nevada reports 1960 (76 nev.).pdf

76 Nev. 1, 1 (1960)

REPORTS OF CASES

DETERMINED BY

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

VOLUME 76

____________

��76 Nev. 1, 1 (1960) Raggio v. Bryan��

WILLIAM J. RAGGIO, District Attorney of Washoe County, Appellant, v. WILLIAM J.

BRYAN, Respondent.

No. 4260

January 6, 1960 348 P.2d 156

Appeal from the Second Judicial District Court, Washoe County; John F. Sexton,

Presiding Judge, Department No. 3.

Habeas corpus proceeding instituted by physician charged with furnishing intoxicating

liquor to minor. The lower court entered order discharging defendant from custody and

district attorney appealed. The Supreme Court, McNamee, C. J., held that evidence failed to

establish such liquor was supplied in defendant's capacity as a physician and that other

evidence was such that justice of peace who bound defendant over for trial by district court

after preliminary hearing could properly have concluded that there was sufficient cause to

believe defendant guilty as charged.

Reversed.


Roger D. Foley, Attorney General, William J. Raggio, District Attorney, Washoe County,

for Appellant.

Streeter & Sala, of Reno, for Respondent.

1. Intoxicating Liquors. The purpose of exempting physicians from penal provisions of statute relating to furnishing intoxicating

liquor to minors was to protect physicians when prescribing intoxicating liquor in their professional

capacity. NRS 202.050, subd. 2.

2. Habeas Corpus. In habeas corpus proceeding instituted by physician charged with furnishing intoxicating liquor to minor,

the fact that physician for some period of time immediately preceding incident had been minor's family

physician was in itself insufficient to raise an inference that physician had acted in his capacity as a

physician. NRS 202.050, subd. 2.

3. Criminal Law. A magistrate, in holding a defendant to answer for a crime, is not required to find evidence sufficient to

establish the guilt of the person charged beyond a reasonable doubt.

4. Habeas Corpus. In habeas corpus proceeding instituted by physician charged with furnishing intoxicating liquor to minor,

evidence failed to establish that such liquor was supplied in defendant's capacity as a physician and other

evidence presented was such that justice of peace who bound defendant over for trial after preliminary

hearing could properly have concluded that there was sufficient cause to believe defendant guilty as

charged. NRS 202.050, subd. 2.

OPINION

By the Court, McNamee, C. J.:

Respondent was charged with furnishing intoxicating liquor, to wit, Scotch whiskey and

champagne, to Jean Ann Dickson, 1 a minor of the age of 18 years, in violation of NRS

202.050. Section 2 of said act provides: “Nothing in this section shall be deemed to apply to

parents of such minor * * * or to [her] guardian or physicians.”

____________________

1

In referring to Jean Ann Dickson as a minor we are not unmindful of NRS 129.010 which fixes the age of

majority for females at 18 years. We do so because NRS 202.050 is entitled “Sales, gifts of intoxicating liquor to

minors * * *,” and that has become the popular name of the offense, even though the prohibition therein extends

to all females under the age of 21 years.


After a preliminary hearing before a justice of the peace, respondent was bound over for

trial by the District Court of the Second Judicial District. Thereafter respondent commenced

this proceeding for a writ of habeas corpus in another department of said District Court, and

as a result thereof he was discharged from custody. From the order of discharge this appeal is

taken.

Appellant recognizes the statutory exemption of physicians, but he contends that the

relationship of physician and patient must exist at the time of the act charged for such

exemption to be applicable.

The only evidence before the court below was the transcript of the proceedings of the

preliminary hearing before the justice of the peace. At said hearing the minor testified that she

had gone to the office of respondent on May 13, 1959 to work for him as a paid employee

addressing mailing matter in connection with a political campaign. That on arrival at about

3:00 p.m., she received from respondent a polio shot, but that such medication had not been

prearranged, and no other medical treatment was given her by respondent except the shot

hereinafter referred to. Respondent's receptionist left the office about 5:30 p. m. and

thereupon respondent gave the minor two water glasses of champagne and about the same

amount of whiskey. This liquor made her drunk, and she became sick. During the time she

was drinking this liquor, respondent talked to her not about her problems, but about free love

and matters of that general nature. Some time thereafter respondent administered her some

sort of a shot because she had vomited. She was still intoxicated and hysterical when her

mother saw her at midnight. A police officer testified that upon interviewing respondent after

the above incidents, respondent admitted he had given the minor champagne and whiskey.

Respondent had been the physician of the minor and her family for three years during which

time he had given the minor hypnotic and other treatments.

[Headnotes 1-4]

The obvious purpose of exempting physicians from ��


the penal provisions of said statute was to protect them when prescribing intoxicating liquor

in their professional capacity. Blakely v. State, 73 Ark. 218, 83 S.W. 948. No evidence

whatsoever was presented to show that respondent supplied the minor with the liquor in his

capacity as a physician, and the fact that the respondent for some period of time immediately

preceding this incident had been the minor's family physician was in itself insufficient to raise

such an inference. Cf. State v. Morton, 38 S.D. 504, 162 N.W. 155, Ann.Cas. 1918E, 913;

State v. Pomeroy, 163 Mo.App. 288, 147 S.W. 144. On the other hand, the evidence clearly

shows the contrary: the minor was not in respondent's office as a patient, but as a paid

employee; the conversation of the parties during this period had no relation to any physical or

mental ailment of the minor.

It was from such evidence that the justice of the peace properly could conclude that there

was sufficient cause to believe respondent guilty as charged.

In the case of In re Kelly, 28 Nev. 491, 83 P. 223, 226, the court said:

“We are not called upon on this hearing to pass upon the sufficiency of this evidence to

warrant the conviction of the defendant, and upon that question express no opinion. In this

connection it is proper to observe that a magistrate, in holding a defendant to answer for a

crime, is not required to have submitted evidence sufficient to establish the guilt of the person

charged beyond a reasonable doubt. As was said in a recent decision (In re Mitchell, 1

Cal.App. 396, 82 Pac. 347: ‘In order to hold defendant and put him on his trial, the

committing magistrate is not required to find evidence sufficient to warrant a conviction. All

that is required is that there be sufficient legal evidence to make it appear that “a public

offense has been committed, and there is sufficient cause to believe the defendant guilty

thereof.”'” Accord Ex Parte Liotard, 47 Nev. 169, 217 P. 960, 30 A.L.R. 63.

Respondent, having been bound over to the district court for trial as a result of a

preliminary hearing at which sufficient legal evidence was presented to make it appear that a

public offense had been committed as ��


charged and there was sufficient cause to believe him guilty thereof, was under such

circumstances not unlawfully restrained of his liberty. Therefore it was error to grant the writ

of habeas corpus which discharged respondent from custody.

Reversed.

Badt and Pike, JJ., concur.

____________

��76 Nev. 5, 5 (1960) Oliver v. Spitz��

CHARLEY M. OLIVER, Petitioner, v. LOUIS P. SPITZ, as Director of the Department of

Motor Vehicles of the State of Nevada, Respondent.

No. 4250

January 7, 1960 348 P.2d 158

Original proceeding in certiorari and mandamus to review action of respondent

discharging petitioner.

The Supreme Court, McNamee, C. J., held that the evidence sustained the commission's

finding that there was no just cause for dismissal, and held that respondent had erred in

refusing the commission's recommendation.

Peremptory writ of mandamus ordered.

Paul D. Laxalt, of Carson City, for Petitioner.

Roger D. Foley, Attorney General, for Respondent.

1. Officers. Rules promulgated by State Department of Personnel and approved by Advisory Personnel Commission

would have same force and effect as applicable statutes only if they were consistent with statute. NRS

284.155, 284.385.

2. Administrative Law and Procedure. Acquiescence by legislature in promulgated administrative rules made pursuant to express authority may

be inferred from its silence during period of years.

3. Officers. Rule requiring just cause for dismissal of employees in classified service was consistent with statute and

precluded dismissal of director of driver's license division without just cause. NRS 284.155, 284.385.


4. Statutes. An administrative construction which is within language of statute and rules promulgated thereunder

should not be lightly disturbed by courts, particularly where construction is by agency charged with

administration of statute and such construction is intended to advance purposes of statute.

5. Officers.

Removal for “just cause” means “cause sufficient at law.” NRS 284.155, 284.385.

6. Officers. Evidence sustained Advisory Personnel Commission's finding that there was no just cause for dismissal

of director of driver's license division. NRS 284.010, subd. 1(a-d).

7. Officers. Where no legal cause for dismissal has ever existed, employee is entitled to full pay on reinstatement.

NRS 284.395, subd. 2.

OPINION


Petitioner became Director of the Drivers License Division of the State of Nevada in

January 1954 and continued as such until his dismissal by respondent on July 1, 1959. At the

time of his dismissal the Drivers License Division was a division of the Department of Motor

Vehicles. Under the Nevada Personnel Act (NRS 284.010-284.430) petitioner as such

director was a classified employee, and respondent as his superior officer was the appointing

authority of petitioner. The dismissal of petitioner resulted from a letter dated July 1, 1959

written by respondent pursuant to NRS 284.385 specifically setting forth 14 charges of

malfeasance and nonfeasance.

The day after his receipt of said letter petitioner requested in writing a hearing before the

Advisory Personnel Commission to determine the reasonableness of such action, as provided

by NRS 284.390. On August 17, 1959 such hearing was held and on September 14, 1959 the

Advisory Personnel Commission made its findings and recommendations which were

submitted to respondent stating that the reasons given by respondent for the discharge of

petitioner had not been proven. The commission recommended that the petitioner be

reinstated ��


to his former position. More than 30 days elapsed after receipt by respondent of said findings

and recommendations, and the respondent took no action with respect to said findings and

recommendations. Petitioner then commenced the present proceeding praying that a writ of

certiorari or mandamus or both issue commanding respondent to certify to this court a

transcript of the record and proceedings concerning petitioner's said discharge, and

commanding respondent to reinstate petitioner as Director of the Drivers License Division

with pay from the date of said discharge.

The petition is based upon the contention that respondent had no just cause for the

discharge of petitioner and that therefore his action in this regard was in excess of his

authority and jurisdiction.

Pursuant to the writ of certiorari and mandamus issued by this court the respondent

certified his return of the proceedings and has moved to quash the writs and to dismiss this

proceeding. With the consent of counsel, all of the issues are considered together.

NRS 284.385 provides:

“1. An appointing authority may:

“(a) Dismiss or demote any permanent classified employee when he considers that the

good of the public service will be served thereby.

“(b) Suspend without pay, for disciplinary purposes, a permanent employee for a period

not to exceed 30 days.

“2. In case of a dismissal or suspension, the director shall be furnished with a statement in

writing specifically setting forth the reasons for such dismissal or suspension. A copy of the

statement shall be furnished to the employee.

“3. No employee in the classified service shall be dismissed for religious or racial

reasons.”

It is not denied by respondent that if a classified employee was dismissed for either

religious or racial reasons, the appointing authority would be acting in excess of his legal

authority and a writ of mandamus would be proper to compel the reinstatement of the

employee to the office to which he is entitled. Yet in ��


neither case does the statute expressly provide that the form of application for relief by such

an aggrieved employee could be by mandamus.

[Headnote 1]

The main question involved is whether or not the rules as promulgated by the Director of

the State Department of Personnel pursuant to NRS 284.155 and as approved by the Advisory

Personnel Commission have the same force and effect as the applicable statutes. It is

conceded that if any rules are inconsistent with the act they would not have the force and

effect of law. On the other hand if they are consistent, they have such force and effect by

statute.

NRS 284.155 provides that the director of the state department of personnel, with the

approval of the commission, shall prescribe a code of rules and regulations for the classified

service which “shall have the force and effect of law.” Such rules would have the force and

effect of law even though the legislature had not so prescribed (State ex rel. Richardson v.

Board of Regents, 70 Nev. 144, 261 P.2d 515) and the commission probably would have the

power to adopt rules and regulations without specific statutory authority. 73 C.J.S., sec. 93, p.

411.

Section 10.05 of the rules adopted pursuant to the last mentioned statute provides that

“employees in the classified service may be dismissed, demoted or suspended without pay for

just cause. When an employee in the classified service is unwilling to perform the duties of

his position in a satisfactory manner or has committed any act or acts to the prejudice of the

public service, or has omitted to perform any act or acts it was his duty to perform or who has

ceased to reside in the State of Nevada or whose service rendered is below satisfactory

standards or who otherwise has become subject to disciplinary or other corrective measures,

the appointing authority shall have the power and it shall be his duty to take action, subject to

the provisions of these rules * * * to dismiss the employee from the public service.”

[Headnotes 2, 3]

Thus we must determine whether Section 10.05 of the �� !�" #��$� ��

��


rules requiring just cause for dismissal is consistent with NRS 284.385 which authorizes

dismissal when the appointing authority considers that the good of the public service will be

observed thereby.

“* * * only in a clear case will the court interfere and say that * * * a rule or regulation is

invalid because it is unreasonable or because it is in excess of the authority of the agency

promulgating it. Moreover, an administrative rule or regulation must be clearly illegal, or

plainly and palpably inconsistent with law, or clearly in conflict with a statute relative to the

same subject matter, such as the statute it seeks to implement, in order for the court to declare

it void on such ground.

“It is only where an administrative rule or regulation is completely without a rational basis,

or where it is wholly, clearly, or palpably arbitrary, that the court will say that it is invalid for

such reason.” 73 C.J.S., sec. 104(a), p. 424.

Furthermore acquiescence by the legislature in promulgated administrative rules made

pursuant to express authority may be inferred from its silence during a period of years.

Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 313, 53 S.Ct. 350, 77 L.Ed. 796. It is

to be noted that the rules were promulgated in 1954, and that there have been three sessions

of the legislature since then.

The rule requiring just cause in no way violates or defeats the spirit and declared purposes

of the statute. See Bird & Jex Co. v. Funk, 96 Utah 450, 85 P.2d 831. The legislative

declaration of purpose is specified in NRS 284.010, 1 and Rule 10.05 is in furtherance of

each purpose stated under Section 1 thereof.

We thus conclude that Rule 10.05 is consistent with the statute and precludes respondent

from dismissing petitioner without just cause.

____________________

1

Sec. 1 of NRS 284.010 reads as follows: “The legislature declares that the purpose of this chapter is: (a) To

provide all citizens a fair and equal opportunity for public service; (b) To establish conditions of service which

will attract officers and employees of character and ability; (c) To establish uniform job and salary

classifications; and (d) To increase the efficiency and economy of the governmental departments and agencies

by the improvement of methods of personnel administration.”


[Headnotes 4-7]

We must now consider whether or not there was just cause for petitioner's dismissal.

Reasons for the dismissal of petitioner were specifically set out in said letter of dismissal.

As heretofore stated the Advisory Personnel Commission conducted a hearing on the charges.

The hearing before the commission was in the nature of a judicial proceeding. Witnesses for

the petitioner and for the respondent were sworn, examined, and cross-examined. After the

hearing and consideration of the evidence for and against the dismissal, the commission made

a finding that the reasons given by respondent for petitioner's dismissal had not been proven.

