient's consent and contrary to her instructions was for jury and that issue

whether physician had been negligent in failing to make a biopsy or obtain a pathological

examination of tissue from patient's breast before proceeding with operation was for jury,

though there was no expert testimony that physician was negligent in failing to make a biopsy

or obtain a pathological examination before proceeding with operation.


Emilie N. Wanderer, of Las Vegas, for Appellant.

Morse, Graves & Compton, of Las Vegas, for Respondent.

��71 Nev. 280, 281 (1955) Corn v. French��

1. Trial. Motion of defendant for involuntary dismissal admits truth of plaintiff's evidence and all inferences that

reasonably can be drawn therefrom, and evidence must be interpreted in light most favorable to plaintiff

and most strongly against defendant.

2. Physicians And Surgeons. In malpractice action by patient against physician for damages for removal of patient's breast allegedly

without her consent and without appropriate diagnosis to ascertain presence of cancer, issue whether

physician had performed operation without patient's consent and contrary to her instructions was for jury

under evidence. Rules of Civil Procedure, Rule 41(b).

3. Physicians And Surgeons. Written consent by patient for the performance by physician of operation to remove breast did not

foreclose inquiry into alleged negligent conduct of physician in determining advisability or necessity for

operation in malpractice action.

4. Physicians And Surgeons. Actionable negligence on part of physician may exist in diagnosis, as well as in treatment.

5. Physicians And Surgeons. In malpractice action by patient against physician for damages for removal of patient's breast allegedly

without her consent and without appropriate diagnosis to ascertain presence of cancer, issue concerning

alleged negligence of physician in diagnosis that patient had breast cancer was for jury, though there was

no expert medical testimony that physician was negligent in failing to make a biopsy or obtain a

pathological examination of patient's breast before proceeding with removal of the breast. Rules of Civil

Procedure. Rule 41(b).

OPINION


Plaintiff sued defendant for the unauthorized and unnecessary amputation of her right breast,

alleging that the operation was contrary to her desire and consent and without making an

appropriate diagnosis to ascertain presence of malignancy therein, it appearing from a

post-operation pathological analysis that there was no malignancy. After the plaintiff had

completed the presentation of her evidence, the court granted a motion for involuntary

dismissal on the ground that upon the facts and the law the plaintiff had failed to prove a

sufficient case for the jury. Rule 41(b) N.R.C.P.

��71 Nev. 280, 282 (1955) Corn v. French��

Plaintiff has appealed from that judgment of dismissal. Although she assigns a number of

errors claimed to be prejudicial and although numerous points are discussed by both parties,

we feel that the issue is narrowed to the question whether the jury could have found from the

evidence presented by the plaintiff and the inferences reasonably to be drawn therefrom (1)

that defendant had performed the operation without her consent and contrary to her

instructions, and (2) that the defendant had been negligent in failing to make a biopsy or

obtain a pathological examination of the tissue from plaintiff's breast before proceeding with

the radical operation. We conclude that on both of these issues there was sufficient evidence

to go to the jury, and it was therefore error to grant the motion for involuntary dismissal.

(1) Plaintiff testified that on August 12, 1950 she had an appointment with defendant at

the latter's office at Boulder City, Clark County, Nevada: “* * * We talked about the

condition of my breast; that there were danger signals; and he examined me and it was my

understanding that he would make a test of a lump under my breast to see if it was cancerous.

* * * He didn't make X-rays or blood tests or anything like that, whatever tests you make. He

did examine me with his hands, looked at my breast and examined me with his hands * * *. I

asked him if he could make a test to see whether or not it was cancerous and he said he could

and that he would. * * * and called the hospital later when I was dressed, and he said he was

going to make sure that they would have a room reserved for us, myself and another patient

he had in mind. * * * At that time that he was talking on the telephone, to the hospital, he was

talking about preparing a tray. And he said ‘for the removal of a right breast.' And I said ‘If

that's my breast you are talking about, you are not going to remove it. He said ‘I have no

intentions of removing your breast. I wouldn't think of doing so without first making a test.'

He said ‘It takes the same instruments to make a test as it does to remove one.' I�� G��>��C�� !0��+�+�+��!"<$(��!<((�

��71 Nev. 280, 283 (1955) Corn v. French��

subsequently entered the hospital, the Rose De Lima, on the 14th of August * * * around

12:30 or 1:00. At that time I signed a consent.” She then identified a document as the one

which she had signed and which reads as follows: “I hereby give my consent to James B.

French, M.D., to perform an operation for mastectomy and hemorrhoidectomy upon myself,

and to do whatever may be deemed necessary in his judgment.” It was witnessed by her

husband and a hospital nurse. She testified further: “Up to that time that I signed that

document I had never heard the word mastectomy that I know of. I did not know the term.

* * * On the evening of the 14th I saw Dr. French at the hospital. One of the sisters in the

hospital and Junelle Sherwood were also present. * * * I asked [the doctor] again to make

sure that he understood he was just to make a test of the breast, and the hemorrhoidectomy.

His answer was that he had no intentions of doing anything different; he was to make a test of

the breast only. I remember that I just kept repeating it, and talking about it, and I did say to

him that if he did go ahead and remove the breast that it could not be put back on, but if he

didn't take it off, then we could make the test and it need not be taken off.”

After the removal of her breast she testified to a subsequent conversation with Dr. French

at the hospital and she understood him to say that she had had cancer but that he had removed

it; that he had got it early and got every bit of it. “I said ‘Are you sure you got it all' and he

said ‘yes,' and I said ‘How long would it have been before it started to spread?' He said ‘That

I can't say, maybe two days, maybe a week.' He said it hadn't started to spread.” She testified

to a later conversation with the doctor at his office in Boulder City concerning some lumps on

her ribs. “And I went to see if the cancer was spreading and he said that it could not be,

because I didn't have cancer in the first place. That was the first time I was aware of the fact

that the breast did not have cancer.”

��71 Nev. 280, 284 (1955) Corn v. French��

Junelle Sherwood testified that she was present at the hospital on August 14, 1950, and

recalled the conversation between Mrs. Corn and Dr. French, in which she participated. She

stated: “I asked [Dr. French] if he was going to make a test on Mrs. Corn before—test of her

breast, and he said that he was, he always did in that case.” She was unable to remember

anything further, but on the following day she was recalled and testified: “Mrs. Corn asked

Dr. French to be sure and just take a test, and not to remove her breast. He said that he would,

that he always did.”

[Headnotes 1, 2]

Plaintiff's theory of this issue is, first, that when she signed the written consent to the

operation she had never heard and did not know the meaning of the word mastectomy, and,

secondly, that in any event she clearly and unmistakably made known to the defendant that he

was just to make a test of the breast and that his answers showed that he completely

understood such instructions; that the witness Junelle Sherwood substantially corroborated

her testimony; that the jury had the right to believe this testimony and to determine that the

operation was unauthorized. The trial court's reaction to this contention, when made in

opposition to the motion to dismiss was as follows: “Now, if any person after signing that sort

of consent, which is general in its terms as well as specific, could repudiate it after an

operation, there wouldn't be any doctor in the country that would be safe from suits of this

sort. She, whether or not she understood the meaning of it, by her action in giving a general

consent, is estopped from denying that she gave her consent to the very operation that was

performed.” Plaintiff's contention however is not that she had a right to repudiate her consent

but that, even assuming that she signed the written consent with full knowledge of its

meaning, she was not precluded from canceling or withdrawing it before the operation. Such

right is not seriously denied by defendant. We gather ��

��71 Nev. 280, 285 (1955) Corn v. French��

that the court completely discredited the testimony of the plaintiff and her witness. Whatever

right the court might have had to do this on a motion for new trial or under other possible

circumstances, the rule is clear on motion for involuntary dismissal that the motion admits the

truth of plaintiff's evidence and all inferences that reasonably can be drawn therefrom and that

the evidence must be interpreted in the light most favorable to plaintiff and most strongly

against defendant. 70 C.J.S. 1010, Physicians and Surgeons, sec. 63, Questions of Law and

Fact, Valdez v. Percy, 35 Cal.App.2d 485, 96 P.2d 142. The issue of whether the plaintiff had

withdrawn her consent should have gone to the jury.

[Headnote 3]

(2) In any event, as “the consent did not foreclose inquiry into negligent conduct in

determining the advisability and necessity for the operation,” Valdez v. Percy, 35 Cal.2d 338,

217 P.2d 422, 425, we turn next to the question as to whether there was sufficient evidence to

go to the jury on the question of the defendant's alleged negligence in failing to make a biopsy

or to have a pathological analysis of the breast tissue made as an aid to his diagnosis before

performing the radical operation. The reaction of the learned trial judge to this was as

follows: “The testimony of Dr. Hemington, the plaintiff's own witness, was to the effect that

he would have done the same thing under the same circumstances. That is, remove the breast

without biopsy. And plaintiff, of course, is bound by that testimony and could not impeach

that testimony by calling in some other doctor.

“It seems to me that no thought of bringing this suit ever arose until the pathologist's report

showed that what had been taken from Mrs. Corn wasn't malignant, and when that proved to

be the case why she thought that possibly she would still be alive today if her breast had not

been removed, and it was unnecessary to remove it.

“But lots of times, as stated before, hindsight is better ��

��71 Nev. 280, 286 (1955) Corn v. French��

than foresight. There is nothing to show that Dr. French didn't use expert judgment at the time

of the operation, and did what he or any other doctor would have done under the same or

similar circumstances. There was no conflict in the evidence sufficient for the jury to decide

any question of fact, and, consequently, the Court must take this case from [the jury] and

dismiss the action.”

Respondent's position is stated by him as follows: “The cases indicate that the law does

not hold a physician or surgeon liable for malpractice for every unfortunate result which may

occur in medical practice. Such physician is required to possess only that degree of learning

and skill ordinarily possessed by practitioners of the medical profession in the same locality,

and he need but exercise ordinary care in applying such learning and skill to the treatment of

his patient. No higher degree of responsibility is imposed in making a diagnosis than in

prescribing treatment. Whether a doctor does or does not possess or exercise the requisite

skill or learning in a particular case is generally a question for experts and can be established

only by their testimony, and such expert evidence is conclusive where the matter in issue is

one within the knowledge of experts only and not within the common knowledge of laymen.”

In support of this statement respondent cites: Huffman v. Lindquist, 37 Cal.2d 465, 234 P.2d

34, 29 A.L.R.2d 485; Worster v. Caylor, 231 Ind.625, 110 N.E.2d 337; Rodgers v. Lawson,

83 U.S.App.D.C. 281, 170 F.2d 157; Smith v. American Cystoscope Makers, Inc., 44

Wash.2d 202, 266 P.2d 792; Bugg v. Security Ben. Ass'n., 153 Kan. 522, 112 P.2d 73; Costa

v. Regents of Univ. of California, 116 Cal.App.2d 445, 254 P.2d 85. These cases do not

require discussion. On the whole they support the statement made. But the final statement

that the expert evidence is conclusive where the matter in issue is one within the knowledge

of experts only and not within the common knowledge of laymen, begs the question, and

leaves unanswered the main question presented to us.

��71 Nev. 280, 287 (1955) Corn v. French��

[Headnote 4]

That negligence may exist in diagnosis, as well as in treatment has often been recognized

and, as a proposition of law, requires no discussion. Lawless v. Calaway, 24 Cal.2d 81, 147

P.2d 604, and the cases therein cited.

Plaintiff called Dr. David Hemington as an expert witness. There was much testimony of a

highly technical nature and many unsuccessful attempts to frame a hypothetical question

which the court would permit. Finally, however, the witness stated: “If the permission for

operation was signed as it is here, then I would have felt if I were doing the surgery, that I had

the option of using my best judgment in a case with all of these conditions as stated in this

record. I feel that I would have done the same as Dr. French. I would have done a complete

mastectomy at the time.” Plaintiff's counsel, claiming surprise, attempted to impeach this

testimony by confronting Dr. Hemington with his testimony at a former trial. Defendant

objected and the court ruled: “I don't think that there is any surprise. You knew the attitude of

Dr. Hemington. He was a hostile witness more or less to start with, and I can't see any

surprise in this case. Call the jury back. I won't allow you to impeach him.” Finally he

testified as follows: “The ordinary practice at that time, inasmuch as we had no pathologist

* * * was, of course, determined, first, by the history, the physical examination, and the

findings at operation. Now, ordinarily, in a case such as this, a biopsy would have been done,

but if the circumstances at the time of the operation right in the operating room of which I

know nothing, warranted, and if the consent is as it was signed, then I believe the doctor was

warranted in removing the breast, without biopsy.”

As to his familiarity with the standard practice in the community in the diagnosis and

treatment of diseases of the breast (in 1950 when there was no resident pathologist there) Dr.

Hemington had some difficulty in his analysis. He said: “I am embarrassed to a certain extent��

��71 Nev. 280, 288 (1955) Corn v. French��

because standards are peculiar things. However, with the commonly accepted methods, I am

familiar, yes.” Counsel tried to reconcile the witness's use of the terms “standard” and

“commonly accepted methods.” The witness then agreed with the court's interposition of its

understanding of the situation in the following words: “I imagine that there are all classes of

doctors here. Some of them have one standard and some have the other, and some doctors

frown on the practice of certain doctors; and maybe the majority of doctors are inferior

doctors, and that could be classed as a standard. But I think what this doctor in the

preliminary question testified to was that he knew what the ordinary recognized course of

procedure was.” Later Dr. Hemington showed his further impatience with any attempt to

define standards. He said: “Well, the so-called standards that you fellows are talking about, in

my opinion, don't exist * * *.” He testified that for many, many years (before a pathologist

was present in Las Vegas after August, 1950) it was the practice to submit biopsies from the

breast to a pathologist in California or elsewhere for a report. He said: “We have done that

routinely,” and that this had been the only method whereby a report could be obtained for the

pathological study (that is, the determination of what disease is present) of the tissue

submitted. However, when asked if that had been “the standard practice,” he said, “I object to

the ‘standard.' I refuse to answer that.” He stated however that he had still submitted his

pathological studies to pathologists outside of the area even after there was a pathologist in

that area.

Plaintiff called the defendant, Dr. French, as an adverse witness. There was already in the

record the fact that the postoperation pathological report (following the operation of August

15, 1950) showed that there was no malignant tissue in the removed breast. We turn to Dr.

French's testimony. It was his original provisional diagnosis that Mrs. Corn had carcinoma of

the right breast. “Q. Was it your opinion at the time, ��*�� /��

��71 Nev. 280, 289 (1955) Corn v. French��

although not expressed on this record, that Mrs. Corn had cancer of the breast? A. That was

my provisional diagnosis as expressed by the record, and it was also my opinion. Q. Was it

your opinion as you operated upon the breast of Mrs. Corn? A. It was my opinion during

surgery. Q. Were you able to tell to what extent the cancer had developed, if it was there? A.