In other words the commission found that there was no just cause for dismissal.

The commission is charged with the administration of the act. It has adopted rules

pursuant to the authority given it by the legislature. It has construed the evidence in this case

to be insufficient, under the statute and said rules, to justify petitioner's dismissal.

An administrative construction which is within the language of a statute and the rules

promulgated thereunder should not be lightly disturbed by the courts, particularly a

construction by the agency charged with its administration when such construction is

intended to advance the purposes of a statute. Brewster v. Gage, 280 U.S. 327, 336, 50 S.Ct.

115, 74 L.Ed. 457; Norwegian Nitrogen Co. v. United States, supra; Fawcus Machine Co. v.

United States, 282 U.S. 375, 378, 51 S.Ct. 144, 75 L.Ed. 397.

It is therefore our conclusion that the action of respondent in disregarding the

commission's finding that there was no just cause for dismissal, and in refusing to follow the

commission's recommendation that petitioner be reinstated to his former position is subject to

judicial review, because removal for just cause means “cause sufficient in law.” State ex rel.

Richardson v. Board of Regents, 70 Nev. 347, 269 P.2d 265. We have read the record and see

no reason to disagree with the commission's findings. While it is true that Section 2 of NRS

284.395 provides that the appointing authority, ��"%�� &�� '��


not later than 30 days after receipt of the findings and recommendations “may reinstate the

employee with or without pay for the period of suspension,” we construe the discretionary

provisions of this section as not being applicable to the situation where a classified employee

has been dismissed without just cause any more than they would be applicable in cases of

dismissal for racial or religious reasons.

Where no legal cause for dismissal has ever existed, an employee is entitled to full pay on

reinstatement. State Board of Equalization v. Superior Court, 20 Cal.2d 467, 127 P.2d 4.

Respondent's motion to quash the writ of certiorari and mandamus is denied, and it is

ordered that a peremptory writ of mandamus issue directing respondent to reinstate petitioner

as Director of the Drivers License Division of the Motor Vehicle Department with pay for the

period of suspension.

Pike, J., and Georgetta, D. J., concur.

Badt, J., having voluntarily disqualified himself, the Governor assigned Honorable Clel

Georgetta of the Second Judicial District to sit in the case.

____________

��76 Nev. 11, 11 (1960) Clark County School Dist. v. Mueller��

CLARK COUNTY SCHOOL DISTRICT, a Political Subdivision of the State of Nevada,

Appellant, v. RICHARD MUELLER, Respondent.

No. 4213

January 8, 1960 348 P.2d 164

Appeal from judgment of Eighth Judicial District Court, Clark County; Frank B. Gregory,

District Judge Presiding, Department No. 2.

Action in eminent domain to condemn property to afford necessary school facilities where

the property was being developed for subdivision purposes. From a judgment awarding

damages to the respondent in �� (��)��*��+�� ,��-�� ,�� ,�� .��//"��!�


the lower court, the school district appeals. The Supreme Court, Badt, J., held that substantial

evidence supported a finding that engineering development for subdivision purposes had been

approximately completed at the time of taking of one parcel; that finding that access to one

parcel was severely impaired by the taking of another parcel was not prejudicial where the

trial court did not make such finding the basis of any damage awarded to the owner, but that

the evidence did not support the severance award of damages which was excessive by

$2,773.24.

Affirmed as modified.

George Foley, District Attorney, of Las Vegas, for Appellant.

Morse, Graves & Compton, of Las Vegas, for Respondent.

1. Eminent Domain. In proceeding to condemn land to afford further necessary school facilities, substantial evidence sustained

finding that engineering development for subdivision purposes of the condemned property had been

approximately completed at the time of the taking of parcel B.

2. Eminent Domain. In proceeding to condemn land to afford additional school facilities where engineering work had been

substantially completed on the property for subdivision purposes, evidence did not establish an abuse of

discretion by the trial court with respect to evaluations placed on the property whether by lot or by acre.

3. Eminent Domain. The determination of value and just condemnation of market value of property condemned does not

preclude the court or jury from considering other elements that fairly enter into the question of value and

which an ordinarily prudent business man would consider before forming judgment in making a purchase.

4. Eminent Domain. No single measure of value may be applied rigidly in the determination of market value of lands but each

case must be considered in light of its own facts.

5. Eminent Domain. In proceeding to condemn land for additional school facilities where the land was being developed for

subdivision purposes, that sales to which owner's witnesses testified occurred �� 0 �� ,�� ,��


one, two or three years prior to the condemnor's entry on the lands and that at the time of such entry there

was a depressed market as contrasted with a boom market at the time of the earlier sales was a matter for

the consideration of the trial court.

6. Eminent Domain. In proceeding to condemn land developed for subdivision purposes for additional school facilities,

finding that access to one parcel was severely impaired by the taking of another parcel was not prejudicial

where the trial court did not make such finding the basis of any damage awarded to the owner.

7. Eminent Domain. In proceeding to condemn land for additional school purposes where the land was being developed for

subdivision purposes, evidence did not support a damage award for severance damages to one parcel in the

sum of $8,645.24 and would not support the excess amount of $2,773.24.

OPINION

By the Court, Badt, J.:

In this action in eminent domain the plaintiff appeals from a judgment fixing the

compensation to be paid to the defendant for the land taken and for damages to the remainder

by reason of the severance. The purpose of the condemnation proceeding by Clark County

School District is to acquire land adjacent to school property to afford further necessary

school facilities.

The case was tried to the district court without a jury. Appellant's expert witnesses had

assigned to the land taken (herein referred to as parcel B) an average value of $2,082 an acre.

Respondent's witnesses gave an average value of $4,894 an acre. The court gave the land a

value of $4,000 an acre.

To the land not taken (herein referred to as parcel D) the court assigned a value (on the

same basis of $4,000 per acre) of $12,968 and found that it suffered, by reason of the

severance, 66 2/3 percent damage. There is some confusion whether the last item of damage

was held to have resulted from damage by reason of the severance or by reason of impairment

of access or both.

The total judgment awarded by reason of the foregoing findings was for an aggregate of

$63,549.24, with �� /��+��"%��12#/��,��


interest at 7 percent per annum from July 30, 1957, the date of the taking, such being the date

of the order for immediate occupancy, made on motion.

Concisely stated, this appeal presents for review the propriety of the court's action in

evaluating at $4,000 per acre the land taken, as well as the land not taken, and finding a

depreciation in value to the extent of two thirds by reason of the severance of or impairment

of access to the land not taken.

Prior to the taking, respondent had filed with the local planning board maps and plats

showing a subdivision of parcel D into 16 building lots, and a subdivision of a portion of

parcel B into 16 building lots and a subdivision of an additional portion of parcel B into 18

building lots. The proposed plats as filed contained a dedication of all streets upon which the

lots abutted, but no offsite improvements had been made.

The errors specifically assigned by appellant are as follows: (1) in finding a $4,000 per

acre valuation for parcels B and D; (2) in finding that engineering development had been

approximately completed at the time of the taking of parcel B; (3) in finding that access to

parcel D was severely impaired by the taking; and (4) in concluding that the severance of

parcel D depreciated its value by two thirds.

Throughout the opening and closing briefs of appellant it is evident that it relies largely on

the contention that the evidence does not support a finding of a $4,000 per acre valuation. On

this item the learned district judge stated: “The court has considered at great length the mass

of conflicting evidence received * * *,” and we should, in general, be justified in refusing to

interfere with the lower court's resolving of such conflict. Appellant contends, however, that

the trial court in resolving this conflict ignored or rejected well-recognized rules of

determining value and adopted the theory of defendant's expert witnesses based upon sales of

properties in no measure comparable with those here involved and based on conditions

entirely irrelevant to the issue of fixing the value of both the entered and the severed parcels.

Appellant first calls attention to the ��


eminent qualifications of its four expert witnesses. Each of them based his appraisal upon an

acreage basis. One witness found a value of $1,750 an acre, the second, $2,322.86 an acre, the

third, $2,000 an acre, and the fourth, $2,250 an acre. This gave the average of $2,082 an acre

above mentioned, and for which appellant still contends.

It is evident from the record that the trial court did not direct either of the parties to draw

findings or proposed findings, but, in its written “Decision, Findings and Conclusions,”

adopted its own findings. We quote the following significant part of such decision:

“Respecting Parcel B [the land taken, comprising 13.726 acres], plaintiff completely failed

to establish to the satisfaction of this court, its contention as to valuation. The defendant

proved that preliminary engineering work had been done, looking to the subdivision of both

this parcel and parcel D [the land retained by respondent, comprising 3.242 acres, for whose

severance damage was allowed] had been filed with the planning commission of North Las

Vegas in 1955. When confronted with this evidence, plaintiff's experts called in rebuttal

conceded that the value was increased thereby. The defendant stated, and the statement was

not successfully contradicted, that the engineering and development work was halted because

of the imminence of these condemnation proceedings.

“The value of parcel B, then, must be determined in the light of the highest and best use as

residential development property, in process of being engineered, platted and developed, as of

July 30, 1957, the date of entry. Here again, the expert appraisers who testified as to costs and

value were in considerable disagreement. * * *

“Without burdening this decision by elaboration in great detail upon the reasons and

factors which caused our conclusions, we have determined and find:” The court then

proceeded to find the values above noted. Prior thereto the court had said: “It is plaintiff's

contention * * * that all of the land [in parcels B and D] should be considered as raw,

unimproved desert land, ��


and that values and damages should be determined accordingly. All of the expert witnesses

on both sides agreed on one thing (and one thing only): that the highest and best use that

could be made of the land in parcels B and D was for residential development in the lower,

middle-income bracket. At the time of taking, the parcels were almost completely surrounded

by residential developments, except for the school area, and located nearby was an extensive

shopping center.” We may note in addition, as shown by the maps, aerial photographs, and

other evidence, that just a block south of the property was a fully constructed and developed

junior high school and to the east and west were further developments. All of this was

apparently well located in a city of some 11,000 people. Appellant concedes “that the land

was in the heart of an area where residential growth was taking place.”

The defendant's expert witnesses had given a per lot appraisal of $2,500 per lot. Appellant,

while not abandoning its attack on the propriety of the per acre appraisal contends that even

on the per lot appraisal basis respondent's evaluation may not be accepted for several reasons:

[Headnote 1]

Appellant first contends that there should be deducted additional costs amounting to

two-thirds of the engineering needed to complete the lot appraisal. It had first contended that

no engineering had been done. This was met by respondent's introduction of his master plat

filed with the planning board showing the complete subdivision into blocks and lots,

dedication of streets, showing of corners found and corners established at the center of street

intersections and other points, and in addition a plat showing water distribution plan

illustrating the placement of future water mains and fire hydrants and providing for their

connection to the existent and adjacent water system; a plan showing the proposed locations

of street lamps in the subdivision area and a system for providing for electric current to each

of them; three plats showing an over-all plan indicating typical construction of concrete

sidewalks, �� -�� -��


curbs and gutters and street intersections, together with a graphic illustration of the proposed

construction of these facilities; a grading plan showing the exact elevation of each corner and

the center point of the individual lots within the subdivision; and a plan showing the main

sewerage system as it now exists and providing for the completion thereof in order to furnish

individual sewer facilities. When confronted with this evidence, two of appellant's witnesses

testified that they would assign a value of $1,000 for the engineering work done. As against

this, there was evidence indicating that $8,600 had been expended for engineering work

(though other evidence indicated that this sum might have been $5,500), part of which was

apparently for additional engineering on other parcels not here involved. As to this point we

cannot say that there was not substantial evidence to support the court's finding that the

engineering work had been practically and substantially completed.

Appellant contended further that, on the per lot appraisal basis, there should have been

subtracted the cost of the necessary offsite improvements. As to this, however, the respondent

definitely made allowance in a sum that exceeded the sum estimated by the appellant's expert

witnesses for this item.

Appellant further contends that, on the per lot valuation basis, there should be deducted

from respondent's valuation the sales expense of the individual lots. This may well have been

the basis of the court's action in reducing the respondent's valuation of in excess of $5,000 per

acre to $4,000 per acre. (Appellant's witnesses agreed on a division basis of approximately 4

1/2 lots per acre.) A considerable part of the briefs is devoted to questions of the basis for the

evaluations placed on the property, whether by lot or by acre. We do not consider necessary a

detailed consideration of the cases that have attacked this problem. Both parties presented as

a basis prior sales both by acreage and by lots. Both contended for the applicability of its own

basis and the inapplicability of the basis of its opponent. Each attacked the ��


sales relied on by the other as being not comparable. Much discussion was had not only as to

sales of “comparable” acreages and lots in the vicinity, or more remote from the vicinity, but

upon conditions of demand for building lots over high and low demand periods, financial

conditions, availability of subdivision development capital, slack purchase periods, high

periods of demand for rental properties, and the financial basis of loans for lot development,

ranging from bank loans to an extent of 66 2/3 percent of appraised value to FHA loans to the

extent of 95 percent.

[Headnote 2]

All of these matters were subject to the trial court's exercise of a sound discretion and we

can find no abuse of the exercise of such discretion. We accordingly find no merit in this

assignment.

[Headnotes 3, 4]

In effect appellant contends that in fixing the fair market value of the entered land all

methods of approach must under the circumstances of the case be rejected in favor of its own

method and its own evidence as to the sale of acreages or of subdivided lots in the vicinity.

While recognizing the general acceptance of the authorities submitted by appellant approving

as the most reliable, evidence of sales of similar properties in the vicinity, we cannot accept

the necessity as a matter of law of a restriction to this method. In State ex rel. Department of

Highways v. Pinson, 66 Nev. 227, 207 P.2d 1105, 1108, this court said: “All proper elements

offered by any of the parties were apparently taken into consideration, and the findings as to

value and damage find ample support in the evidence. We are, in effect, asked to say that the

trial court was in error in accepting the testimony of respondent's witnesses rather than the

testimony of appellants and their witnesses. This we cannot do.” Consistently with that

language this court later said in State ex rel. Department of Highways v. Shaddock, 75 Nev.

392, 344 P.2d 191, that the determining of value and just compensation under evidence of the

market value of the property taken, &�� ,�� '


“does not preclude the court or jury from considering other elements that can fairly enter into

the question of value and which an ordinarily prudent business man would consider before

forming judgment in making a purchase.” This court then proceeded to approve the action of

the trial court in considering the rental value of the property condemned as well as the actual

rent produced by the property as “elements of value * * * material in the determination of

‘just compensation for the land taken.'” The consideration by the trial court of the

capitalization method was then held not to be in error. One of the cases cited in State ex rel.

Department of Highways v. Shaddock, supra, was Welch v. Tennessee Valley Authority, 6

Cir., 108 F.2d 95, 101, in which the United States Circuit Court of Appeals held that no

single measure of value may be applied rigidly and uniformly in the determination of the

market value of lands but that each case must be considered in the light of its own facts.