Yes, I feel like I could, except that you cannot—it is impossible to determine the spread of

cancer by the naked eye, or by examination of a piece of tissue or a body, you cannot tell from

what might be microscopic in a blood stream. You have a rough idea as to whether it is

infiltrating rapidly into any other area or not. Q. Did you reach that conclusion concerning

this at the time you were performing the operation on Mrs. Corn? A. My conclusion was that

were this cancer of the breast, which I felt it was, that in all probability it had been entirely

removed, and the patient would be cured and well. Q. Doctor, is it standard procedure where

there is fear of or the inability to eliminate the possibility of cancer in the tissue of the breast,

is it standard procedure to perform a radical mastectomy and by that eliminate also the axilla

glands, the muscles going up into the arm? A. No, that is not a standard procedure. Q. Where

there is some reason or probability of cancer being present in the breast, and it is not by way

of biopsy determined how extensive that cancer may be? A. We determine whether to do

what we call a simple mastectomy by removing the breast, or a radical mastectomy, taking off

of the muscles of the shoulder girdle and up into the axilla, rests entirely with the surgeon at

the time of operation. Q. Doctor, this operation was performed, I presume, to remove cancer,

is that correct? A. That was my provisional diagnosis, and that is the reason that the

mastectomy was done. Q. Your conclusion, doctor, was that it was chronic cystic mastitis? A.

A form of chronic cystic mastitis. Q. Isn't it true that chronic cystic mastitis and carcinoma

are inconsistent terms medically? A. Yes. Q. So that your provisional or your first idea of��/��

��71 Nev. 280, 290 (1955) Corn v. French��

what Mrs. Corn had is inconsistent with your conclusion, is that right? A. No, I would not

state that. Q. Isn't that what we must conclude from your previous statement? A. No, that is

not right. In the first place, you have asked me only about the adenocystic disease that Mrs.

Corn had, and nothing concerning the bleeding from the nipple or the cystic tumor which was

attached to the chest wall. We are dealing with three problems in this particular case. * * *

The entire breast was involved with small bloody tumors and masses.” Dr. French proceeded

to testify, in answer to questions from plaintiff's counsel, as to the incidence of breast cancer

in patients affected by chronic cystic mastitis as about 4.9 percent, that according to sundry

pathologists named by him it varied from that figure to 20 percent. He also testified that

approximately 60 or 65 percent of the tumors attached to the chest wall are malignant and that

the possibility of a cure is considerably less than if it is lying free in the breast. He explained

however that this did not apply to the plaintiff's breast, which exhibited the additional

conditions described above. In answer to a question, Dr. French answered: “The operative

report indicates that the incision was to remove the breast, and that the initial incision was

made with that in mind.” He had no independent recollection of making any initial

preliminary incision. “The intention was to remove the breast, and I assume that the incision

that I made was to remove the breast.”

The record does not indicate that plaintiff was advised at any time by defendant that what

he said was the “standard procedure” in the area, was to perform a radical mastectomy

without a determination of malignancy through a biopsy, or that there was no pathologist in

the area by whom a pathological analysis of the tissue might be made.

[Headnote 5]

The foregoing lengthy recital of the evidence has been necessary in order to present the

problem confronting us. There is no definite or specific expert testimony to �� *��=�� *��

��71 Nev. 280, 291 (1955) Corn v. French��

the effect that the defendant did not possess the degree of learning and skill ordinarily

possessed by practitioners of the medical profession in the same locality, or that he did not

exercise ordinary care in applying such learning and skill in the diagnosis of the plaintiff's

ailment as cancer of the breast without a biopsy, or that standard practice required him to

disclose to his patient the fact that no local pathologist was available and the fact that if in his

judgment during surgery it seemed advisable he would perform a radical mastectomy without

submitting any of the breast tissue to an outside pathologist for examination and report.

Absent such expert testimony should the issue of negligence in the diagnosis have gone to the

jury? We have concluded that it should.

Counsel have referred us to no case, nor has our independent research brought any to light,

in which any court has been called upon to determine the question whether, without expert

medical testimony, a jury might, from its own common knowledge and experience, recognize

the use of the biopsy or pathological examination and the microscopic analysis of tissue as

common and accepted diagnostic practice in determining the presence or absence of cancer.

We find numerous examples of cases in which under varying conditions expert testimony was

considered unnecessary. See annotation 141 A.L.R. 5. As observed by the court in Burris v.

Titzell, 189 Iowa 1322, 177 N.W. 557, 562, 179 N.W. 851: “[C]ases do arise where common

knowledge of physical facts and of the natural laws that govern physical life are so well

known that a jury, from the facts before it, is able to determine, and correctly, whether the

treatment was proper or not.” It was likewise noted in Wharton v. Long, 18 Ohio L. Abs. 147,

“that expert testimony is not always required to enable a jury to determine whether a

physician has been guilty of negligence or malpractice, and this is particularly so where the

conduct of or treatment administered by the physician is of such a character as to warrant the

inference of want of ��*��-

��71 Nev. 280, 292 (1955) Corn v. French��

care or negligence in the light of the knowledge and experience of the jurors themselves as

ordinary laymen.” These expressions are typical of many found in the cases, although there is

no pretension that these or any of such cases are factually in point. However a large class of

cases, which we may refer to as the X-ray cases, we believe to be in all respects analogous,

although the X-ray may have a longer history of use than the biopsy.

In Reynolds v. Struble, 128 Cal.App. 716, 18 P.2d 690, 694, a verdict for the plaintiff was

sustained, the appellate court holding that he was the “victim of an unskilled diagnosis” in

that the defendant physician had misread an X-ray. The court said: “Indeed, it might be

almost said that the use of the X-ray as an aid to diagnosis, in cases of fracture or other

indicated cases, is a matter of common knowledge. Even the layman, when injured, of his

own accord seeks the X-ray. And under the rule of Jacobson v. Massachusetts, 197 U.S. 11,

25 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765, the court could, in the absence of testimony, take

judicial notice of this scientific advancement.” This was in 1933. Not only did the Supreme

Court of California deny a rehearing in that case but it quoted the language appearing above

in the later case of McBride v. Saylin, 6 Cal.2d 134, 56 P.2d 941. There a judgment of

nonsuit was entered but reversed on appeal. The defendant physician was sued for alleged

malpractice in the treatment of an eye injury. A piece of steel had been lodged in the eye but

was not discovered by the defendant, although the use of the X-ray would readily have shown

its presence. We frankly concede the important difference of the facts in that case, as there

was expert evidence to the effect that the X-ray and the opthalmoscope were the customary

means used to determine the presence or absence of a foreign body in the eye. Our reference

is for the purpose of calling attention to the court's emphasis of the use of the X-ray as an aid

to diagnosis as a matter of common knowledge. In 1904 the Supreme Court of the United@��)��/�� !& �K�@��!! �"'�@�3��

��71 Nev. 280, 293 (1955) Corn v. French��

States in Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 365, 49 L.Ed. 643, 3

Ann.Cas. 765, held that in the absence of testimony the court could take judicial notice of the

efficacy of vaccination as a prevention of smallpox. The main question before the court was

whether the Massachusetts compulsory vaccination statute was in violation of constitutional

limitations. Mr. Justice Harlan quoted with approval the language of the New York Court of

Appeals, Viemester v. White, 179 N.Y. 235, 72 N.E. 97, 70 L.R.A. 796: “‘A common belief,

like common knowledge, does not require evidence to establish its existence, but may be

acted upon without proof by the legislature and the courts.'” Speaking for the majority of the

United States Supreme Court, Mr. Justice Harlan said: “What everybody knows the court

must know, and therefore the state court judicially knew, as this court knows, that [the theory

of vaccination as a prevention of the spread of smallpox] accords with the common belief,

and is maintained by high medical authority.”

In Agnew v. City of Los Angeles, 82 Cal.App.2d 616, 186 P.2d 450, 451, the trial court

had granted a motion for nonsuit and the reviewing court, following the general rule,

considered the evidence in the light most favorable to plaintiff. Plaintiff was suffering great

pain as the result of a fall and a possible fracture was indicated. Subsequent X-rays showed

that plaintiff's hip was broken. Nonsuit had been granted because there was no expert

testimony that defendant had failed to use that degree of skill and learning ordinarily

possessed by physicians of good standing practicing in the community where he resided. The

facts testified to by plaintiff showed her fall, her great pain, her several consultations of the

defendant and the defendant's persistence in his diagnosis that she was suffering only from a

bruise. The court held that such facts (recited in greater detail in the opinion), if believed,

would make a prima facie case in plaintiff's favor requiring denial of the ��

��71 Nev. 280, 294 (1955) Corn v. French��

motion for nonsuit. The court recognized the general rule. “The law requires that a physician

shall have that degree of skill and learning ordinarily possessed by physicians of good

standing practicing in the same locality, and that he shall use the same care and diligence in

applying that learning to the treatment of a patient. It is likewise the general rule that whether

he has done so in a particular case is a question for experts and can be established only by

their testimony.” Citing Reynolds v. Struble, supra, McBride v. Saylin, supra, and other

California cases, the court, in the following language, noted the existence of the general and

specific exceptions to that rule. “General Exception. To the above general rule there is this

well recognized exception, to wit, where the question of the propriety of the treatment is a

matter of common knowledge of laymen, expert testimony is unnecessary in order to establish

liability in a malpractice case.

“Specific Exception. The use of the X-ray as an aid to diagnosis in cases of fracture or

other indicated cases is a matter of common knowledge, and the failure to make use thereof in

such a case amounts to a failure to use that degree of care and diligence ordinarily used by

physicians of good standing practicing in this community. The court in the absence of expert

testimony may take judicial notice of this fact.” The court concluded that when plaintiff fell, a

possible fracture was indicated; that it was a matter of common knowledge of which the trial

court should have taken judicial notice that an ordinary physician of good standing in the

community in the exercise of ordinary care and diligence would have had X-ray pictures

taken; that in failing to do so defendant “did not exercise the degree of learning and skill

ordinarily possessed by physicians of good standing practicing in this community”; that the

defendant thus failed to use ordinary care and diligence in his treatment of the plaintiff. See

also Kimble v. Roeder, 115 Neb. 589, 214 N.W. 1; Howell v. Jackson, 65 Ga.

��71 Nev. 280, 295 (1955) Corn v. French��

App. 422, 16 S.E.2d 45; Casenburg v. Lewis, 163 Tenn. 163, 40 S.W.2d 1038; In re

Johnson's Estate, 145 Neb. 333, 16 N.W.2d 504; Valdez v. Percy, 35 Cal.App.2d 485, 96

P.2d 142, 35 Cal.2d 338, 217 P.2d 422; Lawless v. Calaway, 24 Cal.2d 81, 147 P.2d 604.

In the instant appeal from the judgment based upon the order granting the motion to

dismiss, we are not called upon to determine whether or not defendant, in removing plaintiff's

breast as the result of his original provisional diagnosis and without any pathological

examination, failed to use ordinary care and diligence, but rather whether the evidence

presented was sufficient to have justified a finding, or a necessary inference from the facts, to

such effect, by a jury.

For over two generations pathologists and other medical men have been writing treatises

on the pathological analysis of tissues for the diagnosis of cancer, and general practitioners

have been sending their patients with symptoms of the disease to specialists. “What

everybody knows the court must know.” And this knowledge might well permit a jury to peer

beneath the cloak of protection thrown about the defendant by the testimony that his

diagnosis and treatment were in accordance with the standards of the profession in his

community. This observation becomes stronger when we consider the testimony of Dr.

Hemington, quoted above, concerning those standards. 1

In Wiley v. Wharton, 68 Ohio App. 345, 41 N.E.2d "'' ��

____________________

1

It may be noted too that Dr. Hemington's language approving the removal of the breast without biopsy was

at best equivocal. His approval was based upon the combination of two circumstances, the patient's consent and

“the circumstances at the time of the operation right in the operating room of which I know nothing.” The only

circumstance that appeared in the operating room which was not previously known to the defendant was that the

entire breast was involved with small bloody tumors and masses. But the jury could well have deduced from the

defendant's testimony that this condition did not appear until he had already made his incision for the removal of

the breast, and so could not have been one of the factors inducing such removal.

��71 Nev. 280, 296 (1955) Corn v. French��

255, digested in Anno. 141 A.L.R. 24, it was held even in absence of expert testimony that

the facts while not permitting the doctrine of res ipsa loquitur were sufficient to call for

explanation. So here we feel that the jury may well have reached the conclusion that the facts

called for explanation. It is true that the defendant physician, called as an adverse witness,

testified fully as to his diagnosis and treatment and that Dr. Hemington, called by the

plaintiff, but characterized by the trial court as a hostile witness, did come forward with an

“explanation” that the ordinary diagnostic procedure of biopsy was not followed because

there was no local pathologist in the county. This might well serve to explain why no biopsy

was secured during the operation proper, preliminary to the mastectomy. It would not explain

absence of a preliminary or independent pathological examination. There was no evidence

that an emergency existed and no explanation as to why a specimen could not have been sent

to an outside pathologist or the patient referred to another city for treatment where these

services were available, 2 or why she was not at least advised that defendant intended to

make a diagnosis without the assistance of a biopsy or pathological examination, or why she

was not advised of Clark County's lack of such facilities and the availability to her of these

facilities in some other city that could be readily reached by air transportation within the

course of a couple of hours. At this stage in the proceedings (before the defendant had made a

presentation of his defense) the absence of such explanation is readily understandable. We

may not, however, anticipate that it would eventually have been given or that if given it

would unquestionably have served to satisfy the jury.

The upshot of our discussion of this issue is that we are convinced, first, that the jury's

consideration of the ��:��;�� =��:��;��L�� *��*��.�� *�� 2E�H��

____________________

2

Reno, Los Angeles, San Francisco, Palo Alto, Salt Lake City—to name just a few. Here it should be noted

again that the office examination was made August 12, 1950 and the operation performed August 15, 1950.

��71 Nev. 280, 297 (1955) Corn v. French��

use of (or the failure to make use of) the pathological analysis of the tissue, in a proper case,

for the purpose of diagnosis, must take its place beside the jury's consideration of the use of

(or the failure to make use of) the X-ray in a proper case, and, secondly, that a jury has a right

to take this into consideration in its own common knowledge and experience and without the

assistance of expert testimony—the knowledge, concisely expressed, that “[m]icroscopic

diagnosis is the sine qua non of neoplastic disease. It is the only means of absolutely

establishing the true nature of the disease.” 3

For the reasons given, we conclude that the order granting the motion for involuntary

dismissal was error, and that the judgment must be reversed and the case remanded for a new

trial.

Reversed and remanded with costs to appellant.


____________________

3 Lester Adelson, M.D., in “Physician in the Courtroom” (The Press of Western Reserve Univ., 1954).

____________

��71 Nev. 297, 297 (1955) Transport Clearings v. Purdy Iron & Metals, Inc.��

TRANSPORT CLEARINGS OF LOS ANGELES, a California Corporation, Appellant, v. F.

J. PURDY IRON & METALS, Inc., a Nevada Corporation, Respondent.

No. 3888

November 2, 1955. 289 P.2d 172.


Department No. 2.

Action by assignee of carrier, against person who acted as consignor of goods, in behalf of

real shipper, to recover eleven cents per one hundred pounds differential between rate actually

charged for shipment of goods, and lawful rate prescribed by Interstate Commerce

Commission. From a judgment for defendant, plaintiff appealed. The Supreme Court, Eather,

J., held that though carrier had charged rate eleven cents per ��=�� =��


one hundred pounds less than lawful rate for transportation of railway rail on carrier's trucks,

shipper was liable for freight charges at lawful rate, since in public interest, carrier has both

right and duty to collect lawful charge, which cannot be avoided by contract, but that

consignor, though he had signed shipping order as shipper, was not liable to carrier where he

did not own rail, and merely acted in owner's behalf.

Affirmed.

Sidney R. Whitmore, of Las Vegas, for Appellant.

Elwin C. Leavitt, of Las Vegas, for Respondent.

1. Carriers. Though carrier, pursuant to agreement, charged rate 11 cents per 100 pounds less than lawful rate

prescribed by Interstate Commerce Commission, for transportation of railway rail on carrier's trucks,

shipper was nonetheless liable for differential between rate charged and lawful rate.

2. Carriers. A carrier has both the right and duty to collect from the shipper the lawful charge prescribed by the

Interstate Commerce Commission, and this right and duty cannot be avoided by contract.

3. Carriers. As general rule, carrier has right to look for his compensation to person who required him to perform the

service by causing the goods to be delivered to him for transportation, and, generally, that person is the

shipper named in the bill of lading, or consignor.

4. Carriers. Where consignor of shipment of railway rail did not own rail, but merely acted in owner's behalf, and rail

was not shipped on consignor's account or for his benefit, consignor was not liable to carrier though he had

signed shipping order as shipper.

5. Carriers. Shipper's liability for differential between rate stated in shipping order and lawful rate prescribed by

Interstate Commerce Commission, is not contractual, but is implied in law in spite of provisions of

shipping order.


OPINION


This is an appeal from an order denying a new trial or to alter or amend a judgment.

In July, 1953, Lipsett Steel Products, Inc., a Los Angeles, California, corporation,

requested respondent in Las Vegas, Nevada, to examine certain government-owned railroad

rail and ascertain freight charges on its delivery in California. Respondent communicated

with Arrowhead Freight Lines in Las Vegas, and with a representative of that company

examined the rail. Arrowhead quoted a freight rate of 38 cents per hundred pounds for

California delivery. On the basis of respondent's report, Lipsett bid on the rail and was

awarded a government contract of sale. Respondent was employed by Lipsett to load the rail

onto Arrowhead trucks. This was done. To hasten the shipment on its way the shipping order

providing a 38 cents freight rate was signed by respondent as shipper. The order contained no

express promise on the part of respondent to pay freight charges.

The rail was duly delivered to Lipsett in California and the freight charges at the 38 cents

rate were paid by Lipsett to Arrowhead. Thereafter an audit by Arrowhead disclosed that the

quoted rate was in error and was 11 cents per hundred pounds less than the lawful rate

prescribed by Interstate Commerce Commission schedules. Arrowhead's claim for the 11

cents differential was assigned to appellant. This action followed appellant's unsuccessful

demand for payment.

[Headnotes 1, 2]

No question is raised as to Arrowhead's right to the 11 cents differential, notwithstanding

its quotation of 38 cents. In the public interest there is both a right and a duty in the carrier to

collect the lawful charge in full from the shipper, which right and duty cannot be avoided by

contract. Artic Roofings Inc., v. Travers, Del. 3, Terry, 293, 32 Atl.2d 559. The question

confronting this court is whether respondent as shipper is liable for ��


that differential. The trial court, in holding for respondent, ruled that it was not. This holding

in our opinion was proper.

[Headnotes 3, 4]

As a general rule, a carrier has a right to look for his compensation to the person who

required him to perform the service by causing the goods to be delivered to him for

transportation, and that person is generally, of course, the shipper named in the bill of lading,

or the consignor. Louisville & N. R. Co. v. Central Iron & Coal Co., 265 U. S. 59, 44 S.Ct.

441, 68 L.Ed 900, 9 Am.Jur., Carriers, Sec. 622, page 792. However, in this case, the person

who required the goods to be shipped was Lipsett Steel Products, Inc. of California, and not

the respondent. It has been held that where the goods being shipped are not owned by the

consignor and were not shipped on his account or for his benefit, the carrier is not entitled to

call upon the consignor for the freight. Louisville & N. R. Co. v. Central Iron & Coal Co.,

supra.

[Headnote 5]

Furthermore, in the case before us the fact that respondent signed the shipping order as

shipper is of no significance from the point of contractual liability. If any implied promise

might have been created by this act it could not affect the 11 cents differential. The obligation

to pay that differential is one implied by law in the public interest. It does not spring from the

provisions of the shipping order but exists despite and contrary to those provisions. It exists

against the shipper who has profited by the carrier's imposition of a lesser charge than was

prescribed by law. Respondent in point of fact was not the shipper. Arrowhead, through

knowledge of Lipsett's ownership of the rail and of respondent's true position in the

transaction, was aware of this fact. Appellant, then, has failed to establish liability on the part

of respondent.



____________

��71 Nev. 301, 301 (1955) Lewis v. Lewis��

RICHARD LEWIS, Appellant, v. ALICE EFFIE

LISSON LEWIS, Respondent.

No. 3802 and No. 3862

November 3, 1955. 289 P.2d 414.

Husband's divorce action wherein Eighth Judicial District Court, Department No. 3, Clark

County, Ryland G. Taylor, Judge, rendered decree granting divorce and directing payment by

husband of specified sums for alimony and child support, plus lump sum to enable wife to

provide home for herself and children. Husband appealed from portion of decree directing

making of such payments. Ten months later, husband moved to modify decree by reduction of

payments specified, and appealed from denial of motion upon refusal to consider motion

upon its merits, and both appeals were consolidated. The Supreme Court, Merrill, C. J., held,

inter alia, that where wife's counsel in effect waived requirements of supersedeas, pendency

of appeal and waiver of supersedeas effected stay of husband's obligation to make lump sum

payment, and neither pendency of appeal nor husband's failure to make lump sum payment

justified trial court's refusal to consider motion to modify upon its merits.

On appeal from judgment, affirmed. On appeal from order, remanded for further

hearing.

Samelson and Johnson, of Reno, and John H. McNamee and Robert E. Jones, of Las

Vegas, for Appellant.

David Zenoff, Calvin C. Magleby, and John Manzonie, of Las Vegas, for Respondent.

1. Divorce. In husband's divorce action wherein husband testified to income of approximately $10,000 a year and

record showed that increase in income was reasonably to be anticipated, divorce decree awarding wife

$200 a month alimony and $100 a month each for support of three children was not abuse of discretion.

��71 Nev. 301, 302 (1955) Lewis v. Lewis��

2. Divorce.

In husband's divorce action, record established that purpose of provision of divorce decree awarding wife

$12,000 in addition to alimony and child support was to enable wife to provide home for minor children

and herself while children remained in her custody, and thus award was within statute authorizing court to

set apart such portion of husband's property for wife's support and support of their children as should be

deemed just and equitable. N.C.L. 1931-1941 Supp., sec. 9463.

3. Divorce. In statute authorizing court granting divorce to “set apart” such portion of husband's property for support

of wife and children as should be deemed just and equitable, quoted words should not be narrowly defined.

N.C.L. 1931-1941 Supp., sec. 9463.

4. Divorce. In husband's divorce action, wherein record indicated that at time of separation husband was possessed of

property of value in excess of $40,000, provision of divorce decree awarding wife $12,000, in addition to

alimony and child support, to enable wife to provide home for minor children and herself while children

remained in her custody, was not abuse of discretion. N.C.L. 1931-1941 Supp., sec. 9463.

5. Divorce. Divorce decree providing that support payments for children should continue until each of children

reached age of majority, married or became self-supporting, or until each child had had four years of

college education if child so desired such education, did not require husband to continue support through

college regardless of intervening majority.

6. Divorce. In husband's divorce action, wherein divorce decree awarding wife alimony and child support, plus lump

sum to enable wife to provide home for herself and children, was entered and appealed by husband, and

wife's counsel in effect waived requirements of supersedeas, pendency of appeal and waiver of supersedeas

effected stay of husband's obligation to make lump sum payment, and neither pendency of appeal nor

husband's failure to make lump sum payment justified trial court in refusing to consider motion to modify

decree by reduction of payments specified.

7. Divorce. In husband's divorce action, wherein divorce decree awarding wife alimony and child support, plus lump

sum to enable wife to provide home for herself and children, was entered and appealed by husband, and

husband sought to have wife compelled to release to him certain property of his over which she retained

measure of control so that he could liquidate �� =��

��71 Nev. 301, 303 (1955) Lewis v. Lewis��

property in order to meet lump sum payment, trial court possessed control over property through

jurisdiction over parties although property was situated beyond its jurisdiction, but need not have acted

upon husband's request until disposition of appeal challenging lump sum payment order.

OPINION


This is an action for divorce brought by the husband. A decree was entered granting him a

divorce and directing payment by him of specified sums for alimony and child support. An

appeal to this court was taken by the husband from that portion of the decree which directed

the making of such payments. Subsequently the husband moved the trial court, upon the

ground of changed circumstances, for reduction of the amount of the payments specified by

the decree. This motion was denied and an appeal from that order was taken to this court by

the husband. Both appeals have now been consolidated for consideration by this court.

(1) Appeal from the judgment. Case No. 3802.

Appellant first asserts that the trial judge abused his discretion in awarding to the wife

$200 a month alimony and $100 a month each for the support of three children, a total of

$500 a month. It is contended that these sums are excessive in the light of appellant's income.

[Headnote 1]

At the time of the trial appellant testified to an income of approximately $10,000 a year.

He was new to the community of Las Vegas in which he was then living. It is clear from the

record that in the view of the trial judge appellant's earning power as demonstrated prior to

his coming to Las Vegas was such that an increase in income was reasonably to be

anticipated. Under the circumstances we cannot say that the judge's evaluation of earning

power was unreasonable to the point that his action must be held an abuse of discretion.

��71 Nev. 301, 304 (1955) Lewis v. Lewis��

Appellant next asserts that the trial court was without power to include the following

provision in the decree, “It is further ordered, adjudged and decreed that in addition to the

foregoing allowances the plaintiff shall pay to the defendant forthwith the sum of $12,000.” It

is contended that this payment of necessity would come from appellant's separate property

and that the order thus constituted a disposition of separate property which since 1943 the

trial court has had no legislative authority to make. Section 9463, N.C.L., prior to 1943

provided that in granting a divorce the court shall make “such disposition of community and

separate property of the parties as shall appear just and equitable * * *.” By the 1943

amendment the section was made to read “In granting a divorce the court may award such

alimony to the wife and make such disposition of the community property of the parties as

shall appear just and equitable * * *. 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.”

[Headnotes 2, 3]

From the record it is clear that the purpose of the award was to enable the wife to provide a

home for the minor children and for herself while the children remained in her custody, which

home the husband in separating from his wife had neglected to provide. The award, then,

insofar as purpose is concerned, falls within the authorization of the statute. Appellant

contends, however, that awards of property under the statute can only be by a setting apart of

specific property; that this award, contemplating as it must, liquidation of property and

application of the proceeds of such liquidation, is not a setting apart. Appellant is unable to

supply authority for this distinction. Where the rights to support of a wife or minor children

are involved, the words “set apart” should not be narrowly defined. Powell v. Campbell, 20

Nev. 232, 20 P. 156, 2 L.R.A. 615. In our ��=��

��71 Nev. 301, 305 (1955) Lewis v. Lewis��

view appellant's definition is unjustifiably narrow and, under the statute, the award was

within the power of the court to make.

[Headnote 4]

We find no abuse of discretion on the part of the trial judge in fixing the amount of the

award at $12,000. The record indicates that at the time of separation the husband was

possessed of property of a value in excess of $40,000.

[Headnote 5]

Finally appellant contends that the decree improperly provides for support of the children

beyond their minority or, at the least, is ambiguous in being subject to such construction. The

decree provides that the support payments shall continue “until each of said children has

reached the age of majority, marries or becomes self-supporting or until each child has had

four years of college education if the child so desires such education * * *.” Appellant

construes this provision as requiring continued support through college regardless of

intervening majority. We do not so construe it. The alternative bases for termination are

stated in the disjunctive. Any one of them independently would warrant termination.

Respondent concedes that this is the proper construction and we see no need for modification

or clarification.

Judgment affirmed.

(2) Appeal from the order denying motion to modify. Case No. 3862.

At the time of the motion to modify, ten months after judgment, the record shows a change

of circumstances on the part of appellant. His income had been reduced from $10,000 to

$5,200. Not only had his anticipated earnings, upon which the court had based its original

award of support, failed to materialize; his earnings had been drastically reduced to a point

where it would have been impossible for him from earnings to make the payments ordered by

the court.

��71 Nev. 301, 306 (1955) Lewis v. Lewis��

The court denied the motion, refusing to consider it upon the merits, its expressed reasons

being that an appeal was pending from the original judgment and that the appellant was in

default of the court's order that he pay $12,000 to his former wife.

[Headnote 6]

We see no reason why the pendency of the appeal should preclude a consideration of

changed circumstances by the trial court upon a motion to reduce the amount of support.

Further the record demonstrates that the appellant was not in legal default. His obligation to

pay the $12,000 was involved in the appeal which he had taken and to that extent was

actually disputed by him. Counsel for respondent had in effect stipulated that under certain

circumstances which have been met by the appellant the requirements of supersedeas would

be waived. The pendency of the appeal and waiver of supersedeas then effected a stay of

appellant's obligation to make the $12,000 payment and his failure in this regard could

constitute no justification for a refusal to consider the motion upon the merits. In our view,

then, the court should have proceeded to a consideration of the merits of the appellant's

motion for modification.

[Headnote 7]

Appellant also complains that the court refused his request that the respondent be

compelled to release to him certain property of his over which she retained a measure of

control. His contention is that before he can make the payment of $12,000 his property must

be liquidated. The court refused to act upon the ground that the property involved was

situated beyond its jurisdiction. Through jurisdiction over the parties, however, the court

possessed control over the property and in the interests of avoiding multiplicity of suits it

might well have exercised such control. Nevertheless, considering the fact that the payment

order was the subject of an appeal, we do not feel that the trial court must necessarily have

taken action with reference to property ��

��71 Nev. 301, 307 (1955) Lewis v. Lewis��

subject to the control of the wife. Disposition of that property might well be made to await

final determination of all questions involving the $12,000 payment and thereafter be made to

serve in connection with a complete execution of the court's orders in behalf of the wife and

children. The appeal respecting the $12,000 payment having now been determined,

appropriate action could now be taken.

The motion to modify is remanded to the trial court for hearing and for discretionary

action upon the merits of the requested reduction in monthly payments and for such action

respecting property of the husband now subject to control of the wife as the court deems

appropriate.

Upon both appeals, costs to respondent.


____________

��71 Nev. 307, 307 (1955) Holmes v. District Court��

IRA BRADFORD HOLMES, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT,

HONORABLE A. S. HENDERSON, District Judge Presiding, Respondents.

No. 3907

November 3, 1955. 289 P.2d 414.

Proceeding on petition for writ of certiorari to review action of respondent court in

granting a divorce decree. The Supreme Court held that where defendant did not petition for

certiorari until more than two years after he allegedly became aware of judgment and after he

had remarried and after child was born of remarriage, he was deemed to have acquiesced in

decree, and certiorari was denied.

Writ denied.

(Rehearing denied December 7, 1955.)

Ira Bradford Holmes, of Las Vegas, in Proper Person.

Hawkins & Cannon, of Las Vegas, for Respondents.