Likewise cited in the Shaddock case was In Re Bainbridge-Unadilla, Part 1, State Highway,

168 Misc. 407, 5 N.Y.S.2d 988. There all elements that might affect the fair market value of

the property, including such elements as might influence a reasonably prudent person

interested in purchasing it, were held properly considered. To like effect is Olson v. United

States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236, 1245.

[Headnote 5]

Appellant earnestly contends that sales to which respondent's witnesses testified occurred

one, two, or three years prior to appellant's entry of these lands, and that at the time of such

entry there was a depressed market as contrasted with a boom market at the time of the earlier

sales. This, however, was a matter for the consideration of the trial court in which we cannot

say that there was an abuse of its discretion. Baetjer v. United States, 1 Cir., 143 F.2d 391.

[Headnote 6]

Appellant assigns as error the finding that access to parcel D was severely impaired by the

taking of parcel *�


B. It may be noted however that, although the trial court did in fact make such a finding, it

was not the basis of any damage awarded to respondent by the judgment. 1 Even if we

concede for the sake of argument that the taking of parcel B did not impair respondent's

access to parcel D, the finding of impairment of access is without prejudice to appellant.

[Headnote 7]

Appellant does not claim that there was no severance of parcel D, nor does it claim that

there was no damage to parcel D by reason of such severance. Its expert witness conceded

that the reduced size of parcel D resulting from the severance lessened its desirability for

subdivision development and he placed the actual damage resulting from such severance as

one third of the value of such remaining parcel. One of respondent's expert witnesses testified

definitely to a severance damage of $5,872 to parcel D. The trial court was within its province

in accepting this figure. The record nowhere discloses any evidence of a greater amount of

damage resulting from the severance. The court, however, found that the severance of parcel

D depreciated its value to the extent of two thirds and included a judgment for damages for

such severance in the sum of $8,645.24. We can find in the record no support for this excess

allowance of $2,773.24.

The judgment is modified by reducing the judgment for $63,549.24 to the sum of $60,776,

and as so modified is affirmed. Respondent shall have his costs in this court.

McNamee, C. J., and Pike, J., concur.

____________________

1

The court's precise finding was: “That the reasonable value of Parcel D as of July 30, 1957 was $12,968.00,

and that the severance of this parcel caused its value to be depreciated by two-thirds; that defendant should have

damages for such severance in the sum of $8,645.24.”

____________

��76 Nev. 21, 21 (1960) Zahringer v. Zahringer��

SUZANNE LESLIE ZAHRINGER, Appellant, v.

MICHAEL ZAHRINGER, Respondent.

No. 4212

January 12, 1960 348 P.2d 161

Appeal from judgment of the Second Judicial District Court, Washoe County; Clel

Georgetta, Judge, Department No. 3.

Divorce action. The lower court granted divorce to wife on ground of extreme cruelty.

Wife appealed from part of decree which awarded corporate stock to husband as part of

division of property. The Supreme Court, Pike, J., held that evidence sustained trial court's

finding that stock was separate property of husband.

Judgment affirmed.

Gray and Young, of Reno, for Appellant.

Grubic, Drendel and Bradley, of Reno, for Respondent.

1. Divorce. In divorce action where there were no children of the marriage and no support was ordered paid to the

wife, the court's power to make equitable disposition of property owned by the parties was limited to

community property. NRS 123.130, subd. 2, 125.150, subds. 1, 2.

2. Husband and Wife. Where husband borrowed money from his parents and used such money to purchase stock which was

issued only in his name, the stock was presumed to be community property.

3. Husband and Wife. In divorce action, evidence sustained trial court's finding that stock acquired during marriage was

separate property of husband. NRS 123.130, subd. 2.

OPINION

By the Court, Pike, J.:

Appeal from those provisions of a divorce decree awarding certain corporate stock to

respondent.

The appellant will hereinafter be referred to as the “wife” and the respondent as the

“husband.”


The parties were married in this state on June 17, 1954, and resided here during their

marriage which was terminated by a divorce granted to the wife on January 9, 1959, on the

ground of extreme cruelty. The decree divided certain property between the parties. The wife

appeals from that part of the judgment which awarded some 30 shares of Firestone corporate

stock to the husband.

[Headnote 1]

The written decision of the trial judge, as well as the findings of fact, conclusions of law,

and decree all disclose that the basis of such award of the stock was the court's finding that

the stock was the separate property of the husband. 1 This conclusion was based upon the

court's finding that, although all of the Firestone stock had been purchased by the husband

during coverture, such purchases were made either with (a) funds owned by the husband prior

to marriage, or (b) borrowed from his parents on the husband's own credit. It likewise appears

from the record that the trial court in making the award had in mind the decision in Thorne v.

Thorne, 74 Nev. 211, 326 P.2d 729, 730, where this court held, “The statutory power of the

court to make equitable disposition of the property owned by the parties is, under NRS

125.150, limited to community property. The only power of the court over the husband's

separate property is to set aside such portion for the wife's support as shall be deemed just and

equitable.” 2 In the instant case there was no child of the marriage and no support was

ordered ��

____________________

1

NRS 123.130, subd. 2: “All property of the husband owned by him before marriage, and that acquired by

him afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, is his separate

property.”

2

NRS 125.150, subds. 1 and 2: “In granting a divorce, the court may award such alimony to the wife and

shall make such disposition of the community property of the parties as shall appear just and equitable, having

regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and

to the party through whom the property was acquired, and to the burdens, if any, imposed upon it, for the benefit

of the children.

“The court may also set apart such portion of the husband's property for the wife's support and the support of

their children as shall be deemed just and equitable.”


paid to the wife. Accordingly, under the governing authorities just referred to, the trial court,

if properly finding that such stock was the separate property of the husband did not have

power to distribute the corporate stock to other than the husband.

The husband testified that in May 1956 he borrowed $3,900 from his parents with which

he purchased some 20 or 25 shares of stock, and that in January 1957 he borrowed another

$1,000 from them with which he purchased an additional five shares of stock. He took title to

the stock in his own name and, so far as appears from the record, retained possession and

control of it, except for an undisclosed number of shares pledged to his parents as security for

the payment of the loans which they had made to him. Such pledge was in effect at the time

of the trial. He also testified that, on the occasion of each loan he gave his parents his

promissory note evidencing the indebtedness, but that no payment had ever been made on

either note, and that he still owed his parents the money borrowed from them. No such

promissory note was ever offered in evidence or otherwise brought to the attention of the

court except by the husband's testimony just referred to. Neither of the parents gave any

testimony at the trial. No written documents or records were offered to substantiate the

husband's contention. The husband testified that he did not know the value of the stock at the

time of the trial, limiting himself to saying he “imagined” that it had not decreased in value

since he had purchased it. He did not state the exact number of shares purchased, but the total

number of shares appears to have been either 25 or 30. Although the wife testified that during

the marriage period she and the husband had discussed the possible purchase of Firestone

stock, there is no evidence that she had knowledge of any of the details attendant upon either

the purchases or the borrowing of the money used to make the purchases by her husband.

However, her testimony shows that she had knowledge that he had acquired the stock after he

had done so, and discussed its probable value with him.


The husband testified that at the time of his marriage, his separate property, so far as either

cash in his possession or deposit credits were concerned, consisted of the following: About

$1,200 in a Reno bank, about $12,300 in two Detroit, Michigan accounts and a “few hundred

dollars” additional in his possession. The $1,200 was placed in a joint account with his wife

after their marriage on June 17, 1954. About January 1955 he and his wife purchased a parcel

of unimproved real estate for the purpose of constructing a home upon it. He testified that he

made a down payment of $1,000 from the $1,200 on deposit in the Reno bank, followed by a

$5,000 payment drawn by him from his Detroit accounts. With reference to a $7,371.28

check received by him from his Detroit accounts, he testified that he deposited $4,000 of its

proceeds in the joint account of his wife and himself and carried the other some $3,000 in his

wallet, making payments from it covering labor, materials and other construction expenses

until it had all been expended within a period of about a year. The testimony of a bank

official, substantiated by bank records, corroborated the deposit of $4,000 of the proceeds

into the joint account. However, the same testimony and the same records likewise showed

that at that time he purchased another cashier's check for $3,525, causing H. J. Brandenberg

to be named as payee. He paid for both checks with the $7,371.28 check and sufficient cash

to equal the cost of the two checks. He denied having used the portion not deposited in the

joint bank account to purchase the Firestone stock, but persisted in his statement that he had

bought such stock with funds borrowed from his parents. This last mentioned testimony on

the part of the husband cannot be reconciled with the circumstances surrounding the said

cashier's check for $3,525 that was issued to H. J. Brandenberg, which discloses that it was

within a few days thereafter endorsed by such payee to the Firestone Company and negotiated

or deposited by it in a Los Angeles bank.

At the trial the parties stipulated that a total of $10,052.62 of the husband's funds

constituting separate �� ,��+��"��12#3��+��%��12#3�


property had been deposited in the joint bank account between January 3, 1956 and July 20,

1956. The testimony in the case shows that $9,000 of this total came from the Detroit

accounts owned by the husband before marriage.

[Headnote 2]

The proceeds of the loans received by the husband from his parents must be presumed to

be community property. Jones v. Edwards, 49 Nev. 299, 245 P. 292. Likewise when the

husband purchased stock with the borrowed funds, the stock was presumed to be community

property. Lake v. Bender, 18 Nev. 361, 384, 4 P. 711, 7 P. 74. The fact that the stock was

issued only in the name of the husband did not affect the presumption that it was community

property. Milisich v. Hillhouse, 48 Nev. 166, 228 P. 307.

With the above outlined evidence before it, the trial court was required to determine

whether or not such evidence was sufficient to rebut the presumption that the Firestone stock

purchased by the husband during coverture was community property. There was no testimony

before the court refuting that of the husband that he had purchased the stock with funds

borrowed by him from his parents and to whom he had pledged some of the stock at least as

security for repayment of the loans. There was, however, the $3,525 cashier's check payable

to Brandenberg and endorsed by him to the Firestone Company. This check was purchased

with separate funds of the husband and, while there is no conclusive evidence that this

particular check was used to buy Firestone stock, there is certainly nothing in the record

indicating why the funds were paid to the Firestone Company unless it was in connection

with the stock purchases testified to by the husband.

[Headnote 3]

There was evidence before the trial court that at the time that the stock purchases were

made, the husband had separate property funds available to make such purchases. There was

also evidence that such funds had been so used, despite the husband's testimony to the��


contrary. Whether or not the evidence was clear and convincing and sufficient to overcome

the presumption that the stock acquired during coverture was community property, was a

question for the trial court and, under the particular evidence of this case, we consider there

was substantial evidence in support of the trial court's finding and the portion of the judgment

appealed from. In Re Pepper's Estate, 158 Cal. 619, 112 P. 62, 63, 31 L.R.A. (n.s.) 1092.

Judgment affirmed, with costs to respondent.

McNamee, C. J., and Badt, J., concur.

____________

��76 Nev. 26, 26 (1960) Linnecke v. Dep't of Highways��

HARRY L. LINNECKE, MRS. LAWRENCE SIRI, GUS BESSO, ELWOOD RATH and

EARL D. REED, Appellants, v. DEPARTMENT OF HIGHWAYS, STATE OF NEVADA,

Respondent.

No. 4233

January 13, 1960 348 P.2d 235

Appeal from judgment of First Judicial District Court, Ormsby County; Frank B. Gregory,

Judge, Department No. 1.

Action to restrain Department of Highways from constructing or expending state funds for

construction of freeway in city or for acquisition of property by eminent domain proceedings

for right of way for location of freeway. The lower court entered judgment denying

injunction, and the plaintiffs appealed. The Supreme Court, Badt, J., held that where notices

were published in newspapers that State Highway Department would hold public hearing

regarding proposed federal aid highway through city and there was extensive local

newspaper, radio and television coverage preceding the hearing and a week prior thereto

detailed descriptions of proposed routes were distributed to utility users in the area and

economic effects of such routes were discussed at hearing, there was sufficient compliance

with ��4��5��6��5��


requirement of Federal Aid Highway Act that department shall hold public hearing and

consider the economic effects of location of such highway, notwithstanding that notice did

not state that economic effects would be considered at hearing.

Affirmed.

Ernest S. Brown and Samuel B. Francovich, of Reno, for Appellants.

Roger D. Foley, Attorney General, William E. Freedman and Earl Monsey, Deputy

Attorneys General, and Bruce R. Thompson, Special Deputy Attorney General, for

Respondent.

1. Highways. Where notices were published in newspapers that State Highway Department would hold public hearing

regarding proposed federal aid highway through city and there was extensive local newspaper, radio and

television coverage preceding the hearing and a week prior thereto detailed descriptions of proposed routes

were distributed to utility users in the area and economic effects of such routes were discussed at hearing,

there was sufficient compliance with requirement of Federal Aid Highway Act that Department shall hold

public hearing and consider the economic effects of location of such highway, notwithstanding that notice

did not state that economic effects would be considered at hearing. 23 U.S.C.A. § 128 (a).

2. Highways. The Federal Aid Highway Act provision relating to public hearings by State Highway Department

planning a federal aid highway project which bypasses or goes through city does not contemplate that

Department shall conduct quasi-judicial hearing but merely that Department will hold public hearing to

inform residents of area of locations under consideration so that such residents can express their views,

including their views as to economic effects of such locations. 23 U.S.C.A. § 128(a).

OPINION


This appeal is from judgment of the lower court denying to appellants, plaintiffs below, an

injunction restraining the Department of Highways of the State of Nevada �� ,�� (��4��


from constructing or expending state funds for the construction of what is known as the Third

Street Freeway in Reno, or for the acquisition of property by eminent domain proceedings for

a right of way for the location of the freeway.

The action was brought by appellants as taxpayers, on behalf of themselves and all others

similarly situated.

Appellants alleged that shortly after November 26, 1957 the State Highway Department

recommended to the Federal Bureau of Public Roads, under authority of the Federal Aid

Highway Act of 1956, that the Third Street Freeway be constructed; that in September 1958

the Federal Bureau of Public Roads approved such highway, to cost approximately 36 million

dollars, which included construction from the California state line some 21 miles easterly

through Verdi, Reno, and Sparks, Nevada; that its cost was to be paid 95 percent from federal

funds and 5 percent by state funds, with the state paying 17 percent of costs of grade-crossing

structures. The complaint then quoted sec. 116(c) of the Federal Aid Highway Act of 1956

[Now 23 U.S.C.A. sec. 128(a)] as follows:

“(c) Public Hearings—Any state highway department which submits plans for a federal aid

highway project involving the bypassing of, or going through, any city * * * shall certify to

the Commissioner of Public Roads that it has had public hearings, or has afforded the

opportunity for such hearings, and has considered the economic effects of such a location: * *

*” The section then requires that a copy of the transcript of such hearing be submitted with

the certification.