��71 Nev. 307, 308 (1955) Holmes v. District Court��

Certiorari.

Where defendant did not petition for certiorari to review divorce decree until more than two years

after he allegedly became aware of judgment and after he had remarried and after child was born of

remarriage, he was deemed to have acquiesced in decree, and certiorari was denied.

OPINION

Per Curiam:

Petitioner has applied to this court for a writ of certiorari to review action of respondent

court in granting a decree of divorce, contending that the court was without jurisdiction to act.

The decree in question was granted December 11, 1952. Petitioner, according to his

petition, became aware of the existence of that decree July 16, 1953. His petition for writ of

certiorari was filed herein September 12, 1955, more than two years later. On June 5, 1954

petitioner remarried. On March 9, 1955 a child was born of that marriage.

Under these circumstances we feel that we must exercise our discretion in a refusal to

review by certiorari action of the trial court in which petitioner has so definitely acquiesced,

both by delay and by action involving status.

Writ denied.

____________

��71 Nev. 309, 309 (1955) Bigness v. State��

GLENN N. BIGNESS, Appellant, v. THE STATE

OF NEVADA, Respondent.

No. 3845

November 16, 1955. 289 P.2d 1051.

Appeal from order of the Second Judicial District Court, Washoe County; John S. Belford,

Judge, Department No. 1, denying writ of error coram nobis.

Proceedings to have a conviction occurring in Nevada 16 years before set aside as

unlawfully imposed and void. From an adverse judgment the defendant appealed. The

Supreme Court, Merrill, C.J., held that the failure of Nevada to provide corrective judicial

process for post conviction review was not under the circumstances a denial of due process.

Affirmed.

Morgan Anglim, of Reno, for Appellant.

Harvey Dickerson, Attorney General, and A. D. Jensen, District Attorney, Washoe County,

for Respondent.

1. Habeas Corpus. Where accused was confined in New York as a multiple offender based in part on conviction in Nevada

16 years before, habeas corpus proceeding to test the validity of the Nevada conviction was not available,

since accused was not confined in Nevada and time for appeal from the conviction had long since expired.

2. Criminal Law. In proceeding to review conviction on the ground that accused was neither represented by counsel at time

of arraignment nor did he intelligently waive his right to be so represented, burden rested upon the accused

to show a nonwaiver of the right to counsel.

3. Criminal Law.

Where petitioner while confined in New York as a multiple offender sought review of a conviction 16

years before in Nevada by application for common-law writ of error coram nobis, writ was not appropriate

procedure, where the facts upon which the petitioner based his contention of invalidity of the conviction

were a matter of public record so that the question was one of law rather than of newly discovered fact.


4. Constitutional Law. Where petitioner was confined in New York as a multiple offender based in part on a Nevada conviction

16 years before and remedy of habeas corpus had been available to petitioner during his confinement in

Nevada, failure of Nevada to provide corrective judicial process for post execution review under the

circumstances did not deprive the petitioner of due process.

OPINION


In 1937 appellant was arrested in Reno, charged with burglary. He waived preliminary

hearing, pleaded guilty to the charge, was sentenced, confined in the state prison and through

service of sentence has executed and discharged all penal obligation to this state.

[Headnote 1]

He has continued to offend society, however. When these proceedings were initiated he

was confined in New York state. By virtue of prior offenses, including the Nevada burglary,

his New York status was that of multiple offender. With an eye to relief from this status, 16

years after the Nevada sentence, these proceedings were brought to have his conviction set

aside as unlawfully imposed and void. The time for appeal has long since expired. Habeas

corpus is not available to him in this state since he is not confined here. This court has already

refused certiorari to review the conviction proceedings. 70 Nev. 64, 254 P.2d 447. Appellant

in propria persona has now applied directly to the sentencing trial court for a determination

that the judgment was null and void and for an order vacating and setting it aside. His petition

having been denied he has taken this appeal from the trial court's action and counsel has been

assigned to represent him before this court.

[Headnote 2]

Appellant contends that he was neither represented by counsel at the time of arraignment

nor did he competently and intelligently waive his right to be so represented; that the court's

jurisdiction to proceed to ��


conviction and sentence accordingly was lost. Johnson v. Zerbst, 304 U.S. 458, 82 L.Ed.

1461, 58 S.Ct. 1019. The issue upon the merits of this contention is whether appellant

competently and intelligently waived his right to counsel. Upon this issue the burden rests

upon appellant, Johnson v. Zerbst, supra, and under the circumstances of this case it can

hardly be said that the burden has clearly been met. In response to inquiry by the court he

expressly rejected counsel. It also appears, however, that during the reported proceedings the

nature of his right to counsel was not fully explained to him by the court.

[Headnote 3]

We do not reach the merits of this contention, however. Our problem is a procedural one.

Our statutes make no provision for proceedings such as this after such a lapse of time as has

occurred here. Appellant in the court below proceeded in this matter by application for a

common law writ of error coram nobis. Upon this appeal the state contends that that writ is

not now available in this state. Even if it were, however, appellant before this court concedes

that the writ as known to the common law is not appropriate to the circumstances of this case

since the facts upon which he bases his contention that his conviction was void are a matter of

public record and the question is one of law rather than of newly discovered fact. The order of

the trial court from which this appeal is taken was as follows: “That the petition of the

defendant, Glenn N. Bigness, for a writ of error, coram nobis, be and the same hereby is in all

respects denied.” In the light of appellant's concession, this order can hardly be regarded as

error.

Appellant's principal contention upon this appeal is that if the trial court be affirmed, he is

without remedy in this state to set aside the judgment of conviction; that it is incumbent upon

every state to “provide corrective judicial process” to remedy the wrong from which he

suffers. Mooney v. Holohan, 294 U.S. 103, 79 C�J��


L.Ed. 791, 55 S.Ct. 340. He implies that it is the duty of this court to provide such

remedy—and in this proceeding.

[Headnote 4]

It cannot be said that this state has failed to provide corrective judicial process for post

conviction review. As in Mooney v. Holohan, the remedy of habeas corpus was available to

appellant at all times during his confinement in this state. The most that can be said is that

this state may have failed to provide corrective judicial process for post execution review or

for a review at this late date under the highly unusual circumstances which here exist. Such

lack of remedy, (if indeed there be such lack), can hardly be said to deprive appellant of due

process. If he is without remedy that fact can be attributed wholly to his own complete

indifference: his failure for 16 years to act in ascertainment and assertion of his rights. See

Harvey v. United States, 94 U.S. App.D.C. 303, 215 Fed.2d 330; People v. Vernon, 9 Cal.

App.2d 138, 49 P.2d 326. Under the circumstances, we must reject appellant's contention that

due process demands that we discover or legislate some procedure through which the

questionable merits of his contention can now be considered.

Affirmed.


____________

��71 Nev. 313, 313 (1955) Parks v. Phillips��

BRUCE N. PARKS, Appellant, v. DEAN PHILLIPS

and WILMA PHILLIPS, Respondents.

Nos. 3851-3852

November 16, 1955. 289 P.2d 1053.

Cross appeals from the Fifth Judicial District Court, Mineral County, Nevada; Wm. D.

Hatton, Judge.

Action by vendees under conditional sales contract against vendor who had repossessed

automobile, before default, under contract provision authorizing repossession if vendor

deemed himself or vehicle insecure. The jury returned a general verdict for the vendees, and

answered special interrogatories. The Fifth Judicial District Court, Mineral County, Wm. D.

Hatton, Judge, entered judgment upon the verdict, but granted the vendor a new trial on the

issue of exemplary damages. The parties filed cross-appeals, which were consolidated for

argument. The Supreme Court, Badt, J., held that where vendor had elected to stand on

contract after acquiring knowledge that vendees' credit rating with certain credit company was

not good, vendor could not justify repossession of automobile on ground that vendees' poor

credit rating had made him insecure.

All judgments and orders appealed from affirmed.

Diehl & Recanzone, of Fallon, for Appellant in No. 3851 and Respondent in No. 3852.

Wayne O. Jeppson, of Yerington, for Respondents in No. 3851 and Appellants in No.

3852.

1. Sales. Where vendor under conditional sales contract, upon credit company's refusal to finance contract because

of vendees' poor credit rating, had repossessed automobile, before default, under contract provision

authorizing repossession if holder deemed himself or vehicle insecure, evidence justified finding that

vendor acted unjustifiably, arbitrarily and capriciously, in view of fact that his ability to finance paper was

not part of contract.


2. Sales. Where vendor under conditional sales contract had elected to stand on contract after acquiring

knowledge that vendees' credit rating with certain credit company was not good, vendor could not justify

repossession of automobile on ground that vendees' poor credit rating had made him insecure, under

contract provision authorizing repossession if vendor deemed himself or automobile insecure.

3. Sales. Where conditional vendor attempts to repossess automobile under provision authorizing repossession if

vendor deems himself or vehicle insecure, vendor's action must be based upon good cause.

4. Sales. In action by conditional vendees against vendor who had repossessed automobile before default, under

contract provision authorizing repossession if vendor deemed himself or vehicle insecure, evidence

warranted jury's finding that vendor had not acted in good faith and in a reasonably prudent manner in

repossessing automobile, and, implicitly, that vendor did not have good cause for deeming himself

insecure.

5. New Trial. In action by conditional vendees against vendor who had repossessed automobile before default, under

contract provision authorizing repossession if vendor deemed himself or vehicle insecure, trial court's order

granting vendor new trial on issue of exemplary damages was sustained by record showing lack of malice,

oppression, or fraud.

6. Costs. Where cross appeals were consolidated for argument, and all judgments and orders appealed from were

affirmed, and record on appeal was used for both appeals, Supreme Court allocated cost of the record

equally between respondents in both appeals.

OPINION


The cross appeals were consolidated for argument. Upon vendor's repossession of an

automobile, under asserted covenants of purchase agreement, vendees sued for the return of

the car or its value, damages for the detention and exemplary damages. The vendor appealed

from the judgment entered on the jury's verdict in favor of the vendees on all items and from

the court's denial of new trial on the judgment for the value of the car ��


and the judgment for compensatory damages. The vendees appealed from the court's order

granting a new trial on the item of exemplary damages.

On April 21, 1953 appellant as vendor and Dean and Wilma Phillips as vendees entered

into a written conditional sale agreement of a 1951 Studebaker for $2,167.44, comprising the

items of $1,800 cash price, $175 insurance premiums and emergency benefits and $192.44

finance charges. Against this aggregate price the vendees were allowed a down payment

credit of $600, and the evidence discloses that this credit was made up by the turn-in of a

1941 Oldsmobile $345, cash $155, and a note for $100. The balance to the vendor, $1,567.44,

was payable in monthly installments of $74.64, commencing June 1, 1953. Delivery of all

items was made forthwith. The vendor attempted to finance the contract with Commercial

Credit Company which, however, refused to accept the paper because the vendees within the

past 30 days had surrendered another car because they were unable to make monthly

payments of $47.40 thereon. In the meantime the vendees had made a trip to Idaho in their

newly purchased car to visit a sick relative and had returned at the end of three days and just

about at the time of the unfavorable return from Commercial Credit Company. Thereupon, on

April 30, nine days after the execution of the contract and over a month before the first

monthly payment was due, the vendor repossessed the Studebaker in question, basing his

right to repossess the car upon (1) the vendees' breach of the covenant that the car would be

kept at Mina, and (2) upon the covenant giving him the right to repossess “if the holder

should deem itself or said car insecure.” Of the cash payment of $155, the sum of $44 was to

be used to make the final payment on the 1941 Olds turned in. A few days after the

repossession the vendor wrote the vendees: “We have the papers back on Olds now and any

time you can come in we can straighten up. The tires are still on [the Studebaker] car and will

have to stay there but we will make a financial settlement on them.” The reference ��6�� '#�&(�


to the tires was to the fact that the vendees had purchased two new tires to make the trip to

Idaho, at a cost of $56.90. This suggestion of the vendor was ignored by the vendees, who

went to their attorney and commenced the present action within two weeks thereafter.

The jury returned a general verdict in favor of the vendees as plaintiffs for the value of the

Studebaker car in the sum of $556, damages for loss of use of the car from April 30, 1953 to

date of trial (some 440 days) $500, and punitive damages in the further sum of $500. In

answer to special interrogatories the jury found (1) that the vendees had removed the car from

the state without permission; (2) that this did not constitute a breach of the contract; (3) that

the vendees had not made a false statement as to their credit; and (4) that the defendant

vendor was not acting in good faith and in a reasonably prudent manner in repossessing the

car from the plaintiff vendees.

In ruling on a motion for summary judgment the learned district judge said: “The said

defendant, in his said separate and affirmative defense, also alleges fraud and deceit on the

part of the plaintiffs. In his prayer, he asks for damages in the sum of $500.00 for such

alleged deceit. In the presence of fraud and deceit on the part of plaintiffs, the defendant

would have the right of election either to sue to rescind, or to stand on the contract and seek

compensation for such damages as he may have suffered by reason of the fraud, in addition to

seeking his other remedies under the contract. The defendant has chosen the latter course.”

Such election is clear, not only from the defendant's pleadings but also from his position

asserted during the trial and in his briefs filed with this court. It would be idle to speculate as

to what conclusion might have been reached in the district court and in this court had the

action been one for rescission, coupled with the undisputed offer of the vendor to call the

whole transaction off and to make the vendees whole.


[Headnotes 1, 2]

The crux of the jury's verdict would appear to be in their special finding that the defendant

was not acting in good faith and in a reasonably prudent manner in repossessing the car from

the plaintiffs. This in turn amounted substantially to a finding that in repossessing the car the

defendant had nothing to justify his conclusion that he deemed himself or the car to be

insecure and that in repossessing the car he had acted arbitrarily and capriciously. The jury

definitely found in answer to question 2 that the three-day trip to Idaho without the consent of

the contracting seller was not a breach of the terms of the contract. Undoubtedly it could be

said that in so finding the jury was using its judgment based on its common experience and

knowledge. The trip to Idaho was thus negatively disposed as a justification for Parks'

deeming himself insecure. That still left in the case the discovery of the fact that the credit of

the Phillipses with Commercial Credit Company was not good. Here again, however, we are

confronted by the fact, developed through the pleadings, the briefs, the position taken in open

court by defendant's counsel and as recognized in the rulings of the trial court, Parks did not

elect to rescind the contract but to stand on it despite the credit rating of the plaintiffs. By

choosing to stand on the contract after knowledge of the true state of vendees' credit rating,

the vendor must be held to have accepted this fact and cannot now assert it to justify a feeling

of insecurity. The vendor repossessed over 30 days before any default in payments by the

vendees. The purported breach growing out of the trip to Idaho having been disposed of, the

vendor's conclusion that he deemed himself insecure grows entirely out of the refusal of

Commercial Credit Company to finance the paper. But this was no part of the contract, and

the testimony was conflicting as to the understanding of the parties as to the necessity to turn

the paper or as to representations of their credit by the vendees. Nor had there been any

change of conditions in the meantime.


[Headnotes 3, 4]

The vendor contends that the testimony of both the vendees is wholly discredited; that they

often contradicted themselves and each other and changed their testimony in material

respects, and that in other respects it was definitely impeached and refuted; that the damages

awarded them by the jury in view of the entire picture of the residence of the vendees, their

financial situation, their former car purchasing experiences, their general improvidence, etc.

was fantastic. We have listened to these contentions with interest and sympathy and may say

frankly that a reading of the cold record might well have induced us (were we the triers of the

facts) to come to a far different conclusion as to the damage suffered by the Phillipses by

reason of Parks' repossession of the Studebaker. However, not only did the jury see, hear and

observe the witnesses, but the district judge likewise denied new trial of the two issues

indicated. That he was alert to the entire situation is evident from the fact that he granted a

new trial on the issue of punitive damages. We cannot agree with the contention of the

appellant that there is not a scintilla of evidence to support either the jury's verdict or the

district judge's denial of new trial. Parks repossessed the car over 30 days before a default in

payment because he felt himself insecure. That such deeming of himself to be insecure must,

as a justification for the repossession, have been based upon good cause is conceded by

appellant. Rochon v. Pac. Coast Mortg. Co., 111 Cal.App. 298, 295 P. 364, recently cited

with approval in Moore v. Wimmer, 77 Cal.App.2d 199, 174 P.2d 640. Implicit in the jury's

special finding that appellant was not acting in good faith and in a reasonably prudent manner

in repossessing the car is the finding that there was not good and proper cause for his

deeming himself insecure. Substantial evidence to support this finding is found (1) in the

repossession more than 30 days before any default in payments, (2) in the ��=��=�� :$;��.��=��


fact that no provision in the contract called for the vendees' assistance in the vendor's

refinancing of the contract, and (3) in the entire absence of showing of any breach or any

change in conditions—the adding of the two new tires having enhanced rather than

diminished the vendor's security. Supported by the trial judge's denial of a new trial, we are

not at liberty to disturb the finding. The same conclusion applies to the compensatory

damages resulting from the loss of the use of the car by the vendees.

[Headnote 5]

On the cross appeal of the vendees from the trial court's order granting a new trial of the

issue of exemplary damages, the lack of malice, oppression or fraud is so clear from the

record that we have no hesitancy in affirming the order and judgment in this respect.

The judgment in favor of respondents and against appellant in appeal No. 3851 in the sum

of $556 for loss of respondents' interest in the car and for $500 damages for loss of the use of

the car for a period of 440 days and the order denying a new trial of these two issues is

affirmed. The order granting the motion of the vendor, as respondent in No. 3852, for a new

trial of the issue of punitive damages in the sum of $500 is likewise affirmed.

Appellant presents several other assignments of error as grounds for reversal, but we do

not consider these of sufficient importance to warrant discussion.

[Headnote 6]

Judgments and orders appealed from all affirmed, with costs to respondents in No. 3851

and costs to respondent in No. 3852. As the record on appeal was used for both appeals, one

half the cost of the record may be included in respondents' costs in No. 3851 and one half in

respondent's costs in No. 3852.


____________

��71 Nev. 320, 320 (1955) Aeroville Corp. v. Lincoln County Power Dist. No. 1��

THE AEROVILLE CORPORATION, a Corporation, Appellant, v. LINCOLN COUNTY

POWER DISTRICT No. 1, a Municipal Corporation of the State of Nevada, Respondent.

No. 3864

December 9, 1955. 290 P.2d 970.


Department No. 3.

Action for condemnation of land for relocation of electric line. The trial court granted

condemnor a new trial on issue of damages, and condemnee appealed. The Supreme Court,

Merrill, C. J., held, inter alia, that under evidence, granting condemnor's motion for new trial,

based on excessiveness of award, was not clearly wrong.

Judgment affirmed.

Harry H. Austin, of Las Vegas, for Appellant.

Jo G. Martin, of Pioche, for Respondent.

1. Electricity. County power district's charter, giving it all powers necessary and requisite for accomplishment of

purpose, and power to acquire by eminent domain real and personal property, authorized district to change

location of its line. N.C.L. 1931-1941 Supp., secs. 5180.01-5180.18, 5180.08.

2. Eminent Domain. Where a power district has authority to change location of its line, and there is legal necessity for such

change, district may exercise eminent domain in behalf of such change.

3. Constitutional Law. Expediency of constructing a particular public improvement ordinarily is not a judicial question, and

courts will not interfere unless it clearly appears that legislative discretion has been abused and that

proposed improvement is not in public interest.

4. Eminent Domain. Where power district's line ran so near airfield that there were instances when service was interrupted by

airplanes striking line, there was legal necessity for change of line, and exercise of eminent domain on

behalf of such change was authorized.


5. Eminent Domain. Choice of lands to be used for a particular public improvement generally lies within discretion of agency

exercising right of eminent domain, and such discretion will be respected save where malice or lack of

good faith appears or where oppressive overreaching or public injury results.

6. Champerty And Maintenance. That United States had agreed to reimburse power district for cost of relocation of electric line away from

United States' airfield did not make district a party to champerty and maintenance on part of United States,

or preclude district from participating in suit arising from exercise of eminent domain on behalf of

relocation of line.

7. Appeal And Error. Unless determination of trial judge granting new trial was clearly wrong, exercise of discretion must be

respected.

8. Eminent Domain. Under evidence in action for condemnation of land for relocation of electric line, trial judge's action in

granting condemnor's motion for new trial, based on excessiveness of award, was not clearly wrong.

OPINION


This is an action for condemnation of land through right of eminent domain brought by

Lincoln County Power District No. 1 against the Aeroville Corporation of Clark County. In

the trial below the jury found for condemnation and fixed damage to the defendant for the

taking at $10,000. The trial judge, feeling this award to be excessive, granted new trial upon

this issue. Aeroville has taken this appeal from the judgment of condemnation and from the

order granting new trial.

Upon its appeal from the judgment, Aeroville first contends that a taking of land for the

purpose here involved is not permitted by the law of this State. Section 9153, N.C.L. 1929,

Supp. 1931-1941, provides: “Subject to the provisions of this chapter, the right of eminent

domain may be exercised in behalf of the following public uses: * * * 8. Telegraph,

telephone, electric light, and electric power lines, and sites for electric light and power plants.

* * *.”


The condemnation here involved is for the purpose of partial relocation of a high-voltage

power line which extends from Hoover Dam to the Pioche Mining District in Lincoln County.

The line was originally located in 1936. Based upon a line of authority exemplified by In Re

Poughkeepsie Bridge Co., 108 N.Y. 483, 15 N.E. 601 and Lusby v. Kansas City M. & B. R.

Co., 73 Miss. 360, 19 So. 239, 36 L.R.A. 510, Aeroville contends for the rule that in the

absence of express statutory authority the right of eminent domain is exhausted by the

original location and that no right to condemn land for a relocation exists.

In our view the rule of these cases is simply that unless the condemnor has the right to

change the location of its line, land cannot be condemned for such a purpose. In these cases it

was clear that no such right existed. In both cited cases, for example, the corporate charter as

granted by legislative act expressly required that the corporation select its proposed route and

file for public record a map of that route within a given period of time. It was given no power

to place its facilities elsewhere and under the expressed limitations upon its choice of site no

such power could reasonably be implied. As stated by the New York court in the

Poughkeepsie Bridge case, “This we think exhausted its power of choice and the location so

made was final and could not be changed in the absence of legislative authority.” The purpose

of the proposed condemnation was, then, unlawful.

No such limitation upon its power of choice is to be found in the charter of the Lincoln

County Power District. That district was incorporated pursuant to the provisions of the Power

District Law of Nevada, Secs. 5180.01-5180.18, N.C.L. 1929, Supp. 1931-1941. The powers

of districts so created are by the act itself stated in extremely broad terms. Section 5180.08

provides, “Any district created pursuant to the provisions of this act shall be vested with all

the powers necessary and requisite for the accomplishment of the purpose for ��


which such district is created, capable of being delegated by the legislature. No enumeration

of particular powers herein created shall be construed to impair or limit any general grant of

power herein contained nor to limit any such grant to a power or powers of the same class or

classes as those enumerated. The district is empowered to do all acts necessary, proper or

convenient in the exercise of the powers granted under this act.” In the same section, among

the particular powers set forth is the following, “To acquire by * * * exercise of the power of

eminent domain * * * real and personal property of every kind within or without the district

* * *.”

[Headnotes 1, 2]

There can be no doubt that under such broad authorization the district had full power to

change the location of its line. Assuming legal necessity for such change to exist, there can be

no doubt that an exercise of the right of eminent domain in behalf of such change was proper.

Wallace v. City of Winfield, 98 Kans. 651, 159 P. 11; Burkhard v. Pennsylvania Water Co.,

234 Pa. 41, 82 A. 1120; Bogert v. Hackensack Water Co., 101 N.J.L. 518, 129 A. 138.

Aeroville next contends that no legal necessity for the change of location has been shown

to exist and that condemnation for this reason was unauthorized.

It appears that at the time of commencement of this suit the existing line was in the

immediate vicinity of the Nellis Air Force Base of the United States Government in Clark

County and actually crossed a proposed extension of the aircraft zone of approach to the

landing field. A series of aircraft accidents resulting from collisions with the power line in the

neighborhood of the field had led the United States to insist upon a change of location.

Aeroville contends that unless the United States itself had condemned and taken the old

power line right of way, these facts may not be asserted by the district to establish necessity

for its taking.

Regardless of the merits of this contention, however, ��K��@��


the district does not rely upon the needs of the United States, but has established its own case

of necessity for relocation. The aircraft collisions with its power line had resulted in

disruptions of its service which were far from trivial. Such a condition, if permitted to

continue, would clearly affect, if not seriously frustrate, the purposes for which the district

had been organized. A retaining of its power line across the aircraft zone of approach to the

field might well be expected to increase substantially the extent of service interruption.

[Headnotes 3, 4]

The expediency of constructing a particular public improvement ordinarily is not a judicial

question, but a political one for the judgment and discretion of the agency to which authority

has been delegated by the legislature. Courts generally will not interfere unless it clearly

appears that such discretion has been abused and the proposed improvement is not in the

public interest. See: Schrader v. Dist. Ct., 58 Nev. 188, 73 P.2d 493; 18 Am.Jur. 734,

Eminent Domain, Sec. 107. Certainly this cannot be said to be the case here. The district has

amply supported its exercise of discretion.

[Headnote 5]

Aeroville next complains that the route of the relocation is poorly and extravagantly

selected; that it fails to follow section lines and in other respects completely disregards the

interests of those whose property it crosses. It is well settled, however, that the choice of

lands to be used for a particular public improvement generally lies within the discretion of the

agency exercising the right of eminent domain and that such discretion will be respected save

where malice or lack of good faith appears or where oppressive overreaching or public injury

results. State v. Pinson, 66 Nev. 227, 207 P.2d 1105; Goldfield Consolidated Milling &

Transportation Company v. The Old Sandstorm Annex Gold Mining Company, 38 Nev. 426,

150 P. 313; Overman Silver /��3��3�� !'�B��!0


Mining Company v. Corcoran, 15 Nev. 147. We must, then, reject Aeroville's contention.

Aeroville next contends that in this suit the district improperly is party to champerty and

maintenance on the part of the United States. The record demonstrates that the government

has agreed to reimburse the district for the cost of relocation. Aeroville contends that the

United States is, therefore, in the position of financing and sponsoring this litigation.

[Headnote 6]

It cannot be said that the district itself is without substantial interest in the proceedings.

Furthermore the government has agreed not to finance a law suit, but to reimburse the district

for the cost of relocation, including surveying and construction of the relocated line, the

obtaining and paying for voluntary easements and other necessary and incidental expense

involved in moving the line. At the time the agreement was reached it could not have been

known that this litigation would result. The government, then, cannot be said to be

intermeddling through stirring up litigation and strife in a matter which should be of no

concern to it. No one could deny that it has a necessary interest in the subject of the

agreement and that that subject is proper. The contention is wholly without merit.

Upon the issues raised by the appellant the judgment of condemnation must be affirmed.

[Headnote 7]

Upon its appeal from the order granting new trial Aeroville contends that the evidence as

to damage clearly preponderates in favor of the jury's verdict fixing that damage at $10,000;

that it was, therefore, an abuse of judicial discretion to grant a new trial upon the issue of

damage. In the view of the trial judge a clear preponderance of the evidence demonstrated

that the jury's award was excessive. As this court recently pointed out in Arrowhead Freight

Lines v. White, 71 B��"' �"4 �5�"�� !4 ��


Nev. 257, 287 P.2d 718, it is not for us to determine in which direction the evidence

preponderates. Unless the determination of the trial judge was clearly wrong his exercise of

discretion must be respected.

[Headnote 8]

The record demonstrates a substantial difference of opinion as to value of the property

condemned. Witnesses for Aeroville placed a comparatively high value upon the property,

basing opinions upon expectation of future development of the area involved, which area is

now undeveloped desert land. Witnesses for the district placed a comparatively low value,

basing their opinions upon recent sales of land in the area involved. The opinions of the latter

witnesses amply support the trial judge in his view that the jury award was excessive. It

cannot, then, be said that he was clearly wrong.

The order granting new trial is affirmed. Subject to that order, the judgment of

condemnation is affirmed. Costs to respondent.


____________

��71 Nev. 326, 326 (1955) Gunter v. Miller��

CLIFF GUNTER, Appellant, v. M.L. MILLER, J.W. MILLER, Pioneer Title Insurance &

Trust Company, Respondents.

No. 3861

December 12, 1955. 290 P.2d 755.


Department No. 3.

Action for specific performance of contract by father and son to sell realty. From a

judgment for defendant on theory that father had no authority to sign agreement for son,

plaintiff appealed. The Supreme Court, Merrill, C. J., held that since son had actually

executed a deed, father could not deny authority to act for son or rely on general rule that

execution of instruments by ��*��


some of several parties is on implied condition that it will be executed by others.

Reversed and remanded for new trial.

Michael L. Hines, of Las Vegas, for Appellant.

Morse, Graves & Compton; and McNamee & McNamee, of Las Vegas, for Respondent.

Principal And Agent; Vendor And Purchaser.

Where father, acting for himself and as son's attorney in fact, executed contract to sell realty owned

by father and son, and son executed deed but father refused to sign and repudiated the agreement, father

could not resist enforcement of contract on theory that he had no authority to sign for son, nor under rule

that execution of instrument by some of several parties is on implied condition that it will be executed by

others.

OPINION


This is an action for specific performance of a contract for sale of real property situated in

Clark County and owned by M. L. Miller and J. W. Miller, his son. The agreement was

reached between Gunter, the purchaser, and M. L. Miller and its terms were set forth in

writing in the form of escrow instructions given to Pioneer Title Insurance & Trust Company

which instructions were signed by both parties. Since an interest in the property was owned

by Miller's son, the father signed the writing for his son, purporting to act under a power of

attorney as his attorney in fact. Gunter paid the agreed purchase price into escrow. A deed to

the property was sent to the son for his signature, was signed by him and returned to the

escrow holder. M. L. Miller then refused to sign the deed and repudiated the agreement. This

action was brought by Gunter to enforce the agreement against M. L. Miller. Miller asserts in

defense that no enforceable contract ever �*�� *��


existed since he had no authority to sign for his son and the agreement was, therefore, never

completely executed. Such was the holding of the trial court. Gunter has taken this appeal

from judgment.