The complaint further recites that the State Highway Department “never had a public

hearing affording an opportunity for taxpayers, property owners, and citizens affected to

present evidence respecting the economic effect of such location”; and that the State

Department of Highways was accordingly without jurisdiction to recommend said Third

Street Freeway to the Federal Bureau of Public Roads or to expend any public funds �� -�� -�� 7��6��


or exercise the right of eminent domain in the premises; that no notice of a public hearing to

determine the economic impact upon the area of the proposed freeway was ever given as

required by law; that unless restrained the State Department of Highways will proceed with

such construction and eminent domain proceedings, resulting in the destruction of private

property and irreparable injury, loss, and damage to plaintiffs and others similarly situated.

The trial court found:

“That there was published in the Reno Evening Gazette and in the Nevada State Journal a

‘Notice of Public Hearing' in words and figures as follows:

“‘Notice is hereby given that on the 26th day of November, 1957, in accordance with

Section 116(c) of the Federal Aid Highway Act of 1956, the Nevada State Highway

Department will hold a public hearing at the State Building Auditorium in Reno, Nevada,

regarding the proposed construction of * * * a portion of the Nevada Federal Aid Interstate

and Defense Highway System from the west city limits of Reno to the east city limits of

Reno.

“‘The proposed construction consists of grading the roadbed, installing drainage

structures, railroad separations, interchanges and placing surface courses on a four lane

highway with complete control of access.

“‘Plans will be on display in the State Building Auditorium in Reno, Nevada, from 12:00

P. M. to 8:00 P. M. on November 22nd, 23rd and 25th, 1957.

“‘All persons interested are hereby notified to be and appear at this meeting on the 26th of

November at 2:00 P. M. and be heard.

“‘Dated this 30th day of October, 1957.

“‘H. D. Mills, State Highway Engineer.'”

It further found that such notice was published in the (Reno) Nevada State Journal

November 13 and 23, 1957, and in the Reno (Nevada) Evening Gazette November 12 and 22,

1957, and that pursuant to such notice a hearing was held in Reno November 26, 1957, �� *��8�� +��!��12# -�� &�� , �'��"��12# ��4��*��(��


a transcript thereof transmitted to the Bureau of Public Roads on January 24, 1958; that the

letter of transmission stated that “careful consideration has been given to the economic effect

of the proposed route on both of the cities of Reno and Sparks,” and that on September 3,

1958 the Federal Bureau approved the Third Street route. It should be noted further that in

addition to the official notices of the meeting there was extensive local newspaper, radio, and

television coverage of the proposed meeting, and that a week prior thereto, 30,000 copies of a

pamphlet entitled “You and Your Freeway,” containing a detailed map and a description of

the several routes proposed, were distributed to utility users in the Reno-Sparks area.

Appellants attack the sufficiency of the notice for its failure to designate that the economic

effects of the location would be considered. They further attack the actual hearing as held as

not complying with the tradition of judicial proceedings in which evidence is received and

weighed by the trier of facts, to the end that a decision may be made in good conscience, in

consideration of the evidence and, guided by that alone, to reach a conclusion uninfluenced

by extraneous considerations; that without such, the determination is void.

The learned district judge filed a written opinion in denying the injunctive relief sought,

holding first, that “the giving of notice, the holding and the conduct of the public hearing, are

matters of concern to the taxpayers of Nevada only insofar as they are conditions precedent to

the authorization and grant of federal aid to the ultimate construction. If the notice should be

insufficient, if the hearing is inadequate, if the required certificate is lacking, then the Bureau

of Public Roads must determine that deficiency * * *.” He held, secondly, that in any event

because of “the hearing had, the consideration given to economic effects, and the certification

made by letter, [these things] were sufficient to meet the broad and general requirements, and

that there had been substantial compliance with the provisions of [the federal] act.”

We have concluded that the judgment of the lower ��


court was correct for both of the reasons given. The only requirement for a public hearing is

the one quoted from the applicable section of the Federal Aid Highway Act. No such hearing

is required by any such statute of this state. In a similar case the Supreme Court of Delaware

had the same two questions for consideration. It said: “But all the criticism of the public

hearings is beside the point. The state law requires no public hearing. The federal statute, as

already noted, does require such a hearing. The State must comply with the federal law to

obtain federal funds. It has so complied, because the project has been approved by the Bureau

of Public Roads. The argument is beside the point.” Piekarski v. Smith, Del., 153, A.2d 587,

593. To like effect is Binghamton Citizens Penn-Can R. 17 H. C. v. Federick, 7 A.D.2d 170,

180 N.Y.S.2d 913. In Hoffman v. Stevens, U.S. District Court M.D.Pa., 177 Fed.Supp. 898,

903, the court held that: “At best, failure to afford a hearing might give rise to a dispute

between the Secretary of Commerce and Pennsylvania Department of Highways as to

allocation and use of federal funds.” The court, referring to Piekarski v. Smith, supra,

affirmed in 153 A.2d 587, emphasized the fact that under state law, absent federal aid, such

hearings are not required or held.

[Headnote 1]

Section 116(c) of the Federal Highway Act does not specify the form of notice to be given.

We cannot agree with appellants' contention that the notice was fatally defective because it

failed to state that at the public hearing consideration would be given to the economic effects

of the location of the freeway. It is unreasonable and unrealistic to assume that persons

interested in such economic effect would remain away from the meeting because they

concluded from the form of the notice that they would not be heard upon the point. The

transcript of the public meeting is before us and it is evident therefrom that none of the

witnesses felt circumscribed in this regard. The transcript of the meeting contains some

50,000 words. Forty-five witnesses testified, and in ��1� ��


addition, 21 statements, resolutions, and papers were offered and made a part of the record. It

is indicated that the meeting followed a similar meeting held in Sparks, although no transcript

of the Sparks record is before us. Anyone at the meeting desiring to be heard was given an

opportunity to speak. Some 15 or more of the statements and arguments heard were directed

to the economic effects of the selection of a route for the freeway. The economic stability and

sound growth of the city of Reno, the damage to hotels, motels, restaurants, and other

businesses established along a prior route, the wiping out of hotels, parts of schools, trucking

lines, etc. by the proposed right of way, the displacing of business, the loss of tax revenue, the

waste in excessive costs, the necessary removal of between 300 and 400 structures, the

reduction of value of fine homes, the loss of tax money needed to pave streets and improve

the existing sewer system, were all urged.

These and many other views, some favorable and some unfavorable, indicate most clearly

that much of the meeting was directed to consideration of the economic effects of the location

of the freeway.

[Headnote 2]

Appellants contend that the nature of the required hearing was that of a quasi-judicial

hearing and that the hearing as held was in this respect fatally defective. With this we cannot

agree. On the contrary, we are satisfied that the public hearings contemplated by the federal

act were for the purpose of informing the residents of the area of the locations being

considered by the state so that such residents might be given the opportunity to express their

views, including their views of the economic effects of the location. This is indicated by the

language used by the House Committee on governmental operations in the instant matter,

stating that the hearing was to give opportunity for public expression. (House Report, No.

292, 86th Congress, First Session, p. 16) See Piekarski v. Smith, supra. Alabama Power

Company v. City of Fort Payne, 237 Ala. 459, 187 So. 632, 123 A.L.R. 1337, and Morgan v.9�� 2 �9��!3 ��#3��)��


United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288, relied upon by appellants as

holding that section 116(c) of the federal act contemplates a quasi-judicial hearing, are not in

point.

The judgment of the district court denying injunctive relief is affirmed. No costs are

awarded.


____________

��76 Nev. 33, 33 (1960) Wilson v. Koontz��

ORVILLE R. WILSON, WM. C. GOODMAN, TOY R. GREGORY, Jr., WALTER

POLKINGHORNE, FRED H. DRESSLER, PETER T. KELLY, BERT ACREE, T. M.

KEAN, WAYNE JEPPSON and CLYDE GUNMOW, Petitioners, v. JOHN KOONTZ, as

Secretary of State of the State of Nevada, Respondent.

No. 4268

January 14, 1960 348 P.2d 231

Original proceeding in mandamus to require respondent to file initiative petition for

amendment of constitution to provide for biennial rather than annual sessions of the

legislature. The Supreme Court, McNamee, C. J., held that section of constitution providing

for initiative and referendum is self-executing as to constitutional amendments and

amendment of such section through an initiative petition which was approved and ratified by

people at general election was valid.

Peremptory writ of mandamus ordered.

Gray and Horton, of Reno, for Petitioners.

Roger D. Foley, Attorney General, State of Nevada, for Respondent.

1. Statutes. Purpose of 1958 amendment of article of constitution concerning initiative and referendum was to require

for initiative ��


petition more signatures from a diversified area of the state and also to specify a particular type of

verification. Const. art. 19, § 3.

2. Constitutional Law. Section of constitution providing for initiative and referendum is self-executing as to constitutional

amendments and amendment of such section through an initiative petition which was approved and ratified

by people at general election was valid. Const. art. 19, § 3.

3. Statutes. Under 1958 amendment of initiative and referendum section of constitution providing that “total number

of votes cast” at general election last preceding filing of any petition shall be the basis on which number of

qualified electors required to sign such petition shall be counted, the quoted phrase means the total number

of ballots cast and wording of such section is not so ambiguous as to make impossible the determination of

number of signatures required. Const. art. 19, § 3.

OPINION


This is an original proceeding in mandamus brought by petitioners as residents and

qualified electors of Nevada seeking an order from this court requiring respondent as

Secretary of State to file their petition hereinafter described.

Petitioners seek to amend Article 4, section 2, of the Constitution of the State of Nevada

so that it will provide for biennial rather than annual sessions of the legislature. They attempt

to do so by an initiative petition under the provisions of Article 19, section 3, of said

constitution (as amended in 1958). The respondent refused to file the petition basing his

refusal on the grounds (1) that the 1958 amendment of Article 19, section 3, is invalid and, in

any event, is self-executing with respect to proposed legislation only but not as to proposed

constitutional amendments, and (2) that even if self-executing the ambiguity of section 3

created by the 1958 amendment thereof makes it impossible to determine whether the petition

as presented for filing contains the required number of signatures.

Section 3 was added to Article 19 in 1912 by approval ��


of the voters after having been passed by the two preceding legislatures. See Stats. of Nev.

1909, p. 347, and 1911, p. 446. It was then worded as follows, the brackets indicating the

portions thereafter deleted as hereinafter explained:

“Section 3. The people reserve to themselves the power to propose laws and the power to

propose amendments to the constitution and to enact or reject the same at the polls,

independent of the legislature, and also reserve the power at their option to approve or reject

at the polls, in the manner herein provided, any act, item, section or part of any act or measure

passed by the legislature, and section one of article four of the constitution shall hereafter be

considered accordingly. The first power reserved by the people is the initiative, [and not more

than ten per cent (10%) of the qualified electors shall be required to propose any measure by

initiative petition, and] every such petition shall include the full text of the measure so

proposed. Initiative petitions, for all but municipal legislation, shall be filed with the secretary

of state not less than thirty (30) days before any regular session of the legislature; the

secretary of state shall transmit the same to the legislature as soon as it convenes and

organizes. Such initiative measure shall take precedence over all measures of the legislature

except appropriation bills, and shall be enacted or rejected by the legislature, without change

or amendment, within forty (40) days. If any such initiative measure so proposed by petition

as aforesaid, shall be enacted by the legislature and approved by the governor in the same

manner as other laws are enacted, same shall become a law, but shall be subject to

referendum petition as provided in sections one and two of this article. If said initiative

measure be rejected by the legislature, or if no action be taken thereon within said forty (40)

days, the secretary of state shall submit the same to the qualified electors for approval or

rejection at the next ensuing general election; and if a majority of the qualified electors voting

thereon shall approve of such measure it shall become a law and take effect from ��-�� :";�� ,� ��


the date of the official declaration of the vote; an initiative measure so approved by the

qualified electors shall not be annulled, set aside or repealed by the legislature within three

(3) years from the date said act takes effect. In case the legislature shall reject such initiative

measure, said body may, with the approval of the governor, propose a different measure on

the same subject, in which event both measures shall be submitted by the secretary of state to

the qualified electors for approval or rejection at the next ensuing general election. The

enacting clause of all bills proposed by the initiative shall be: ‘The people of the State of

Nevada do enact as follows.' [The whole number of votes cast for justice of the supreme court

at the general election last preceding the filing of any initiative petition shall be the basis on

which the number of qualified electors required to sign such petition shall be counted.] The

second power reserved by the people is the referendum, which shall be exercised in the

manner provided in sections one and two of this article. The initiative and referendum powers

in this article provided for are further reserved to the qualified electors of each county and

municipality as to all local, special, and municipal legislation of every character in or for said

respective counties or municipalities. The legislature may provide by law for the manner of

exercising the initiative and referendum powers as to county and municipal legislation, but

shall not require a petition of more than 10 per cent (10%) of the qualified electors to order

the referendum, nor more than 15 per cent (15%) to propose any municipal measure by

initiative. If the conflicting measures submitted to the people at the next ensuing general

election shall both be approved by a majority of the votes severally cast for and against each

of said measures, the measure receiving the highest number of affirmative votes shall

thereupon become a law as to all conflicting provisions. The provision of this section shall be

self-executing, but legislation may be especially enacted to facilitate its operation.”

This 1912 amendment to Article 19 for the first time provided for the initiative whereby

the people were ��


empowered to propose amendments to the constitution and to enact or reject the same at the

polls independent of the legislature, and similarly were empowered to propose laws.

In 1958 said section 3 was amended through an initiative petition which was approved and

ratified by the people at the general election of 1958. In other words the 1958 amendment of

said section 3 was effected by the very provisions of said section 3.

[Headnote 1]

By said 1958 amendment those parts of section 3 shown above in brackets were deleted

and the following provisions were substituted therefor:

“The initiative petition shall be proposed by not less than ten per cent (10%) of the

qualified electors of each of not less than seventy-five per cent (75%) of the counties in the

state, provided, however, that the total number of qualified electors proposing the said

petition shall be not less than ten per cent (10%) of all of the qualified electors of the State.

“Each signer shall affix thereto his or her signature, place of residence and the county

within which he or she is a qualified elector. Each document comprising the initiative petition

filed with the Secretary of State shall have affixed thereto, an affidavit made by one of the

signers to each of said documents or to the petition to the effect that all of the signatures are

genuine and that each and every individual who signed his or her name thereto was at the

time that he or she signed the petition a bonafide qualified elector of the respective county

and the State of Nevada, said affidavit to be executed before a notary public or some officer

authorized to administer an oath who possesses a seal.

“The total number of votes cast at the general election last preceding the filing of any

initiative petition shall be the basis on which the number of qualified electors required to sign

such petition shall be counted.”

The purpose of the 1958 amendment, which affected procedure only, was to require for

initiative petitions more signatures from a diversified area of the state, ��


and also to specify a particular type of verification. Respondent concedes that on the

fundamental question of whether the constitution can be amended by initiative petition under

Article 19, section 3, the original section 3 and section 3 as amended in 1958 do not differ.

[Headnote 2]

1. We have reached the conclusion that section 3, ever since its original enactment, has

been self-executing as to constitutional amendments. Not only does the last sentence thereof

so provide (“The provision of this section shall be self-executing * * *.”), but the procedure

expressly relates to all initiative petitions other than those pertaining to municipal legislation.

It is specific in the requirements necessary to effectuate the change or changes desired. The

section provides the number of signatures required on any petition, who may sign the petition,

what the petition shall contain, where and when the petition must be filed, and the detailed

disposition of the same after its filing. If any election must follow because of the legislature's

rejection or nonaction thereon, or because of the referendum, the procedure therefor is fully

covered by general law. Respondent in neither his brief nor his oral argument has suggested

any additional procedure that would necessitate further legislative action. The intention of the

people and the legislature in adding section 3 to the constitution was in part to provide an

alternate and shorter method of amending the constitution, and to reserve to the people the

“power to propose amendments to the constitution and to enact or reject the same at the polls,

independent of the legislature.” The wisdom of making it a part of the organic law is no

concern of the courts.

Under a similar constitutional provision the Supreme Court of Oregon in Stevens v.

Benson, 50 Ore. 269, 91 P. 577, 588, had no difficulty in construing it to be self-executing.

Although the case there involved a proposed law rather than a proposed constitutional

amendment, the following language therefrom would be applicable to both: &5�� <��


“A constitutional provision is said to be self-executing if it enacts a sufficient rule by

means of which the right given may be enjoyed and protected. The language used, as well as

the object to be accomplished, is to be looked into in ascertaining the intention of the

provision. As said in Willis v. Mabon, 48 Minn. 140, 50 N.W. 1110, 16 L.R.A. 281, 31

Am.St.Rep. 626: ‘The question in every case is whether the language of a constitutional

provision is addressed to the courts or the Legislature. Does it indicate that it is intended as a

present enactment, complete in itself as definitive legislation, or does it contemplate

subsequent legislation to carry it into effect? This is to be determined from a consideration

both of the language used and the intrinsic nature of the provision itself. If the nature and

extent of the right conferred and of the liability imposed are fixed by the provision itself, so

that they can be determined by the examination and construction of its own terms, and there

is no language used indicating that the subject is referred to the Legislature for action, then

the provision should be construed as self-executing.' * * * As expressed by one court,

whether it is intended thereby to declare personal rights of a citizen or to define a rule for the

government of the Legislature; and if the former, it is legislative, and needs no legislation to

give it force. It is plainly expressed in the provision itself in this case that its reserved rights

are to be independent of the Legislature, and is sufficiently specific that it may be carried out

without legislative aid * * * and in the last clause it provides that the Secretary of State, in

submitting to the people the matter referred, shall be governed by the general laws until

further provision is made by the Legislature, thus not only contemplating that such legislation

is not necessary as to procuring and presenting the petition, but also forestalling any

possibility of defeat, by inaction of the Legislature in regard to the manner of its submission

to the people. As said in Willis v. Mabon, supra: ‘The object being to put it beyond the power

of the Legislature to render them nugatory by refusing to enact legislation to carry them ��0�=�� <��>�� ,��


into effect.' If it were not self-executing, even though it were mandatory upon the Legislature

to make provision to carry it into effect, there is no power to compel it to do so. The exercise

of that power in any particular case must depend on the volition of the Legislature. Cooley's

Const. Lim. (7th Ed.) 121; In re State Census, 6 S.D. 540, 62 N.W. 129; People ex rel. v.

Rumsey, 64 Ill. 44. Thus a strong reason appears why it was intended to be self-executing,

and it should be so considered.”

The case of State ex rel. Dotta v. Brodigan, 37 Nev. 37, 138 P. 914, which heretofore has

construed section 3, has no application to the present situation. There the proposed legislation

concerned a referendum to the voters of one county only, and this court held that the fact that

section 3 was not self-executing in such cases was emphasized by the provision therein that

“the legislature may provide by law for the manner of exercising the initiative and referendum

powers as to county and municipal legislation.”

Inasmuch as we have concluded that section 3 has been self-executing ever since 1912, its

amendment in 1958 accomplished by the method therein provided must be recognized as

valid.

[Headnote 3]

2. Respondent's second contention is that even if the provisions of section 3 are

self-executing as to constitutional amendments, the petition in containing the signatures of

only 9,445 qualified electors was insufficient, and while this would be more than 10 percent

of the 87,026 ballots cast at the preceding general election, it is far short of the “total number

of votes cast at the general election last preceding.”

If we were to approve this argument of respondent, the ten percent would be applied to a

figure calculated by multiplying the number of candidates and propositions voted upon by

such voters by the number of voters and the result would require a number of signers in

excess of the total population of the State of Nevada. Respondent seems to concede the

absurdity of such construction, but claims nevertheless that this wording renders the section

so ambiguous as to make impossible ��


a determination of the number of signatures required.

It appears to us from the wording of the section and from the authorities that the meaning

intended by the words “total number of votes cast” as used in the 1958 amendment, was

“total number of ballots cast.” Gottstein v. Lister, 88 Wash. 462, 153 P. 595; cf. State ex rel.

Hunting v. Brodigan, 44 Nev. 306, 194 P. 845.

The petition appearing to be legally sufficient, it is ordered that a peremptory writ of

mandamus issue forthwith directing respondent to file the petition and to otherwise carry out

the provisions of said section 3.


____________

��76 Nev. 41, 41 (1960) Ex Parte Current��

In the Matter of the Application of HAROLD GEORGE CURRENT For a

Writ of Habeas Corpus.

No. 4279

January 21, 1960 348 P.2d 470

Original proceeding. Application of Harold George Current for a writ of habeas corpus.

The Supreme Court held that where petition for writ of habeas corpus, which alleged that

petitioner pleaded guilty to charge of possession of narcotics and was sentenced to a term of

not less than five years, revealed on its face that even if petitioner had been convicted of a

first offense and had been properly sentenced, minimum term of imprisonment would not yet

have expired, his imprisonment was not presently unlawful, and he was not entitled to his

immediate release.

Application denied.

Petitioner in pro. per.

Habeas Corpus.

Where petition for writ of habeas corpus, which alleged that petitioner pleaded guilty to charge of

possession of narcotics and was sentenced to a term of not less than five years, revealed on its face that

even if petitioner had been convicted ��


of a first offense and had been properly sentenced, minimum term of imprisonment would not yet have

expired, his imprisonment was not presently unlawful, and he was not entitled to his immediate release,

and petition for habeas corpus would be dismissed. NRS 453.210, subd. 1 (a-d).

OPINION

Per Curiam:

This is an original petition for a writ of habeas corpus in which the petitioner has applied

in propria persona.

The petitioner alleges that on the 23rd day of March 1959 he pleaded guilty to the charge

of possession of narcotics and was sentenced to a term of not less than five years, and was

sent thereafter to the state prison where he is now confined under said sentence.

It is petitioner's contention that the sentence is illegal because “it did not specify the

minimum term.”

Subsection 1 of NRS 453.210 (relating to narcotics) provides as follows:

“1. (a) Except as otherwise provided in subsections 2 and 3 of this section, any person

who violates any provision of NRS 453.010 to 453.240, inclusive, shall, upon conviction, be

fined not more than $2,000 and be imprisoned in the state prison not less than 2 years or more

than 5 years.

“(b) For a second offense, or if, in case of a first conviction of violation of any provision of

NRS 453.010 to 453.240, inclusive, the offender shall previously have been convicted of any

violation of the laws of the United States or of any state, territory or district relating to

narcotic drugs or marihuana, the offender shall be fined not more than $2,000 and be

imprisoned in the state prison not less than 5 years or more than 10 years.

“(c) For a third or subsequent offense, or if the offender shall previously have been

convicted two or more times in the aggregate of any violation of the law of the United States

or of any state, territory or district relating to narcotic drugs or marihuana, the offender ��.��%%%�� 1%�� %��


shall be fined $2,000 and be imprisoned in the state prison not less than 10 years or more than

20 years.

“(d) Except in the case of conviction for a first offense, the imposition or execution of

sentence shall not be suspended and probation or parole shall not be granted until the

minimum imprisonment herein provided for the offense shall have been served.”

It cannot be ascertained from the petition under which paragraph of subsection 1 petitioner

was convicted and sentenced. If under paragraph (b) or (c), the sentence although erroneous is

not void (Ex parte Melosevich, 36 Nev. 67, 133 P. 57); if under paragraph (a), the minimum

imprisonment should have been for not less than two years.

The petition on its face reveals that even under paragraph (a), if petitioner had been

properly sentenced, the minimum term of imprisonment would not yet have expired. Under

the authority of Ex parte Shepley, 66 Nev. 33, 202 P.2d 882, the imprisonment or detention of

petitioner is not presently unlawful, and he is not entitled to his immediate release.

The petition therefore must be and is hereby ordered dismissed. In re Robinson, 75 Nev.

327, 340 P.2d 591.

____________

��76 Nev. 43, 43 (1960) Coolman v. Coolman��

EARL A. COOLMAN, Appellant, v.

EVELYN COOLMAN, Respondent.

No. 4227

January 22, 1960 348 P.2d 471

Appeal from the Eighth Judicial District Court, Clark County; George E. Marshall, Judge,

Department No. 4.

Action by wife for divorce on ground of extreme cruelty wherein wife testified that at time

of their separation she had almost constant migraine headaches and that such condition was

result of conditions under which she was living with her husband. From a judgment and

decree of the trial court, awarding wife a ��


divorce, the husband appealed. The Supreme Court, McNamee C. J., held that evidence was

sufficient to support finding that wife's health had been injured.

Affirmed.

Cory, Denton & Smith, of Las Vegas, for Appellant.

Albert Matteucci, of Las Vegas, for Respondent.

1. Divorce. In action by wife for divorce on ground of extreme cruelty wherein wife testified that at time of their

separation she had almost constant migraine headaches and that such condition was result of conditions

under which she was living with her husband, evidence was sufficient to support finding that wife's health

had been injured.

2. Divorce.

There may be extreme cruelty without personal violence, but conduct complained of must result in danger

to life, limb, or health, or in the reasonable apprehension of such danger to constitute a ground for divorce.

3. Divorce. In determining whether extreme cruelty relied on as a basis for divorce results in danger to life, limb or

health or in the apprehension of such danger, court is obliged to consider character and refinement of

parties, and conclusion reached depends upon particular facts of each case.

4. Divorce. In action by wife for divorce on ground of extreme cruelty, wherein court was confronted by both parties

during trial and from their testimony and demeanor on witness stand was in position to evaluate their

character and refinement as well as sensibilities of wife, such evaluation rather than testimony of wife alone

was proper basis for his determination of effect of cruel treatment upon health of wife.

OPINION


This is an appeal from a judgment and decree awarding to the respondent a divorce on the

ground of extreme cruelty. Appellant's answer denied the charge. The lower court tried the

case without a jury and found that since the marriage of the parties the appellant had treated

respondent with extreme cruelty, and thereupon a judgment and decree of divorce was

entered. On this appeal ��


we are not concerned with the particular acts relied upon by the respondent as constituting

extreme cruelty on the part of the appellant. Appellant's sole contention for a reversal is that

there is insufficient evidence to justify the conclusion that the conduct of appellant, even if

cruel, injured respondent's health or put her in fear of injury to her health.

[Headnote 1]

Respondent, after testifying in detail about appellant's conduct toward her, which in part

consisted of his acts tending to humiliate and degrade her, as well as his false accusations of

her infidelity, stated that she was “under terrific pressure all the time,” that at the time of their

separation she had almost constant migraine headaches, and that this condition was a result of

the conditions under which she was living with her husband. In Leland v. Leland, 71 Nev.

346, 291 P.2d 905, testimony of a similar nature was held to be sufficient in itself to support

the trial court's finding that the respondent's health had been injured.

[Headnotes 2, 3]

That there may be extreme cruelty without personal violence is well settled in this state

and needs no further comment. Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355. The

conduct complained of, however, must result in danger to life, limb or health or in the

reasonable apprehension of such danger. Kelly v. Kelly, 18 Nev. 49, 1 P. 194, 51 Am.Rep.

732. In determining whether the conduct complained of had such results the court is obliged

to consider the character and refinement of the parties, and the conclusion to be reached must

depend upon the particular facts of each case. Kelly v. Kelly, supra.

[Headnote 4]

The trial judge was confronted by both parties during the trial and from their testimony

and demeanor on the witness stand he would be in a position to evaluate their character and

refinement as well as the sensibilities of the respondent. It is upon such evaluation rather than

upon the testimony of the complaining party alone that ��


his determination of the effect of the cruel treatment upon the health of the injured spouse

should be based. Ormachea v. Ormachea, supra; Bess v. Bess, 58 Ida. 259, 72 P.2d 285;

Bradley v. Bradley, Okl., 284 P.2d 434.

It is proper to infer that the conclusion of the trial judge, in holding that the appellant had

been guilty of such extreme cruelty as to authorize a divorce, was a result of his finding that

the aforesaid requirements therefor were present. Bess v. Bess, supra.

Judgment is affirmed.


____________

��76 Nev. 46, 46 (1960) Taggart v. Nevada Title Guaranty��

BRUCE L. TAGGART, and HELEN L. TAGGART, Appellants, v. NEVADA TITLE

GUARANTY COMPANY, A Nevada Corporation, Respondent.

No. 4226

January 27, 1960 348 P.2d 749

Appeal from judgment of Eighth Judicial District Court, Clark County; George E.

Marshall, Judge, Department No. 4.

Action by escrow purchasers against title company for amount purchasers paid outside of

escrow agreement directly to sellers. The trial court rendered judgment for title company and

purchasers appealed. The Supreme Court, Badt, J., held that where escrow instructions

required a search of title and issuance of title insurance as a condition for closing of escrow

and instructions stated that purchase money would be paid outside of escrow, escrow

purchasers made payments at their own risk and title company which learned through

preliminary search that title insurance would not issue but did not notify purchasers of such

fact was not liable for amount of payments.

Affirmed.


Morton Galane, of Las Vegas, for Appellants.

Emerson J. Wilson, of Reno, for Respondent.

Insurance.

Where escrow instructions required a search of title and issuance of title insurance as a condition for

closing of escrow and instructions stated that purchase money would be paid outside of escrow, escrow

purchasers who made payments outside of escrow directly to sellers did so at their own risk and title

company which learned through a preliminary search that title insurance would not issue but did not

notify escrow purchasers of such fact was not liable for amount of payment.

OPINION


The question presented by this appeal is whether a title company, under escrow

instructions requiring a search of title and the issuance of title insurance as a condition for

closing of the escrow and which instructions state that the purchase money will be paid

“outside of escrow,” and having learned through a preliminary search that title insurance

would not issue under the existing state of title, and which has not notified the escrow

purchaser of such fact, is liable in tort to a purchaser who has made payments “outside of

escrow” directly to the seller, resulting in loss to the purchaser.

The district court's judgment held against such tort liability. This ruling is the fundamental

basis of appellants' assignment of error. A consideration of the salient facts is necessary.