We believe the trial court was in error. The escrow instructions clearly demonstrate a

meeting of the minds of the two parties, Gunter and M. L. Miller. Miller relies upon the

general rule that where an instrument constituting an agreement is drawn for the signature of

several parties it is not binding upon any until all have signed; that those who in fact execute

the instrument do so on the implied condition that it is to be executed by the others; that until

so executed the agreement is incomplete and inchoate. See 17 C.J.S. 411, Contracts, sec. 62

(a).

We very much doubt that Miller can properly contend that his signature was subject to

such an implied condition under the facts of this case. In no event, however, can the general

rule be held applicable here. The reason for the rule does not exist under the facts. We may

assume for the purposes of this opinion that the father did not intend to commit himself to the

agreement unless and until the son likewise should have committed himself and that the

commitment of the father to this extent was conditional. In this case, however, the son has

committed himself to the agreement in the most effective possible way. He has actually done

everything his father on his behalf had promised he would do. The condition subject to which

the father committed himself has, then, been met and his obligation is enforceable. He may

not escape by denying the authority he represented himself to have. That authority is no

longer of concern to anyone. The promised act, regardless of the authority to promise it, has

actually been performed.

The judgment of the trial court based on the proposition that there was no contract

between Gunter and M. L. Miller must be reversed.

In his answer M. L. Miller also alleges that he entered ��,��,��=��


into the contract under certain misconceptions; that his agreement was secured by fraud or

mistake; that the agreement and the son's deed should, therefore, be canceled. The issues

upon these propositions were never reached by the trial court due to its determination that no

contract ever existed. A new trial should be had so that determinations may be had upon these

questions.

Reversed with costs to appellant and remanded for new trial.


____________

��71 Nev. 329, 329 (1955) Scott v. Chapman��

CHARLES M. SCOTT, Individually and as Guardian Ad Litem for Clara Lucille Scott, a

Minor; LUCILLE H. SCOTT and DANIEL W. GATLYN, Appellants, v. CHARLES A.

CHAPMAN, Respondent.

No. 3820

December 15, 1955. 291 P.2d 422.


Department No. 2.

Action to recover for death occurring in automobile upset while defendant was driving.

From a judgment on jury verdict for defendant, plaintiff appealed. The Supreme Court,

Eather, J., held that plaintiff waived any error resulting from jury's failure to answer special

interrogatories where plaintiff failed to call such failure to attention of court and failed to

make request that jury be directed to answer interrogatories, even though jury, upon return

from deliberations, returned verdict and unanswered interrogatories to judge who made no

comment with respect to interrogatories.


Appeal from judgment and sundry orders after judgment.


Royal Stewart, Richard W. Horton, both of Reno, for Appellants.

Vargas, Dillon & Bartlett, of Reno, for Respondent.

1. Trial. Plaintiff waived any error resulting from jury's failure to answer special interrogatories where plaintiff

failed to call such failure to attention of court and failed to make request that jury be directed to answer

interrogatories, even though jury, upon return from deliberations, returned verdict and unanswered

interrogatories to judge who made no comment with respect to interrogatories. Rules of Civil Procedure,

Rules 46, 49(b).

2. Trial. Where plaintiff had offered defendant's deposition in evidence, deposition had been admitted and read

in its entirety, defendant's counsel could properly, in arguing from evidence, reread portion of deposition

to jury.

3. Appeal and Error. In action to recover for death resulting from automobile upset while defendant was driving, any

prejudice to plaintiff resulting from trial court's permitting defendant to answer question respecting

drowsiness at time accident occurred as allegedly inviting conclusion that defendant could safely operate

automobile under circumstances was eliminated by defendant's counsel's repudiation in open court of any

such interpretation of question and answer.

OPINION


This appeal is taken by the plaintiffs below from a jury verdict in favor of the defendant in

an action for wrongful death resulting from an auto upset which occurred while defendant

was driving. The parties will be referred to as they were designated in the lower court.

The principal assignment of error is directed to the sufficiency of the jury verdict. Upon

their retirement the jury was handed form of general verdict together with special

interrogatories which they were directed to answer. The jury brought in a general verdict in��


favor of defendant but failed to answer the interrogatories. At the request of defendant the

jury was then polled.

Judgment was duly and regularly pronounced by the court and entered and recorded in full

in the minutes by the clerk, and there being no reservation for argument or further

consideration and no stay of proceedings, the court ordered, adjudged and decreed that the

plaintiffs take nothing by their complaint, and the defendant have judgment against the

plaintiffs for his costs and disbursements incurred in the action.

Defendant contends that plaintiffs waived their right to have the interrogatories answered

through failure to make objection or request before entry of judgment. Rule 46, Nevada Rules

of Civil Procedure.

[Headnote 1]

The authorities seem to be practically unanimous on the proposition that any error

resulting from failure of the jury to answer special interrogatories is waived unless the party

at the time the verdict is returned calls the matter to the attention of the court and makes

proper and timely request that the jury be directed to answer the special interrogatories. 24

Cal.Jur. 908; Benson v. Southern Pac. Co., 177 Cal. 777, 171 P. 948, 64 C.J. 1188, sec. 978;

89 C.J.S., Trial, sec 572.

In the case of Van Damme v. McGilvray Stone Co., 22 Cal.App. 191, 133 P. 995, it is

stated: “At the conclusion of the trial, which was had with a jury, and in submitting the case

the court concluded its charge as follows: ‘If you return a general verdict in favor of plaintiff,

you will also return your verdict on the special issue which I now submit to you as follows:'

* * * Upon returning into court with the verdict, the following proceedings were had. * * *

‘The Clerk: Gentlemen of the jury, have you agreed upon a verdict? (Clerk receiving verdict

from foreman and handing it to the court.) The Court: That is the only verdict you brought in?

Mr. Morris (the foreman): The jury declined to ��


answer the other question. The Clerk: Gentlemen of the jury, listen to your verdict as it now

stands recorded. “We the jury in the above-entitled cause, find a verdict for the plaintiff for

the sum of $900.” Mr. Jarman: (one of the attorneys for appellant) I would like to have the

jury polled. The Court: Poll the jury. (All the jurors answer that the above verdict is his

verdict.) Mr. Jarman: Q. Was there any finding upon the special issue? The Court: They

declined to find upon that question. Do you desire that they should find on it? If so, will send

them back. Mr. Jarman: The record shows that they declined to find upon it. The Court: Let

the record show that the jury declined to find upon that subject.' (Jury discharged.)

“In addition to the above, affidavits were filed by the respective counsel as to this matter.

These were filed and used on the motion for a new trial; but as we view the matter they shed

no additional light on the question and serve no useful purpose in determining the real point

in controversy.

“For the sole reason that the jury ‘declined to find on the special interrogatory' submitted

by the court, the appellant contends that it is entitled to a new trial. We are unable to agree

with this contention. On the face of the record, argument seems superfluous. It creates an

abiding conviction that the matter was permitted to stand as originally returned by the jury

with a view of thereafter reaping any technical advantage that might result by reason of the

situation. The parties should be compelled to resort to a new trial only after all the resources

of the court administered within the law have been exhausted in a conscientious effort to

finally determine all the questions at issue in any pending litigation. A fair interpretation of

the proceedings above set out leads inevitably to the conclusion, as it appears to us, that the

appellant waived the right to have the jury pass upon the particular interrogatory submitted to

it. Certainly the widest latitude of construction would not ��=��


warrant us in holding that the conduct and language of appellant's counsel amounted to an

objection to the course pursued by the trial court. To resolve either of these alternatives

against the appellant is to sustain the verdict of the jury and affirm the action of the trial court

in refusing another trial.

“If the defendant's counsel waived by his conduct or language the right to insist upon an

answer to the question, or if he failed at the opportune time to object to the acceptance and

recordation of the verdict, he cannot at this time be heard to complain. He contends that he

had no knowledge prior to the recordation of the verdict that the jury had not found upon the

particular interrogatory submitted. The record not only does not substantiate this position but

is directly contradictory thereof. Upon receiving the verdict from the foreman, the court

questioned, ‘That is the only verdict you brought in?' to which question, and before the

verdict was returned to the clerk to be recorded in the minutes, the foreman replied, ‘The jury

declined to answer the other question.' We are of the opinion that it would be immaterial

whether he received this information before or after the announcement by the clerk of the

formal recordation of the verdict. We are fully satisfied that the court retains entire control of

the proceedings up to the time that the jury is finally discharged from further consideration of

the case, and that had the jury been returned to the jury room for further deliberation, as

suggested by the court, after the formal announcement by the clerk that the verdict was

recorded, no substantial error would have resulted, and neither side thereafter could have

successfully predicated error on the action of the court.” Accord: Crowe v. Sacks, 44 Cal.2d

590, 283 P.2d 689 at 693; Harker v. Southern Cal. Edison Co., 83 Cal.App. 204, 256 P. 848

at 851; Asebez v. Bliss et al., 178 Cal. 137, 172 P. 595 at 596; Brown v. Regan, 10 Cal.2d

519, 75 P.2d 1063 at 1066.


In the case at bar, upon the jury's return from deliberations, the verdict and unanswered

interrogatories were handed to the judge who made no comment with respect to the

interrogatories. The jury's neglect in this respect was not noted by counsel for plaintiffs until

the verdict had been recorded, the judgment entered and the jury discharged. Therefore no

objection to the entry of the verdict was made and no request was made of the court that it

require the interrogatories to be answered.

Plaintiffs contend that since they had no knowledge of the fact that the interrogatories were

unanswered they cannot be held to have suffered a waiver; that they had every right to assume

that the judge would fulfill his duty in the event the interrogatories were unanswered.

However, counsel for the plaintiffs knew that the interrogatories had been submitted to the

jury. They were aware of the provisions of Rule 49 (b) N.R.C.P. with respect to such

interrogatories and were aware that important rights and procedural alternatives depended

upon the existence or lack of consistency between the interrogatories and the general verdict.

Counsel knew that if any of those rights were to be asserted or alternatives elected the

assertion and determination should be made before the entry of judgment and discharge of the

jury.

Counsel, then, were under a duty to advise themselves as to the status of the interrogatories

and cannot now plead ignorance. Failure to inquire, in and of itself, indicated an intention not

to rely upon any inconsistency or error which the answers to the interrogatories might reveal.

In itself this silence constituted waiver.

[Headnote 2]

Plaintiff next contends that error was committed in permitting counsel for defendant to

read to the jury a portion of defendant's deposition which had earlier ��


been offered by plaintiff, admitted and read in its entirety. Plaintiff contends that this

constituted prejudicial and undue overemphasis of the portion read and that under the rules of

procedure no such use of a deposition is permitted. We feel that there is no merit in this

contention. Counsel for defendant did not offer the portion in evidence and was doing no

more than to argue from the evidence as they might repeat portions of the testimony or read

an exhibit.

[Headnote 3]

Plaintiff next contends that error was committed in permitting defendant to answer a

question respecting drowsiness at the time the accident occurred. Plaintiff contends that the

question invited the conclusion of the defendant that he could with safety operate a car under

the circumstances and that the question thus invaded the province of the jury. Any such

construction of the question and the answer given by the witness was later in open court

repudiated by counsel for the defendant and any prejudice which might have resulted was in

our view eliminated by counsel's explanation and limitation of the subject of the inquiry.



____________

��71 Nev. 336, 336 (1955) Gordon v. Cal-Neva Lodge, Inc.��

T.C. GORDON, Appellant v. CAL-NEVA LODGE,

Inc., Respondent.

No. 3847

December 16, 1955. 291 P.2d 1054


Department No. 2.

Action for injuries sustained by business visitor when he bumped his head after entering

telephone booth located upon defendant's premises. From an order of involuntary dismissal,

plaintiff appealed. The Supreme Court, Merrill, C. J., held that business visitor, noticing that

door of telephone booth located upon defendant's premises was of less than standard size, was

not negligent as a matter of law in assuming that remainder of telephone booth was of

standard proportions.

Reversed and remanded for further proceedings.

Stewart and Horton, of Reno, for Appellant.

Woodburn, Forman, Wedge, Blakey & Thompson, of Reno, for Respondent.

1. Trial. In determining propriety of involuntary dismissal at completion of plaintiff's case, plaintiff's evidence and

all inferences that reasonably can be drawn from it must be deemed admitted, and evidence must be

interpreted in light most favorable to plaintiff, regardless of whether judge or jury be trier of fact.

Fed.Rules Civ.Proc. Rule 41(b), 28 U.S.C.A.

2. Negligence. A business visitor ordinarily has right to presume that premises may safely be put to purposes for which

they are furnished.

3. Negligence. Business visitor, noticing that door of telephone booth located upon defendant's premises was of less than

standard size, was not negligent as a matter of law in assuming that remainder of telephone booth was of

standard proportions.


OPINION


This is an appeal taken by the plaintiff below from an order of involuntary dismissal of the

action entered by the trial judge. The case was tried to the court below without a jury. Under

Rule 41(b) N.R.C.P. the order was entered after plaintiff had completed presentation of his

evidence on the ground that upon the facts and the law plaintiff had failed to prove a

sufficient case for the court. Upon this appeal the plaintiff contends that a sufficient case had

been proved and that the court thus was in error in ordering involuntary dismissal.

[Headnote 1]

Upon this issue plaintiff's evidence and all inferences that reasonably can be drawn from it

must be deemed admitted and the evidence must be interpreted in the light most favorable to

plaintiff. Corn v. French, 71 Nev. 280, 289 P.2d 173. It is conceded that this well-recognized

rule applies whether the trier of fact be judge or jury. McCafferty v. Flinn, 32 Nev. 269, 107

P. 225. 1

Plaintiff's evidence establishes the following facts: He suffered injury by bumping his head

after entering a telephone booth located upon defendant's premises. Plaintiff stands six feet,

four inches tall. The door of the booth was five feet, ten and three-quarter inches high. A

standard interior door is six feet, eight inches ��

____________________

1

In this respect N.R.C.P. differs from the federal rules which provide that in a trial before a court without a

jury the court, on granting involuntary dismissal, may properly determine all factual questions, make findings

and render judgment on the merits. Fed. Rules Civ. Proc. Rule 41(b), 28 U.S.C.A. These provisions were

eliminated from our Rule 41(b). With reference to this matter the advisory committee notes read as follows:

“The purpose is to retain existing Nevada law so that every inference in favor of the plaintiff must be drawn

upon a motion to dismiss. The court though acting without a jury is not to consider weight or credibility upon

this motion.”


high. The header or top portion of the doorframe of the booth was unusually wide, extending

into the booth 11 inches. A standard header, the width of the doorframe, is six and

five-eighths inches wide. Before entering the booth plaintiff observed the fact that the door

was not of normal height and was fully aware of the fact that he would have to stoop to enter

the booth. He was unaware of the fact that the header was of greater than normal width. This

fact was not apparent to him since it was obscured at first by the closed door of the booth and,

once that door was opened, remained obscured by the outer doorframe. It could only have

been noted by plaintiff by looking up as he entered the booth in a stooped position. After

entering he “raised up” as he ordinarily would have “raised up” and struck his head with force

on the header. This was not an uncommon occurrence in this booth. One of defendant's

employees testified to seeing 50 to 60 persons bump their heads on entering the booth. There

was no warning sign posted and plaintiff had received no other form of warning.