The record on appeal is encumbered by a mass of testimony and documentary evidence

wholly immaterial to the issue. This results from the fact that appellants commenced two

actions in the court below. One was against the escrow sellers and their agent, Lucille A.

Swital, for a rescission of the contract of sale; the second was against the title company for

damages for the alleged tort in neglecting to notify plaintiffs that the title was defective.

These two actions were consolidated for trial, resulting in a judgment against the sellers for

� ��


rescission as prayed by the contracting purchasers, but denying recovery from the escrow

holder for the asserted tort. The sellers and their agent Swital are not parties to this appeal.

Swital, an unlicensed real estate dealer in Las Vegas, inserted an ad in a Los Angeles paper

for the sale of a service station on behalf of the Schofields. She was contacted by the Taggarts

and a written memorandum entered into as follows:

“Searchlight, Calif., 3/3/56 Received from Bruce L. Taggart, Helen L., $500.00 to apply

on purchase price of $25,000 for [property described]. This deal owner will carry back

necessary 1st Trust Deed on Bal. Cash $8,800 * * *. $1200 on or about in 2nd Trust Deed on

Calif. property. Buyer will deposit an additional $10,300 cash and his necessary instruments

in escrow * * *. The seller is to furnish at his expense in said escrow a Deed and Policy of

Title Insurance * * *. In the event same is not furnished within a reasonable time, then buyer

shall have the right to cancel this agreement and his deposit is to be returned. * * * This

10,000 includes 3500 a/c inventory. Trust Deed payments to be $300 per month or more until

paid, to include 6 percent interest.” This was signed by the Schofields under notation that they

agreed to sell on above terms, and by the Taggarts under notation that they agreed to purchase

under said terms. Times and amounts of payments were not otherwise specified. The Taggarts

paid $500 down and sundry payments aggregating some $8,500 during March and April

1956. Some of these payments were for personal property.

Mrs. Swital then had the Schofields sign escrow instructions for the sale of the real estate

and personal property for the sums indicated, under which the Schofields agreed to hand the

escrow holder deed, fire insurance policy, and other necessary instruments to be delivered and

recorded upon receipt of note secured by deed of trust. Then followed the clause: “All funds

shall be paid direct to Lucille Swital outside of escrow * * * when you can issue policy of

title insurance * * *.” The printed instructions contain many of the usual clauses ��


in addition to the foregoing. Mrs. Swital also had the Taggarts sign escrow instructions under

which the Taggarts handed the title company $100 with agreement to supply note secured by

deed of trust, etc. “which you are authorized to use when you can issue policy of title

insurance [on the property described].”

The above escrow instructions were dated and filed with the title company March 5, 1956.

Within a few days thereafter the title company began its title search and soon (apparently

about March 10, 1956) determined that the title was not good and that it could not write a title

policy. Apparently it gave no notice of that situation to the Taggarts. During March and April

1956 the Taggarts, without making any inquiry of the title company, proceeded to make

payments to Swital, aggregating several thousand dollars. Upon discovering that title

insurance would not issue they sued Schofields for rescission, with counts against Swital.

Issues being joined in this action and in the action for damages against the title company, the

cases were consolidated and tried with results above noted.

The court made findings dealing both with the action against the Schofields for rescission

of the contract and the action against the title company. With regard to the latter, it found the

execution of the contract of sale and the title instructions as above noted, the taking of

possession by the Taggarts a short time after execution of the contract, that the Taggarts were

not advised of the condition of the title till about May 29, 1956, that the Schofields and

Swital received $10,672.51 and the note and trust deed for $18,500, that the agent of the title

company promptly began the title search and knew within a matter of a few days that title

insurance could not issue. It found further: “The plaintiffs did not make a request of

defendant Nevada Title Guaranty Company other than signing the buyers' escrow instructions

that the policy be furnished prior to the time that the injury was done.” The court concluded

that the Taggarts were not entitled to take anything as judgment against the title company.

It is this conclusion that is challenged by appellants.


The basis of such challenge is that the title company was under a duty to notify the Taggarts

of the state of the title, because the escrow instructions stated that funds were to be paid

outside of escrow, and because the title company then knew or should have known that the

Taggarts were in a position of peril and that they would make payments “outside of escrow”

directly to the Schofields unless promptly notified by the title company that the title was not

good.

Appellants confess frankly that they are unable to cite any cases in point. They urge

however that this court should impose upon the title company its duty to give prompt notice

under the circumstances and its liability in tort to appellants for its breach of that duty. They

urge that we so declare the law by analogy of the so-called insurance cases. Because we feel

that there is no analogy that may be drawn from the insurance cases as applied to the facts in

this case, we find it unnecessary to deal with those cases at length. It may be frankly conceded

that in a number of cases fire insurance companies have been held liable in tort for undue

delay in notifying an applicant of their rejection of his application for insurance. In an article

by Prof. William L. Prosser, the distinguished author of Prosser on Torts, appearing in Vol.

III, University of Chicago Law Review, 39, the author analyzes these cases as having been

determined under various theories: that since the company has solicited the offer and since

reasonable men would reject an offer promptly if there were no intent to accept it, its failure

to reject within a reasonable time may be held to be an acceptance; that it is bound by

principles of estoppel; that the duty of prompt notice results from the franchise issued to the

company by the state; that its business is affected with a public interest; that once the

defendant has entered upon the undertaking by some affirmative act, he may be liable for

negligence if he abandons it or fails to use proper care. Estoppel, quasi contract and other

principles have been used. The author feels that more recent decisions have abruptly altered

the trend of those decisions, even �� :�� ;��


though the doctrine itself (imposing liability for unreasonable delay) is in turn of

comparatively recent origin. The author lists the states in which liability has been supported

and the jurisdictions in which it has been rejected. Apparently all cases pro and con up to the

time of the article were examined.

Dean Prosser's article, published in 1936, refers to an article by Mr. Carl W. Funk,

published in 75 University of Pennsylvania Law Review, 207, in 1927, which digests the

principal insurance cases appearing up to that time, and reaches the conclusion (id. 226) “that

if a survey be made ten years hence, it will be found that the insurer, in the majority of

instances, will have been required to answer in damages for its negligent delay.” Of interest

also is the annotation appearing in 32 A.L.R.2d 487.

As applied to the present appeal however, we are of the opinion that these articles and the

cases therein discussed are of academic interest only. There is a complete failure of analogy

to the present situation. Even in Mr. Funk's article the basis for fixing liability resulting from

delay in acting upon an application for insurance (whether in tort, quasi contract or any other

of the theories advanced) is that the failure of the insurer to decide or to inform the applicant

of its decision has prevented him from securing protection from another company. “If [the

company] had acted promptly, the applicant would probably have been reimbursed for his

loss: for had it accepted the application, it would have been liable to him on the policy of

insurance; while had it rejected the proposal, the applicant might well have procured

protection elsewhere.” We may accept the fact that insurance has come to play an extensive

part in our civilization and that the tendency leans more and more to shifting the burden of

loss due to accident or catastrophe from the shoulders of the individual to those of the

community or of a group within the community. See remarks of McNamee, C. J., speaking

for this court in Johnson v. Brown, 75 Nev. 437, 345 P.2d 754. But the reason behind all this

is that the individual applying for ��


insurance must rely on such insurance as the only protection available to him against possible

loss. That situation is entirely absent from the present case. Here the Taggarts held in their

own hands 100 percent insurance against loss resulting from failure of the sellers' title.

Nothing in the contract of sale or in the escrow instructions required them to make any

payments to the sellers before assurance of the title. They made the payments entirely at their

own risk. It is not even necessary to emphasize their failure to make inquiry of the title

company before making payments “outside of escrow.”

Nor is there any analogy from the cases cited by appellants in which liability has been

imposed in cases of bailment, agency, and possibly other situations. The judgment of the trial

court in denying relief was correct.

Affirmed with costs.


____________

��76 Nev. 52, 52 (1960) Krick v. Krick��

IRVING P. KRICK, Appellant, v.

JANE C. KRICK, Respondent.

No. 4225

January 29, 1960 348 P.2d 752

Appeal from judgment of the Eighth Judicial District Court, Clark County; David Zenoff,


Proceeding on husband's motion to enter satisfaction of judgment entered in a divorce

decree. From an order of the lower court denying the motion, the husband appealed. The

Supreme Court, Pike, J., held that under property settlement agreement incorporated in

divorce decree providing that monthly sums payable to wife were part of property settlement

and that such payments constituted a part of consideration received by wife for her release

and conveyance to husband of all �� 0 �� 0 ��

��76 Nev. 52, 53 (1960) Krick v. Krick��

community property claims and of all other claims to property retained by husband and that

such payments should be made during wife's life, payments to wife were in lieu of property

rights arising from marital relationship rather than alimony and such payments did not cease

upon wife's remarriage.

Judgment affirmed.

(Rehearing denied February 26, 1960.)

Norman Cornwall and Toy R. Gregory, of Las Vegas, for Appellant.

Goldwater, Singleton, Dickerson and Miles, of Las Vegas, for Respondent.

1. Divorce. Statute providing that in event of subsequent remarriage of wife, all alimony awarded by divorce decree

shall cease, unless it shall have been otherwise ordered by the court, applies only to alimony awarded by

the decree. NRS 125.150.

2. Judgment. Trial court's construction of its own decree must be given great weight in determining intent of the trial

court.

3. Divorce. Under property settlement agreement incorporated in divorce decree providing that monthly sums

payable to wife were part of property settlement and that such payments constituted a part of consideration

received by wife for her release and conveyance to husband of all community property claims and of all

other claims to property retained by husband and that such payments should be made during wife's life,

payments to wife were in lieu of property rights arising from marital relationship rather than alimony and

such payments did not cease upon wife's remarriage. NRS 125.150.

4. Divorce. When a court acquires jurisdiction of the parties and the subject matter in a divorce action, it may award

such alimony to wife and make such disposition of community property of the parties as shall appear

equitable and just, having regard to respective merits of parties and to condition in which they would be

left by such divorce. NRS 125.150, subd. 1.

5. Divorce. Where parties, by stipulation, waived findings of fact and conclusions of law in divorce action and

husband took no action by way of appeal or motion to remedy provisions of divorce decree incorporating

property settlement, husband's failure to take any timely, appropriate action to effect modification or

deletion of such provisions was an indication of his consent thereto. NRS 125.150, subd. 1.

��76 Nev. 52, 54 (1960) Krick v. Krick��

OPINION


Appeal from order denying a motion to enter satisfaction of judgment.

The parties hereto were married in California on May 23, 1930 and separated about March

17, 1945.

On November 18, 1946 respondent, hereinafter referred to as “wife,” was granted a decree

of absolute divorce from appellant, hereinafter referred to as “husband.” Such decree awarded

to the wife the custody of the minor daughter of the marriage, then nine years of age, and

ratified, approved, and incorporated into the decree a property settlement agreement between

the parties dated July 24, 1945. The parties were ordered to comply with the terms and

conditions of such agreement.

Following the decree provisions just referred to, the decree provided as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the provision

contained in Paragraph I of the property settlement agreement hereinabove set forth for the

payment of $750 monthly during the life of defendant and cross-complainant is a part of the

property settlement and that said monthly payments constitute a part of the consideration

received by defendant and cross-complainant for her release and conveyance to plaintiff and

cross-defendant of all community property claims to the Krick Weather Service, except as in

said agreement provided, and for her release and conveyance to plaintiff of all other claims to

the property retained by the plaintiff and cross-defendant, or hereafter acquired by him, and

that by reason of said facts, the order made herein required the payment of said monthly

payments hereafter may not be modified or changed in any particular, and said monthly

payments shall be made by plaintiff and cross-defendant to defendant and cross-complainant

during the defendant and cross-complainant's life.

“Without affecting in any way the foregoing provisions of this decree with respect to the

finality of the order requiring the monthly payments of $750 to be �� <�� <��=(�=��49�(6?��@�7?�?7��)��,�� <��

��76 Nev. 52, 55 (1960) Krick v. Krick��

made by plaintiff and cross-defendant to defendant and cross-complainant, IT IS FURTHER

ORDERED that until the further order of the Court herein making other or different provision

for the support, maintenance, and education of the minor child of the parties hereto, one-third

of each monthly payment shall be fixed as the portion thereof payable for the support,

maintenance, and education of the minor child of the parties hereto. The making of other

provision for the support, maintenance, and education of said minor child, or any change

which hereafter may be made in the apportionment of said monthly payment fixed as the

amount payable for the support, maintenance, and education of said minor child, or the

termination of the obligation to support, maintain, and educate said minor child through her

death, marriage, or attaining of majority, shall not in any way affect the requirement of this

decree for the payment to defendant and cross-complainant during her life of the full amount

of the monthly payment of $750 provided for by way of property settlement in said

agreement.” (Italics supplied.)

Subsequent to the remarriage of the wife on October 24, 1956, and the attainment of her

majority by the daughter on December 9, 1957, the husband moved the trial court to enter

satisfaction of judgment based upon the wife's remarriage and the child's becoming of legal

age. Such motion was made pursuant to Rule 60 (b) (4) NRCP. 1 The husband appeals from

the order of the trial court entered on April 6, 1959 denying such relief to the husband.

[Headnote 1]

The husband contends that the payments required to be made by him to the wife under the

above quoted provisions of the decree were “alimony” as contrasted with payments made in

connection with a settlement of property rights between the parties, and that his obligation to

make further payments terminated upon the wife's ��

____________________

1

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a

final judgment, order or proceeding for the following reasons: * * * (4) the judgment has been satisfied. * * *.”

��76 Nev. 52, 56 (1960) Krick v. Krick��

remarriage. Appellant cites NRS 125.150 which read in part, “In the event of * * * the

subsequent remarriage of the wife, all alimony awarded by the decree shall cease, unless it

shall have been otherwise ordered by the court.” The quoted statutory provision, however,

applies only to “alimony” awarded by the decree. The decree does not order the husband to

pay “alimony” but, on the contrary, provides that the monthly sums to be paid by the husband

under the terms of the property settlement agreement, are “* * * a part of the property

settlement and that said monthly payments constitute a part of the consideration received by

[the wife] for her release and conveyance to [the husband] of all community property claims

to the Krick Weather Service, * * * and for her release and conveyance to [the husband] of all

other claims to the property retained by [the husband] or hereafter acquired by him, and that

by reason of said facts, * * * said monthly payment shall be made by [the husband] to [the

wife] during [the wife's] life.

[Headnote 2]

The husband's motion, seeking relief from making further payments, was presented to the

trial court nearly 12 years after the entry of the decree. During the interim the husband had

complied with the decree provisions requiring monthly payments by him. Upon the hearing of

the husband's motion the trial court was required to construe the language of its own decree,

and such construction must be given great weight in determining the intent of the trial court

with which we are here concerned. Wilde v. Wilde, 74 Nev. 170, 326 P.2d 415. The trial

court, in denying the motion, construed the decree to provide that the monthly payments shall

be made by the husband during the wife's lifetime.

[Headnote 3]

We agree with this conclusion of the lower court. In view of the above quoted language

from the decree, which provides specifically that the monthly payment shall be made by the

husband during the wife's life, even though the monthly payments should be construed to be

alimony, NRS 125.150 would not be authority for �� 0 �� &�� '�� 0 ��

��76 Nev. 52, 57 (1960) Krick v. Krick��

the payments to cease upon the wife's remarriage, as here the trial court “otherwise ordered”

that the payments continue during the wife's life.

The record shows that at the trial on the merits of the divorce case, the husband and the

wife had settled their property rights by the agreement above mentioned, and that each had

been represented by independent counsel in its execution and preparation. He also testified

that he considered that the agreement was fair, just and equitable. As indicative of the intent

of the parties with reference to the settlement of property rights and the period through which

monthly payments should continue, certain recitals and provisions of the agreement are

significant. The document entitled “Property Settlement Agreement,” after referring to the

marital differences of the parties causing them to separate, recites, that the wife has agreed to

accept certain real and personal property, cash and securities, and provisions made therein for

her support and the support of the minor child in lieu of all other provisions for her

maintenance and support and in full payment of all claims of any property then owned or to

be later acquired by the husband. As to the support provisions the agreement provides that the

husband pay to the wife “* * * the sum of $750 per month commencing August 24, 1945 and

to continue monthly thereafter during the life of the wife.” While it is true that the agreement

provides that the monthly payments shall be made for the support of the wife and for the

support of the minor child, this language must be reconciled with the provisions of the

agreement for division of property, and the agreement must be considered as a whole. Fox v.

Fox, 42 Cal.2d 49, 265 P.2d 881.

The California Supreme Court in Hilton v. McNitt, 49 Cal.2d 79, 315 P.2d 1, had before it

sec. 139 of the California Civil Code, which was amended in 1951. That section, before such

amendment, provided that upon the remarriage of the wife the husband should no longer be

obligated to provide for her support, and the 1951 amendment added the language, “except as

otherwise agreed by the parties in writing.”

NRS 125.150 provides that all alimony awarded by �� &A�A�A��

��'

��76 Nev. 52, 58 (1960) Krick v. Krick��

the decree shall cease upon the subsequent remarriage of the wife, “* * * unless it shall have

been otherwise ordered by the court.”

Thus, the California statute as amended recognizes the right of the parties by written

agreement to modify the effect of the provisions of sec. 139, California Civil Code, as they

existed prior to said amendment, while the Nevada statute provides that its limitation of

payments by the husband until the wife's remarriage shall control, unless the court “otherwise

orders.”

The Hilton case, therefore, is distinguishable. The Supreme Court of California therein

determined that the monthly payments were for support and maintenance or alimony and

ceased on the remarriage of the wife or death of the husband, because there was no agreement

to the contrary in writing.

In the present case we hold the payments did not cease because, pursuant to our statute, the

trial court “otherwise ordered,” and furthermore they were in lieu of property rights arising

from the marital relationship rather than alimony.

It must be noted that the court in the Hilton case stated that under the California statute

“provisions in a property settlement agreement or in a decree for support and maintenance

terminate on death or remarriage unless there is a provision in the agreement or decree which

negates the intention that the payments should so terminate.” The converse of this rule is

clearly to the effect that such payments do not cease if the parties in California otherwise

agree in writing or in Nevada if it is otherwise ordered by the court. To this extent the Hilton

case is authority for our conclusions herein.

Appellant contends that the portion of the decree requiring the monthly payments

above-quoted in this opinion are void as exceeding the jurisdiction of the court, because they

were not responsive to any issue raised by the pleadings or the evidence and are not in accord

with the minute order of the court in the divorce proceedings at the trial on the merits. We

must reject this contention. Ex Parte Weiler, 106 Cal.App. 485, 289 P. 645.

��76 Nev. 52, 59 (1960) Krick v. Krick��

[Headnote 4]

When a court acquires jurisdiction of the parties and the subject matter in a divorce action,

NRS 125.150, subd. (1), authorizes it to award such alimony to the wife and to make such

disposition of community property of the parties as shall appear equitable and just, having

regard to the respective merits of the parties and to the condition in which they will be left by

such divorce.

In Dutertre v. Shallenberger, 21 Nev. 507, 34 P. 449, 450 (approved in Dillon v. Dillon, 68

Nev. 151, 227 P.2d 783), this court held that, upon all facts properly pleaded, in the absence

of any express findings, this court will imply a finding in favor of the judgment of the trial

court.

[Headnote 5]

The record discloses that counsel for the parties, by stipulation, waived findings of fact

and conclusions of law. Appellant took no action by way of appeal or motion to remedy the

decree provisions now complained of. The record shows that the identical language likewise

appeared in an interlocutory decree of divorce granted to the wife in California prior to the

entry of the decree now under consideration. In that case the husband had been served with

process and had appeared and stipulated that the case might be tried as a default, which was

done. This last-mentioned circumstance merely accentuates plaintiff's knowledge of the

decree provisions just referred to. His failure to take any timely, appropriate action by appeal

or otherwise to effect their modification or deletion, is an indication of his consent thereto

and evidences the fact that, in entering into the agreement, he intended the payments to

continue during the lifetime of the wife, regardless of her remarriage or the maturity of the

child.

The order of the trial court denying appellant's motion for entry of satisfaction of judgment

is affirmed, with costs to respondent.


____________

��76 Nev. 60, 60 (1960) Couturier v. Couturier��

CLARE L. COUTURIER, Appellant, v. MARIELLEN

COUTURIER, Respondent.

No. 4228

January 29, 1960 348 P.2d 756

Appeal from the Eighth Judicial District Court, Clark County; David Zenoff, Judge,

Department No. 1.

Proceeding for modification of child custody provision of divorce decree. The trial court

rendered judgment for mother, and father appealed. The Supreme Court, Badt, J., held that

finding of change of circumstances warranting modification was supported by evidence and

introduction of mother's doctor's written report as to mother's mental and physical condition

was not objectionable where doctor was at all times available and subject to call for

cross-examination.

Affirmed.

Tad Porter, of Las Vegas, for Appellant.

Cornwall & Sullivan, of Las Vegas, for Respondent.

1. Divorce. Trial court, which had parties before it on witness stand in proceeding for modification of child custody

provision of divorce decree, observed their demeanor, passed on their credibility, and was sole arbiter to

weigh and judge their testimony.

2. Divorce. In proceeding for modification of prior decree of divorce by changing custody of four minor children of

parties from father to mother, evidence sustained finding of a change of circumstances warranting

modification.

3. Evidence. In proceeding for modification of divorce decree by changing custody of four minor children of parties

from father to mother, introduction of report of doctor as to mother's mental and physical condition was not

objectionable on ground that it prevented cross-examination where doctor was at all times available and

subject to call.

4. Divorce. Overruling of objection to supplemental affidavit in support of wife's motion for modification of custody

provisions of divorce decree on ground that it was redundant, immaterial, and untimely filed was not an

abuse of discretion.

5. Divorce. Where 75 pages of testimony had been given in proceeding for modification of child custody provisions

of divorce, all �� 0 �� ,�� ,�� ,��


material evidence in case had been adequately presented, five of husband's witnesses had been examined,

and counsel made an offer of proof so that court knew nature of testimony to be presented by four

additional witnesses of husband, court did not abuse its discretion in informing parties that no further

evidence would be taken but that court was ready to make a decision.

OPINION


This is an appeal from the lower court's order modifying a prior decree of divorce by

changing the custody of four minor children of the parties from the father to the mother, with

rights of visitation in the father. The former decree, pursuant to an agreement between the

parties, had awarded custody to the father, with rights of visitation in the mother.

The order modifying the decree with reference to custody was made upon the grounds that

since the divorce the circumstances of the mother had materially changed in that she had

remarried and could then provide the children with a good and comfortable home; that she

had recovered her health sufficiently to enable her to care properly for the children; that the

circumstances of the father had also materially changed in that he had remarried and his

present wife has four additional minor children under her care and control.

The specific errors assigned are: (1) in admitting in evidence a doctor's written report; (2)

in refusing to strike respondent's supplementary affidavit; (3) in limiting appellant's rebuttal;

(4) abuse of the court's discretion in modifying the decree because of insufficient evidence of

change of circumstances.

The task of this court in considering whether error was committed by the trial court in

these matters and whether, if so, they entitle appellant to a reversal, is a far less difficult one

than that of the trial court in passing on the motion to modify the custody provisions of the

decree.

We address our attention first to the contention that there was insufficient evidence of

change of circumstances. It is quite clear that the evidence discloses ��


important and significant changes. Following the entry of the decree of divorce, both parties

remarried. The husband, as noted, had been given the custody of the four minor children,

aged respectively, at the time of the motion, seven, six, four, and two. Approximately one

year has since elapsed, so that the children are now eight, seven, five, and three. The youngest

child, sadly, was born with one arm. The husband's present wife had three children by a

former marriage. In addition, the husband and his present wife have the care of a minor niece

of the husband's, so that the husband's household at the time of the filing of the motion

included eight minor children. At the time of the divorce respondent was working. At the

time of the present hearing she had remarried, her husband was working, and she was able to

devote her entire time to her household. The wife and her present husband now live in a three

bedroom house, with the grounds landscaped. At the time of the divorce the wife had been

mentally ill. On the occasion of the present hearing of the motion to modify the decree the

court ordered an examination of the wife by a psychiatrist and a physician. The psychiatrist

had left Las Vegas and made no examination or report. The physician made a report to the

effect that she had recovered her health sufficiently to enable her to care properly for the

children.

[Headnote 1]

At the hearing it developed that the parties were quite bitter toward each other, and the

testimony was in irreconcilable conflict on all points, except as to the affection of both parties

for their children and the desire of both parties to see that the children were properly cared

for, and except that each admitted that the other was a proper person to have the custody of

the children. Apparent in the case is the importance of the timeworn expression that the court

had the parties before it on the witness stand, observed their demeanor, passed on their

credibility, and was the sole arbiter to weigh and judge their testimony. The court's keen

desire to make such arrangement as seemed for the best interests of the children is manifest

throughout the hearing.


In modifying the decree and awarding custody to the mother, the court meticulously took

into consideration the matter of the school terms, school hours, the alternation of custody

accordingly, the particular times of custody of the youngest child Jani, the periods of

sleeping, eating, schooling, and medical care of said child, and her particular custody on

Sundays of each week if the parties did not otherwise agree. Similar provisions were made

with reference to the other three minor children. Specific provision was made for payments

by the husband to the wife during the periods when she had custody. Hospitalization was

taken into consideration and prior consultation before hospitalization provided for. Hours of

custody during Christmas were likewise considered. Special provisions forbade the parties

from influencing the minds of the children against the other parent—each parent bearing the

responsibility of such actions by the present respective spouses of the parties. Orders that the

parties refrain from personal contact indicate the bitterness that attended the attitude of each.

The same situation is manifest in forbidding each party to visit the children at the household

of the other without first obtaining consent from the other. The order requiring delivery of the

children in accordance with the decree “in a clean condition, all clothing to be clean and well

maintained,” reflects the testimony on these points. These and other provisions indicate the

difficult task presented to the trial court.

[Headnote 2]

The assignment of error that the finding of a change of circumstances warranting

modification is not supported by the evidence is without merit.

[Headnote 3]

A careful consideration of the other three assignments of error above mentioned leads to

the conclusion that they likewise are without merit. The main objection to the doctor's written

report was that it prevented cross-examination. The doctor was at all times available and

subject to call. At the time the written report was ��


offered no reporter was present, and the precise ground of the objection above stated appears

for the first time in this appeal. The report had been in appellant's hands several weeks prior

to the hearing and he had ample opportunity to provide for the doctor's appearance for

cross-examination. Nothing in the record indicates that appellant contends that the doctor's

report of the wife's present mental and physical condition is inaccurate. Appellant's only

explanation of his failure to call the doctor for cross-examination is that he feared he might be

bound by the doctor's testimony and could not safely subject his rights to this possibility. This

explanation lacks persuasion.

[Headnote 4]

On the second day of the hearing the wife filed a supplemental affidavit in support of her

motion for modification. Objection to this was on the ground that it was redundant,

immaterial, and untimely filed. We are unable to find any abuse of discretion in the court's

overruling of this objection.

[Headnote 5]

After the wife rested, the husband examined five witnesses. He had four more ready to

testify, at which point the court informed the parties that no further evidence would be taken

but that the court was ready to make a decision. The record contains some 75 pages of

testimony. Both parties have discussed at length the application of the various rules as to the

court's discretion in limiting the number of witnesses on some particular main or collateral

issue and the time and conditions under which such limitations may be ordered. Appellant

refers us to general text discussions appearing at 17A Am.Jur. 40, Divorce and Separation,

sec. 850; 27B C.J.S. 572, Divorce, sec. 317 (8); 88 C.J.S. 202, Trial, sec. 92 (b), and id. sec.

92 (d). A discussion of the subject, with its various rules, limitations, and exceptions, is not

warranted. It is clear that the court felt that all material evidence in the case had been

adequately presented, and that the testimony of the additional �� 0 ��


witnesses would not materially add to the court's understanding of the facts. This is

particularly so because counsel made an offer of proof so that the court knew the nature of the

testimony to be presented by these witnesses. We cannot say that the court abused its

discretion in limiting the number of appellant's witnesses under the conditions described.

The order modifying the divorce decree with reference to the custody of the children is

affirmed with costs.


____________

��76 Nev. 65, 65 (1960) Kelley v. State��

DON KELLEY and ROBERT EDMOND BLACK, Appellants, v. THE STATE OF

NEVADA, Respondent.

No. 4205

February 5, 1960 348 P.2d 966

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

Department No. 2.

Defendants were convicted of an attempt to obtain money by false pretenses and from the

judgment of the trial court the defendants appealed. The Supreme Court, McNamee, C. J.,

held, inter alia, that in prosecution for presenting a fraudulent keno ticket with intent to cheat

wherein it was shown that defendants in conspiracy marked a winning ticket after the winning

numbers were known in order to defraud operator of $25,000 which would have been the

reward if ticket had been properly marked and paid for prior to the drawing, defendants at

time of attempted fraud were not engaged in playing a “lottery,” which is defined as a game

of chance, since they gave no money or other consideration for the ticket, and hence

defendants were not precluded from being convicted on theory that act complained of ��


was done during progress of a game which was illegal because it constituted a lottery.

Affirmed.

Harry E. Claiborne, of Las Vegas, and John Squire Drendel, of Reno, for Appellants.

Roger D. Foley, Attorney General, William J. Raggio, District Attorney, Drake DeLanoy,

Deputy District Attorney, and Eric L. Richards, Deputy District Attorney, of Reno, for

Respondent.

1. Criminal Law. Statutes providing for order of trial in criminal cases are for purpose of informing jury of charge against a

defendant and issues which it is to decide. NRS 175.165.