[Headnotes 2, 3]

Defendant concedes that plaintiff was a business visitor, that defendant was aware of the

structural characteristics of the booth and that, interpreted most favorably to plaintiff, the

evidence is sufficient to show negligence on the part of defendant. Defendant's sole

contention on this appeal is that plaintiff was guilty of contributory negligence as a matter of

law in failing to ascertain the fact that the doorheader constituted a hazard. Defendant

concedes that a business visitor ordinarily has the right to presume that premises may safely

be put to the purposes for which they are furnished. Defendant contends, however, that since

plaintiff had notice that the door itself was not of standard size he had no right to assume that

the remainder of the booth was of standard proportions; that on the contrary he was put on

notice, since the door was not standard, ��


that the remainder of the component parts of the booth might well depart from standard.

Defendant has given us no authority in support of this proposition as a matter of law. It is

not contended that there is any structural connection between a low door and a wide header;

the one does not necessarily or reasonably lead to the other and thus warn of the other. That a

person observing one defect should be alert to other unrelated defects might well be argued to

a jury. We cannot, however, agree with defendant that this proposed rule of reasonable

conduct can be held to be an established standard as a matter of law and that failure to meet

such standard should, as a matter of law, constitute contributory negligence. In our view the

question remains one of fact as to what a reasonable man should have anticipated on noting

that the door was not of standard height. Upon this question, having in mind 50 to 60 bumped

heads, we are convinced that reasonable men might well differ.

Upon the plaintiff's evidence, then, factual issues remained to be resolved which, on

motion for involuntary dismissal under N.R.C.P., must be considered resolved in favor of

plaintiff. The court, then, was in error in entering its order.

Reversed with costs to appellant and direction that the order of dismissal be set aside and

for further proceedings.


____________

��71 Nev. 340, 340 (1955) State v. Means��

STATE OF NEVADA, Appellant, v. PERRY

G. MEANS, Respondent.

No. 3857

December 21, 1955. 291 P.2d 909.

Appeal from a judgment on the pleadings, First Judicial District Court, Ormsby County;

Frank B. Gregory, Judge.

Action by an architect for extra services performed in connection with his contract to

design and supervise construction of a state office building. The trial court entered judgment

for architect on the pleadings for one cent less than the amount prayed for in his complaint,

and state appealed. The Supreme Court, Badt, J., held that where a paragraph in state's answer

stated that state, “denies all and singular the allegations” contained in Paragraph V of

architect's complaint which paragraph pertained to an itemization and totalling of the amount

due architect, such paragraph of state's answer, even if the allegations in the complaint were

to the effect that there was due architect not only the total asked for, but also, impliedly, every

part of said sum up to and including the total, put in issue all of the express and implied

allegations contained in Paragraph V of complaint.


Harvey Dickerson, Attorney General, William N. Dunseath and D. W. Priest, Deputy

Attorneys General, for Appellant.

Harry D. Anderson and Robert E. Berry, of Reno, for Respondent.

1. States. Where a paragraph in state's answer to architect's complaint for extra service performed in connection

with its contract to design and supervise construction of a state office building, stated that state, “denies all

and singular the allegations” contained in Paragraph V of architect's complaint, which paragraph pertained

to an itemization and totalling �� =�� *��5��D��

��71 Nev. 340, 341 (1955) State v. Means��

of the amount due architect, state's answer, even if such allegations were to the effect that there was due

architect not only the total asked for, but also, impliedly, every part of said sum up to and including the

total, put in issue all of the express and implied allegations contained in Paragraph V of complaint. N.C.L.

1929, secs. 8602, 9412.

2. Pleading. Where plaintiff is not misled by a denial's ambiguity, evasiveness, or its misleading characteristics, courts

are not disposed to regard objection to the denial favorably.

3. Pleading. Where architect in action to recover for extra services performed in connection with his contract to

design and supervise construction of a state office building, spent two days in trial in attempting to prove

his case, and then advanced the point that state's answer constituted a negative pregnant entitling him to his

entire demand, less one cent, without presenting any evidence at all, negative pregnant rule was not

applicable.

OPINION


This appeal presents the question as to whether the trial court erred in entering a judgment

for plaintiff on the pleadings. The action was pending before the effective date of the Nevada

Rules of Civil Procedure and, in view of the conclusions we have reached, we need not

consider the applicability of Rule 86 N.R.C.P. to the effect that they shall govern further

proceedings in pending actions except when not feasible or when they would work injustice.

The state's appeal is also from an order denying its motion for new trial, in which the same

points are raised. We refer to the parties as they appeared in the court below.

In April, 1949, plaintiff, respondent here, was employed by the state, under the terms of a

written contract, as architect to design and supervise the construction of the Nevada state

office building in Carson City and, having performed this service, was paid the contract price

of $19,100. He thereafter presented his claim for extra compensation for extra services, and

upon rejection thereof commenced this action. The first count of ��' "0"�44��*��

��71 Nev. 340, 342 (1955) State v. Means��

his complaint alleged an indebtedness of $5,242.88 for extra services in connection with a

number of change orders made during construction. A second count, alleging an indebtedness

of $27,940.88, in addition to the money theretofore paid, for his services in connection with

the entire employment, was disposed of by a summary judgment for defendant and is not

involved in this appeal.

At the trial, upon the conclusion of presentation of plaintiff's case and after the ordering of

summary judgment for defendant on plaintiff's second count, defendant called its first

witness, at which point plaintiff objected to presentation of any evidence by the defendant in

connection with plaintiff's first cause of action on the ground that defendant's answer was an

admission of the allegation that $5,242.88 was due plaintiff for his services.

Paragraph V of the complaint alleged:

“That the total amount now due to plaintiff from the State of Nevada for extra services in

connection with the above mentioned contracts is as follows:

“In connection with Change Orders, as hereinbefore alleged $3,242.88

“For extra supervision, as hereinbefore alleged 2,000.00

_________

“Total sum due plaintiff $5,242.88”

Paragraph V of the answer is as follows: “Answering paragraph V of plaintiff's first cause

of action, defendant denies all and singular the allegations therein contained.”

The court sustained the objection to the introduction of evidence by the defendant and

thereupon granted plaintiff's motion for judgment on the pleadings in the sum of $5,242.87,

basing his ruling upon “the recognized rule of pleading under the codes, the time this answer

was filed * * * that the denial of the general sum without further limitation is an admission of

any lesser sum.”

��71 Nev. 340, 343 (1955) State v. Means��

[Headnote 1]

(1) In this we feel that the court was in error. As future cases will undoubtedly be tried

under N.R.C.P., which became effective January 1, 1953, and there is little chance that this

opinion may serve as precedent for future cases, a brief disposition of the matter should

suffice. This court has indeed recognized that in the typical and classic examples a “negative

pregnant” may exist which constitutes a substantial admission. See Blackie v. Cooney, 8 Nev.

41; Carlyon v. Lannan, 4 Nev. 156; Peardon v. Peardon, 65 Nev. 717, 763, 201 P.2d 309,

332. Here, however, defendant denies all and singular the allegations contained in the

paragraph. Sections 9412 and 8602, N.C.L. 1929, we think, recognize that this is sufficient to

put all of the allegations of the paragraph in issue. If the plaintiff's allegation is to the effect

that there is due him not only the sum of $5,242.88 but also, impliedly, every part of said sum

up to and including $5,242.87, the denial, by the same token, traverses such implied

allegation as well as the express allegation. Peters v. McPherson, 62 Wash. 496, 114 P. 188.

Although defendant seeks to distinguish this case (because he feels that the court was

confused in treating as a general denial, a specific denial couched in general terms), he

recognizes that a negative pregnant cannot be found in a general denial. 41 Am.Jur. 429,

Pleading, sec. 196. We may note in passing that respondent in moving for a judgment on the

pleadings insisted that paragraph V of the answer was a general denial and the learned district

judge agreed that it was a general denial. Whether or not we agree with such conception, the

reasons for the rule expressed in Peters v. McPherson, supra, would seem to apply with equal

force to the denial couched in the language found in paragraph V in the answer. We are

accordingly bound to conclude that paragraph V of the answer put in issue all of the express

and implied allegations contained in paragraph V of the complaint.

[Headnotes 2, 3]

(2) In close connection with the determination as to ��=��

��71 Nev. 340, 344 (1955) State v. Means��

whether allegations are placed squarely in issue by an effective denial is the consideration of

the denial's ambiguity, its evasiveness, its misleading characteristics, by reason whereof the

plaintiff has been misled. Where such does not appear, courts are not disposed to regard the

objection favorably. 71 C.J.S. Pleading, sec. 151, 320, and cases cited; anno. Ann.Cas. 1917,

668, 674. That the plaintiff could not have been misled in the present instance is apparent.

Paragraph VII of the complaint alleged plaintiff's presentation of his claim, as required by

law, to the state board of examiners, that such board had rejected the same and that the whole

amount of the claim remained due and unpaid. Paragraph VII of the answer admitted the

presentation of the claim and the disallowance thereof, but “denies that the sums, all as

alleged in plaintiff's complaint, or any sums, are due and owing by the defendant to the

plaintiff.” Emphasis supplied. It took two days to try the case. Four witnesses were examined

at length and the transcript of the testimony and the proceedings up to the time of the

presentation of plaintiff's motion comprises some 108 pages, some 32,000 words. Plaintiff

insisted that his cause of action was on quantum meruit. The court analyzed the situation by

declaring: “During the course of the construction it is alleged that [plaintiff] performed

certain extra and additional services in connection with twenty-four change orders. That is

denied.” Plaintiff asked defendant to stipulate for the admission in evidence of eleven change

orders and this was done. Plaintiff then testified to the custom of the architect's profession

that the architect receive additional compensation for such changes ordered by the owner and

for his services actually performed thereunder. By other witnesses plaintiff developed his

claim to additional compensation growing out of the change orders in addition to the specific

sums provided in his original contract and an addendum thereto. In objections to the

introduction of evidence defendant ��<�2?��=�

��-

��71 Nev. 340, 345 (1955) State v. Means��

insisted: “We are dealing here with the architect's contract and what he is entitled to under his

contract.”

The chairman of the state planning board, called by plaintiff as an adverse witness,

testified that the aggregate figure of $19,100, payable to plaintiff under the two contracts, was

to be in payment of his entire services.

Thus plaintiff put on his case for two days and then for the first time discovered, or for the

first time decided to advance, the point that defendant's answer constituted a negative

pregnant and that plaintiff was entitled to his entire demand, less one cent, on his first cause

of action, without presenting any evidence at all. All reasons for application of the negative

pregnant rule failed.

The judgment on the pleadings and the order denying defendant's motion for new trial

must be reversed with costs to appellant, and it is so ordered. The cause is remanded with

directions to the lower court to overrule plaintiff's general objection to the introduction of any

evidence by defendant and to deny plaintiff's motion for judgment on the pleadings in his

favor and against the defendant on plaintiff's first cause of action, and for further proceedings.


____________

��71 Nev. 346, 346 (1955) Leland v. Leland��

CAROLYN J. LELAND, Appellant, v. ROBERT

LELAND, Respondent.

No. 3806

December 27, 1955. 291 P.2d 905.

Appeal from the Second Judicial District Court, Washoe County; John S. Belford, Judge,

Department No. 1.

Action for divorce. The trial court granted a divorce to the husband and the wife appealed.

The Supreme Court, Badt, J., held that evidence sustained award of divorce to husband on

ground of cruelty and allowance of $200 a month for alimony and determination of property

rights to wife.

Affirmed.

Springmeyer & Thompson, of Reno, for Appellant.

John S. Sinai and David Sinai, of Reno, for Respondent.

1. Divorce. Evidence authorized award of divorce to husband on ground of extreme cruelty, including excessive

friendship for wife's former husband.

2. Divorce. Evidence supported finding that husband's health was injured and endangered by reason of wife's cruelty,

as ground for divorce.

3. Divorce. Evidence sustained finding that allowance of $200 a month for wife's support and maintenance and

determination of property rights was adequate. N.C.L. 1943-1949 Supp., sec. 9463.

OPINION


Carolyn J. Leland has appealed from a judgment granting a divorce to her husband Robert

Leland on the ground of extreme cruelty and contends (1) that the evidence is wholly

insufficient to support a finding of �*��,�:";��=��,��:$;��


extreme cruelty on her part; (2) that it is insufficient to support a finding that her husband's

health was injured or endangered by reason of any misconduct of hers; and (3) that the court

erred in its order for her support and maintenance and determination of property rights

because it made no just, equitable and reasonable division of the community property of the

parties. We treat each of these assignments in the order mentioned.

(1) On August 18, 1952 Robert Leland obtained a divorce from his first wife, Beatrice, in

Washoe County, Nevada. On the same date appellant Carolyn Leland obtained a divorce, in

the same county, from Henry F. W. Thomas, who was her second husband. On the same date

Carolyn and Robert were married in Reno. Robert had known Henry Thomas for over twenty

years. They had been fraternity brothers at Amherst College. Immediately following the

marriage Robert and Carolyn went to Bethesda, Maryland, where they lived for two months

in a home owned by Thomas. With them were the two children, the issue of Carolyn's

marriage to Thomas and whose custody had been awarded to her with right of visitation in

Thomas. The dangers and pitfalls of such a situation soon became apparent. Thomas' visits to

his children at the Leland home were made weekly and sometimes more frequently, and

within a month numerous quarrels occurred between Robert and Carolyn over these visits. A

possible divorce was discussed on several occasions. In November, 1952, the parties moved

to Washington, D.C., where Thomas continued to visit the children. Although the situation

bettered itself from time to time, the irritation and the quarrels continued until Robert left the

home in September, 1953, established residence in Nevada, and commenced his action for

divorce there, which was tried in April, 1954.

[Headnote 1]

Leland, to whose testimony the trial court apparently gave credence, testified that shortly

after the marriage his wife told him she wished she was still married to F��,�� C��=�� ,��*��C��

��,��F��C��,��C��F�� C�� ,��3��9��G��=��,��,��G��=��,�� G��=�� *��


Thomas; that she was overfriendly with him and, over Leland's objections, continually invited

him into the home; that she made comparisons about the sexual prowess of Leland and of her

second husband; that she said that Thomas was a better father than Leland; that when Leland

and his wife wanted to go out for the evening she invited Thomas, over the objections of

Leland, to come over to their house to take care of the children; that Carolyn unjustifiably

criticized the character and upbringing of Robert's two children by his prior marriage; that she

was unfair in the punishment of his children as compared with the disciplining of her

children; that she continued to show an obvious warmth and friendship for her former

husband despite Robert's protestations; that, over Robert's objections, she invited her brother

to the home where he was a constant visitor and where his visits were particularly

objectionable because of his excessive use of alcohol. Robert testified to one occasion at

which she had called him names and humiliated him in the presence of others. Carolyn denied

much of this testimony but agreed that the situation was one of constant tension and

quarreling, although she maintained that her relations with her former husband were objective

and formal. The court was able to observe the demeanor of both parties on the stand and to

judge of their credibility. We are unable to say that its findings of extreme cruelty on the part

of Carolyn toward Robert are without support and we find this assignment to be without

merit.

[Headnote 2]

(2) Nor are we able to say that the court's finding that Robert's health was injured and

endangered by reason of Carolyn's conduct is without support. He testified that his wife's

conduct increased his nervousness, that he developed stomach pains, was unable to sleep well

and that his blood pressure increased to the end that he consulted his family physician. After

the separation these symptoms disappeared and he gained fifteen pounds in weight.


(3) Approximately one-half of the 150-page transcript, in addition to numerous exhibits

comprising financial statements, copies of income tax returns, etc., are devoted to an attempt

to ascertain the precise amount of the community property owned by the parties at the time of

the divorce. In considering this we may assume for the sake of argument that the property in

question was community property, although the record does not indicate that the husband's

earnings during coverture were in community property jurisdictions. The husband had, prior

to his marriage, formed two corporations, in one of which he owned all of the stock and in the

other two-thirds of the stock. Through these corporations he dealt with government surplus

commodities and there were numerous transactions between himself on the one hand and the

corporations on the other. During the years prior to his marriage the corporations prospered

and Leland enjoyed a large income. In January, 1953, he drew as salary, presumably for 1952,

the sum of $14,400, and during the year 1953 he drew $13,400. As to all of his income,

Leland testified that it had all been spent. He also testified that his stock in the two

corporations was of little value.

[Headnote 3]

“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 the party through whom the property was acquired * * *.” Sec. 9463,

N.C.L., 1943-1949 Supp. The court awarded to Carolyn $200 a month for twelve months for

her support and maintenance and determination of property rights. (It may also be noted that

Carolyn was receiving $100 a month from her former husband for the support of her two

children by that husband.) The wife contends that an analysis of the income tax returns of her

husband and of the various transactions had between Leland and his ��


two corporations indicate his ownership of concealed assets amounting to substantial sums of

money. The trial court was not impressed with these contentions beyond its conclusion that

the aggregate $2,400 allowed the wife was a fair and equitable apportionment of the

community property under the conditions imposed by the statute. It chose to believe the

husband's testimony that the day of large profits growing out of the purchase and sale of

government surplus property was past; that Leland's two corporations were devoid of

substantial assets; and, by implication, concluded that no community property could be traced

into those corporations and that there was no showing of any substantial amount of

community property in the possession of the husband. The only finding of fact made by the

trial court on this issue was “that defendant is entitled to the sum of $200 each month * * *

for the full period of twelve months as and for her support and maintenance and

determination of property rights.” No more specific findings were requested by the wife. As

in the first two assignments of error, so here our duty goes no further than to determine

whether there is substantial support for the finding. Such we find to be the case.

The judgment is affirmed without costs to either party.


____________

��71 Nev. 351, 351 (1955) Havas Motors v. Combs��

HAVAS MOTORS, Appellant, v. CHESTER

COMBS, Respondent.

No. 3858

December 30, 1955. 291 P.2d 907.

Appeal from the Eighth Judicial District Court, Clark County; Ryland Taylor, Judge,

Department No. 3.

Action for rescission of conditional sales contract or automobile purchase order under

which plaintiff had bought a used automobile from a dealer. The trial court allowed rescission

and the dealer appealed. The Supreme Court, Eather, J., held that even if the automobile

dealer had technically breached the contract by failing to hand to the buyer a certificate of title

on the date of last installment payment, the respective equities of the parties were such that

the buyer, who had used the automobile many months, was not entitled to rescission.

Reversed with costs and remanded with instructions that judgment be entered for

defendant.

David Zenoff and Calvin C. Magleby, of Las Vegas, for Appellant.

Michael Hines, of Las Vegas, for Respondent.

1. Sales. Buyer who purchased used automobile from dealer under conditional sales contract or automobile

purchase order was entitled to have title, as used in legal sense of ownership, vested in him upon his

making final installment payment.

2. Cancellation of Instruments. Rescission is an equitable remedy.

3. Sales. Even if automobile dealer technically breached contract by failing to hand to buyer, who had bought used

automobile under conditional sales contract or automobile purchase order, a certificate of title on date of

last installment payment, the respective equities of the parties, as shown by record on appeal, were such

that buyer, who had used automobile many months, was not entitled to rescission.

4. Sales. Even if automobile dealer technically breached contract by failing to hand to buyer, who had bought used

automobile �� 4��


under conditional sales contract or automobile purchase order, a certificate of title on date of last

installment payment, where only damages proved were $8 costs of temporary license plates, doctrine of de

minimis was applicable.

OPINION


On or about the 13th day of February, 1954, Chester Combs, hereinafter referred to as the

respondent, purchased from Havas Motors, Inc., hereinafter referred to as the appellant, under

a conditional sales contract (or an automobile purchase order), a 1948 Studebaker automobile

for the total purchase price of $616. Payments on said automobile were to be made as

follows: $50 on February 13, 1954 and semimonthly payments of $22 each beginning on

February 27, 1954, until paid. The last payment was made on August 21, 1954, by the

respondent to the appellant, and a receipt acknowledging said payment was issued to the

respondent by the appellant on said date.

At the time the parties entered into the sale agreement, the respondent was well aware of

the fact that the car he was purchasing from the appellant was an out-of-state automobile; the

car at the time of the purchase had Missouri license plates on it. At the time of the sale,

appellant by and through its agents, advised the respondent that the appellant was the owner

and entitled to sell the automobile; that the former owner had given the appellant a bill of sale

for the automobile and had agreed to forward the “title.” The respondent well knew that

appellant did not have “title” to the automobile at the time it was purchased and that

respondent would be compelled to obtain temporary permits until such time as “title” was

forwarded to the appellant.

Each time respondent made a semimonthly payment he inquired about “the title,” and was

advised that appellant was still trying to get it. Thus respondent ��"! �!&'0�


continued to make his payments and anticipated them by making a final payment August 21,

1954. Appellant had still not obtained the title papers from Missouri, though efforts had been

continuously made by correspondence with the former owner and others and with the motor

vehicle department of Missouri. Although appellant had obtained a bill of sale when

originally acquiring the car it concluded that it was necessary to obtain title by advertisement

and sale under the mechanic's lien law. It advised respondent that it was doing this before the

latter made his final payment, and the necessary publication under this statute was completed

about the end of July.

[Headnote 1]

In the meantime, during the subsistence of the contract, respondent had been driving the

car equipped with a temporary permit which had to be reissued or confirmed every 30 days.

He was entitled, under his contract, to have the title (here used in its legal sense) vested in

him upon his making his final payment August 21, 1954. At that time he was advised that

appellant had completed the obtaining of title by publication and that in order to issue the

permanent registration certificate respondent's temporary plate would have to be surrendered.

He did not have time to do this and appellant presented all of the papers, but the motor

vehicle department again refused the permanent plate without surrender of the temporary

plate.

Four days after his final payment of August 21 (the first date on which respondent was

entitled to be vested with the title), namely, on August 25, 1954, respondent filed his

complaint for a rescission of the contract, alleging for the first time that he was “ready,

willing and able to return said automobile” and demanding the return to him of the total

purchase price of $616. The trial of the action was had December 1, 1954. In the meantime

the motor vehicle division of the public service commission of Nevada had issued to

respondent ��@��$ �!&'0 ��


on September 3, 1954, its certificate of registration showing him to be the legal owner as well

as the registered owner of the vehicle in question. Certificate of ownership, however, was

apparently still being processed through the department.

Throughout the trial court, counsel and all of the witnesses referred to “the title” not in the

usual legal concept of ownership or the combination of all the elements which constitute

ownership, but rather as that slip of paper or instrument issued by the proper authorities of the

state generally referred to as the “certificate of ownership” or possibly the certificate of

ownership issued to A endorsed with A's assignment thereof to B. The confusion resulting

from such concept of the word apparently contributed to the error in the trial court's

conclusion.

The court rendered an oral decision from the bench to the effect that appellant had

breached its implied contract “to furnish respondent title”; that respondent delivered back the

car and that appellant refund him his $616. The effect of the judgment was to give respondent

the free use of the car from the date of its sale to him February 13, 1954 to the

commencement of the suit August 25, 1954, and apparently even to the time of trial,

December 1, 1954, and presumably up to the time of argument of this appeal.

Respondent had sought damages as well as his rescission and the court had theretofore

denied a motion to dismiss based upon the contention that the two remedies were inconsistent

and that respondent should be compelled to elect. In its decision the court denied damages,

for the reason that the damage and inconvenience suffered by respondent (by having to do

with temporary licenses) was balanced by his having the use of the car. We may note that the

only evidence of damage in the record is the payment by respondent of an aggregate of $8 for

his temporary licenses, his inconvenience in being stopped on the road a number of times for

questioning as to his temporary license and the necessity for ��$(��*��


his going to the motor vehicle office on each occasion of obtaining a 30-day extension. As to

the latter items, there was no evidence from which any conclusion could be drawn as to any

specific amount of monetary damage. At no time until the filing of his complaint did

respondent demand a rescission or offer to return the car or demand the return of his money.

[Headnotes 2, 3]

Rescission is an equitable remedy, and even if we assume a technical breach of the

contract because appellant did not hand respondent his title papers on the day of the final

payment, many elements, under the facts herein recited, were so lacking that neither the

attempted rescission in the filing of respondent's complaint on August 25, 1954, nor the

judgment of rescission by the court can find justification, and the judgment must accordingly

be reversed. Elwood Edwards Auto Sales v. Kinsey Inc., 123 Colo. 52, 225 P.2d 59.

[Headnote 4]

This leaves undetermined the question of damage suffered by the respondent. The court

did not find the amount of the damage, nor could it in our opinion have found any damages

other than $8 costs of temporary license plates. “The law does not concern itself about

trifles,” and we accordingly require no action by the lower court on this item.

Reversed with costs, and remanded with instructions that judgment be entered for

defendant.


____________

��71 Nev. 356, 356 (1955) Madsen Constr. Corp. v. Riverside County Mortgage & Loan Co.��

MADSEN CONSTRUCTION CORP., Appellant, v. RIVERSIDE COUNTY MORTGAGE

and LOAN COMPANY, a California Corporation, Respondent.

No. 3878

December 30, 1955. 291 P.2d 1056


Department No. 1.

Lender's action to recover cancellation fee with respect to unused credit extended. The

lower court denied defendant's motion to amend answer and rendered judgment for plaintiff,

and defendant appealed. The Supreme Court, Merrill, C. J., held that under circumstances,

trial court did not abuse its discretion in refusing borrower permission to amend answer so as

to assert counter-claim which arose out of borrower's resale of loans after lender's institution

of action and which was not a mandatory counterclaim.

Judgment affirmed.

Morse, Graves & Compton, of Las Vegas, for Appellant.

James H. Krieger, of Riverside, California, and Taylor & Gubler, of Las Vegas, for

Respondent.

1. Set-Off And Counterclaim. Where loan agreement provided for cancellation fee for unused credit, and provided that lender would

refund borrower's deposits on any loan resold by borrower, and borrower resold loans after lender

instituted action for cancellation fee, borrower's claim was not a mandatory counterclaim, and failure to

plead it in lender's action would not result in any loss of right. Rules of Civil Procedure, Rule 13(a).

2. Pleading. Where loan agreement provided for cancellation fee with respect to unused credit extended, and provided

for refund of borrower's deposit on loans resold by borrower, and borrower resold loans after lender's

institution of action for cancellation fee, borrower's claim for refund should have been asserted by

supplemental pleading, rather than an amended pleading. Rules of Civil Procedure, Rule 15(d).

��71 Nev. 356, 357 (1955) Madsen Constr. Corp. v. Riverside County Mortgage & Loan Co.

��

3. Pleading. The trial court is not required to grant supplemental pleadings freely, but only to grant them upon

reasonable notice and such terms as are just. Rules of Civil Procedure, Rule 15(d).

4. Pleading. Under circumstances presented in lender's action to recover cancellation fee for unused credit extended,

trial court did not abuse its discretion in refusing borrower permission to amend answer so as to assert

counterclaim which arose out of borrower's resale of loans after lender's institution of action and which was

not a mandatory counterclaim. Rules of Civil Procedure, Rules 13(a), 15(d).

OPINION


Upon this appeal from judgment the sole point asserted by the appellant, defendant below,

is that the trial court was guilty of abuse of discretion in denying a motion made during trial

to permit the amendment of defendant's answer.

The action, brought by respondent mortgage and loan company, is one to recover damages

pursuant to the terms of a written contract. By that contract plaintiff agreed to furnish

defendant with a line of credit to enable defendant to engage in construction of veterans'

housing. Credit in the amount of $1,250,000 was made available. Defendant agreed to pay

plaintiff as a cancellation fee 1 percent of any sum above $100,000 of credit not used. Only

$204,000 was used. Judgment against defendant was therefore rendered by the trial court in

the sum of $9,460.

The amendment sought by defendant did not dispute any of the facts upon which judgment

was based. Instead it asserted the existence of a counterclaim. The manner in which plaintiff

agreed to furnish credit was through the making of veteran administration loans to the

purchasers of defendant's housing units. Defendant agreed to deposit with plaintiff 8 percent

of the amount of each loan as it was made. In the event plaintiff resold the �� =��


loan, defendant's deposit upon such loan was to be refunded or credited to sums due to

plaintiff.

During trial defendant sought to introduce testimony to the effect that certain of the loans

had been resold or paid off and that defendant was entitled to credit for its deposits made on

such loans. The evidence was refused by the trial court as not within the issues framed by the

pleadings. A motion to amend the answer in this respect was denied by the court and it is this

denial which is asserted as abuse of discretion. Defendant relies upon the provisions of Rule

15 N.R.C.P. to the effect that leave to amend shall be granted freely when justice so requires.

[Headnotes 1-3]

It appears from the record, however, that the resales of loans upon which defendant's

counterclaim would have been based occurred after the serving of defendant's answer. These

facts, then, did not constitute a mandatory counterclaim under Rule 13(a) N.R.C.P. and

failure to plead them would not result in loss of any right which might exist by reason of such

facts. Furthermore these facts properly should form the basis of a supplemental pleading

under Rule 15(d) N.R.C.P. rather than an amended pleading. The rules impose no injunction

upon the trial court that the filing of supplemental pleadings be freely granted but provides

simply that they may be allowed upon reasonable notice and upon such terms as are just.

Upon the motion the trial court was not, then, concerned with problems of ultimate justice

but rather with problems of administration of justice. The question: whether to permit the

filing of a supplemental answer and counterclaim in order that further disputes with reference

to the contract might be resolved in the case already at bar; or whether to require defendant to

resort to an independent action.

[Headnote 4]

Bearing upon the court's decision the record discloses that twice before trial defendant had

been granted ��


eleventh-hour motions for continuance of trial. Had the supplemental answer been allowed, a

further continuance to establish the issues would apparently have been required. The court's

choice was simply between convenience for plaintiff and convenience for defendant. Under

the circumstances we are unable to view the choice for plaintiff as abuse of judicial

discretion.

Counsel for both parties have discussed at length certain conditions imposed by the trial

court in granting the two continuances which were allowed and have debated the question

whether such conditions may properly constitute independent justification of the court's

refusal to permit amendment. This point we do not discuss, feeling as we do that such

justification is unneeded.

Affirmed.


____________

nevada reports 1955 (71 nev.).pdf

Documents

insurance contract

oral contract of insurance

written contract

coveredfor collision

truck collision insurer

alleged oral contract

whensuch trucks

thosepartnership trucks