2. Criminal Law. Reading of amended information and pleas thereto to jury after trial was in progress and testimony had

been received in evidence constituted technical error, but was not prejudicial under the facts. NRS

175.165.

3. Criminal Law. In prosecution for presenting a false and fraudulent keno ticket with intent to defraud, refusal to give

defendants' proposed instructions pertaining to whether game of keno was illegal as being a lottery was not

error where there had been no instruction given by court pertaining to lotteries. NRS 175.260, 205.380,

208.070.

4. Criminal Law. In prosecution for presenting a fraudulent keno ticket to a corporation with intent to defraud such

corporation, defendants were not prejudiced by admission of copy of license issued to corporation by State

Tax Commission to operate a keno game because exhibit was not certified precisely in manner provided by

statute where documents attached to exhibit were other records of Gaming Control Board, one of which

showed a computation of gaming taxes paid by the corporation, and exhibit and documents were irrelevant

to sole issue whether defendants attempted to obtain money by false pretenses. NRS 49.050.

5. Criminal Law. An objection to admission of evidence made for the first time on appeal will not be considered.

6. Criminal Law. In prosecution for presenting a fraudulent keno ticket with intent to defraud a corporation, admission of

two keno tickets, one of which was the false token which the statute required as evidence before conviction

could be had and the other being its companion ticket was not error where evidence was ample to show the

relationship to the fraud and constituted evidence ��


material to other evidence in explanation of how the fraud was committed. NRS 175.260, 205.380,

208.070.

7. False Pretenses. In prosecution for presenting a fraudulent keno ticket with intent to cheat wherein it was shown that

defendants in conspiracy marked a winning ticket after the winning numbers were known in order to

defraud operator of $25,000 which would have been reward if ticket had been properly marked and paid

for prior to the drawing, defendants at time of attempted fraud were not engaged in playing a “lottery,”

which is defined as a game of chance, since they gave no money or other consideration for the ticket, and

hence defendants were not precluded from being convicted on theory that act complained of was done

during progress of a game which was illegal because it constituted a lottery. NRS 175.260, 205.380,

208.070, 462.010.

OPINION


Appellants, hereinafter called defendants, were convicted by a jury of an attempt to obtain

$25,000 by false pretenses, the amended information charging that they presented a false and

fraudulent keno ticket to Beck Corporation in Reno with the intent to cheat and defraud said

corporation.

1. Defendants claim that the court should have declared a mistrial because the amended

information and pleas thereto were read to the jury after the trial was in progress and

testimony had been received in evidence.

NRS 175.165 requires that after a jury has been impaneled and sworn, the trial shall

proceed in the following order: The clerk must read the [amended] information and state the

pleas of the defendants to the jury. Thereafter the counsel for the state must offer the evidence

in support of the charge.

It was technical error for the court to disregard these mandatory statutory provisions.

It thus becomes necessary to determine whether defendants were prejudiced thereby.

In People v. Sprague, 53 Cal. 491, the clerk did not read the information nor state the

defendant's plea to the jury at any time after it was impaneled as was �� 1/#�13#�


required by a statute identical with NRS 175.165. The California Supreme Court there held:

“There can be no doubt that the jury were fully informed from the commencement of the

trial of the precise charges against the defendant, and of the issue raised by his plea of ‘not

guilty.'

“The departure from the form or mode of presenting the issue prescribed by statute did not

prejudice or tend to prejudice the defendant in respect to a substantial right, and it is therefore

the duty of this Court to give judgment without reference to an irregularity—the result of such

departure.”

[Headnotes 1, 2]

Statutes providing for the order of trial in criminal cases are for the purpose of informing

the jury of the charge against a defendant and the issues which it is to decide. State v.

Spencer, 101 Utah 274, 117 P.2d 455. The record before us discloses that the state's attorney

read the amended information to the prospective jurors before they were impaneled and that

he stated that it was a mere accusation on the part of the state, and that the defendants would

have an opportunity to answer the charge. During the progress of the trial the defendants

moved for a mistrial on the ground that NRS 175.165 had not been complied with in that the

amended information had not been read nor the pleas thereto stated to the jury after its

empanelment. Upon the denial of the motion for mistrial, the amended information, over the

objections of the defendants, was then read and the pleas of the defendants were stated to the

jury. Thereafter the amended information and the pleas thereto were embodied in one of the

court's instructions, and by another instruction the court informed the jury of the nature of an

information and of a plea.

Under the circumstances of this case defendants were not in any manner prejudiced by said

technical error. State v. Ayres, 70 Ida. 18, 211 P.2d 142.

[Headnote 3]

2. Defendants contend that the trial court erred in refusing to give certain instructions

pertaining to the �� ,��


proposition of whether or not the game of keno was illegal as being a lottery. As hereinafter

stated, we are not concerned under the facts of this case with the legality of the game of keno.

People v. Carpenter, 141 Cal.App.2d 884, 297 P.2d 498. There had been no instruction given

by the court pertaining to lotteries. It was not error therefore to refuse to give defendants'

proposed instructions bearing on that subject. State v. Moore, 48 Nev. 405, 233 P. 523.

[Headnotes 4, 5]

3. Error is claimed because the court received in evidence state's Exhibit M, together with

the material attached thereto, over the objection of the defendants that no proper foundation

therefor had been laid. Exhibit M was a copy of the license issued to Beck Corporation by the

State Tax Commission to operate a keno game. Because this exhibit was not certified

precisely in the manner provided by NRS 49.050, defendants objected to its admission in

evidence on the ground that a proper foundation therefor had not been laid. It does not appear

that defendants were in any way prejudiced by the faulty certificate.

The documents attached to said exhibit were other records of the Gaming Control Board,

one of which showed a computation of the gaming taxes paid by Beck Corporation. The

exhibit and documents were irrelevant to the sole issue in the case, to wit, whether or not

defendants attempted to obtain money by false pretenses. In reading the record on appeal

herein it cannot fairly be maintained that the trial court had an opportunity to rule on any

objection to Exhibit M other than the objection that the proper foundation therefor had not

been laid. In defendants' reply brief filed in this court they even assert “that defense counsel

could have made no other objection than that no foundation had been laid for the introduction

of this [exhibit].” The claim now being made in this court that Exhibit M was prejudicial as

being immaterial was not asserted in the court below. Such objection made for the first time

on appeal will not be considered. State v. Moore, supra; B��1"��/ -�=��*��0 �? ��@,��"�!�8�� 3�-�*��(�� 1"��C��1!3��"1!�8��/"1-�"

5��+��5��?��


Gooch v. Sullivan, 13 Nev. 78; In Re Bennett's Estate, Okl., 324 P.2d 862; Bower v. Tebbs,

132 Mont. 146, 314 P.2d 731; 3 Am.Jur., Appeal and Error, sec. 353, n. 12.

[Headnote 6]

4. Defendants' next assignment of error is that the trial court erred in receiving in evidence

state's Exhibits F and G. These were the two keno tickets, one of which was the false token

which NRS 175.260 required as evidence before a conviction could be had for the offense

charged, and the other was its companion ticket. The evidence was ample to show their

relationship to the fraud, and they constituted evidence material to other evidence in

explanation of how the fraud was committed. Objections thereto were properly overruled and

the motion to strike the same was properly denied.

[Headnote 7]

5. The main assignment of error is based on defendants' contention that they cannot be

convicted of an attempt to obtain money by false pretenses when the act complained of is

done during the progress of a game which is illegal because it constitutes a lottery.

The evidence in the record is sufficient to prove all the elements of the crime of attempt to

obtain money by false pretenses required for conviction under NRS 175.260 and NRS

205.380 which relate to obtaining money by false pretenses, and by NRS 208.070 relating to

attempts. Under such circumstances there remains to consider only the contention that the

defendants are absolved from guilt because the game as played was illegal.

In Horton v. State, 85 Ohio St. 13, 96 N.E. 797, 39 L.R.A., N.S., 423, it was held that it is

no defense to a charge of obtaining money by false pretenses that the transaction in which the

money was so obtained was unlawful. The court in this case considered the fact that this rule

is sustained by the authorities in Massachusetts, California, Michigan, Texas, Colorado, and

Pennsylvania. It recognized that a different rule prevails in New York and Wisconsin but

pointed out that the New D,�)��5�� 8��(��,�� 1 3��D��!1"��/2��?��"�3��1��>��5��:��;�1% 1�� &� �� 1�� '


York Court of Appeals in People v. Tompkins, 186 N.Y. 413, 79 N.E. 326, 12 L.R.A. (N.S.)

1081, questions the soundness of its rule and that it “is at variance with a more reasonable

view and the decisions in at least 12 states.” [85 Ohio St. 13, 96 N.E. 799.] The court in the

Tompkins case then went on to quote from another decision:

“We know that a feeling prevails to some extent in the community that it is unjust that one

offender should be punished and his co-offender obtain immunity. This feeling is absolutely

unreasonable. Where one offender is punished and another escapes, there may properly be a

feeling of dissatisfaction, but the dissatisfaction should not be because one man is in prison,

but because the other man is out.” [186 N.Y. 413, 79 N.E. 327.]

The question of allowing a personal remedy to the victim in these cases is an entirely

different matter and one with which we are not concerned herein.

That the New York and Wisconsin rule in applying the doctrine of particeps criminis in the

administration of criminal law is not the weight of authority and is not in harmony with

modern thinking is demonstrated by an exhaustive opinion in the case of State v.

Mellenberger, 163 Ore. 233, 95 P.2d 709, 128 A.L.R. 1506.

For the reasons aforesaid we would be constrained to follow the majority view, were it

necessary to determine whether the game of keno is a lottery.

Here it was shown that the defendants in conspiracy marked a winning ticket after the

winning numbers were known in order to defraud the operator of the game of $25,000 which

would have been the reward if the ticket had been properly marked and paid for prior to the

drawing.

NRS 462.010 defines a lottery as “any scheme for the disposal or distribution of property,

by chance, among persons who have paid or promised to pay any valuable consideration for

the chance of obtaining such property, or a portion of it, or for any share or any interest in

such property upon any agreement, understanding or expectation that it is to be distributed or

disposed of �� ,��'


by lot or chance, whether called a lottery, raffle or gift enterprise, or by whatever name the

same may be known.”

The defendants at the time of the attempted fraud were not engaged in playing a lottery

which is defined as a game of chance. People v. Carpenter, supra. They gave no money or

other consideration for the ticket.

As in the Carpenter case, the defendants by their own acts eliminated the element of

chance and they cannot therefore successfully maintain that the game was a lottery. There was

an attempt to take feloniously the property of another by false and fraudulent representations,

which is criminal under our statutes.

Affirmed.


____________

��76 Nev. 72, 72 (1960) Titanium Metals Corp. v. District Court��

TITANIUM METALS CORPORATION OF AMERICA, A Delaware Corporation,

Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA,

Respondent.

No. 4265

February 17, 1960 349 P.2d 444

Original proceeding by plant owner for writ of prohibition to prevent court from

proceeding with civil actions on ground that it had no jurisdiction. The Supreme Court,

McNamee, C. J., held that where plant owner in connection with expansion of same entered

into contract whereby general contractor agreed to supply labor and materials in connection

with plant expansion but only 46 percent of all work and materials furnished for project was

provided by general contractor and the balance was supplied by owner who used employees

directly on its payroll and other separate subcontractors, owner was a general contractor or

principal employer which precluded general contractor's �� =�� =� ��5��


employee, who suffered injuries in the course of his employment and accepted benefits under

Industrial Insurance Act, from recovering at common law from owner for injuries sustained.

Writ issued.

Vargas, Dillon & Bartlett and Alexander Garroway, of Reno, for Petitioner.

Foley Brothers, of Las Vegas, for Respondent.

Workmen's Compensation.

Where plant owner wishing to expand same entered into contract with general contractor for the

furnishing of labor and materials in connection therewith but only 46 percent of the work done and

materials furnished for expansion project was provided by such general contractor and the balance was

provided by plant owner using employees directly on its payroll and other subcontractors, plant owner was

a general contractor or principal employer precluding general contractor's employee, who suffered injuries

in course of employment and accepted benefits under the Industrial Insurance Act, from recovering at

common law from plant owner for injuries sustained. NRS 616.010 to 616.680, 616.085.

OPINION


Petitioner seeks a writ of prohibition to prevent the respondent court from proceeding with

two civil actions on the ground that it has no jurisdiction.

It appears from the verified petition that Titanium Metals Corporation of America, the

petitioner herein, entered into a written contract with Guy F. Atkinson Company whereby

Atkinson agreed to supply labor and materials in connection with petitioner's plant expansion

in Clark County, Nevada. It further appears that Lancaster and Bywater who had been hired

by Atkinson and who were the plaintiffs in said actions, after being injured filed claims under

the Nevada Industrial Insurance Act (NRS 616.010-616.680), and that payments have been

made by the Nevada Industrial Commission to each plaintiff. A copy of the said contract is

attached ��C�>��


to the petition along with an affidavit of one McLaughlin, the chief engineer of petitioner, and

they constitute the sole evidence before us in this proceeding.

The allegations of the petition are denied by respondent's unverified answer, and no

evidence in the form of affidavit or otherwise has been presented in opposition to the petition.

The sole question arising from the petition is whether petitioner is protected by the Nevada

Industrial Insurance Act from common law liability for negligence resulting in injury to said

Lancaster and Bywater.

NRS 616.085 provides: “Subcontractors and their employees shall be deemed to be

employees of the principal contractor.”

It thus becomes necessary for this court to determine whether under the uncontradicted

facts before us the relationship between Titanium and Atkinson was that of principal

contractor and subcontractor.

The nature of the relationship fully appears from the contract between the two companies

and the McLaughlin affidavit.

The said contract was entitled “Construction Management Agreement.” Its provisions in

part required Atkinson to furnish labor, materials, designing, and engineering and “generally

to do all things that are necessary for the proper construction and completion of the work as

required by the owner (Titanium).” The owner was empowered to determine the scope of the

work, to make changes therein, to require additional work, and to direct the omission of work

previously ordered. For its services Atkinson was to receive specified fees, and was to be

reimbursed for specified items including labor costs paid by it, social security, old age benefit

taxes, pension funds, health, welfare and other taxes related to labor. Such payments by

Titanium to Atkinson were to be made monthly. Either party could terminate the contract on

30 days' notice.

The McLaughlin affidavit states that petitioner is a contractor licensed by the State of

Nevada, and that under said Construction Management Agreement it was a principal

contractor for the work being done for it by Atkinson, and that Atkinson was a subcontractor;

that it �� 5�,�� ,�� -��!3�� 5�,�� -��#!�� (�� ,��,�� -��(�� ,�� =�� =� ��5��


was not intended that Atkinson provide all the work done and materials furnished for the

expansion project, nor did it do so; that only 46 percent of the project was provided by

Atkinson; that the other 54 percent was provided by Titanium who used employees directly

on its payroll, and in addition thereto brick work and other separate parts of the expansion

project were done under subcontracts; that Titanium was an employer of workmen directly

employed by it in said plant and that it was subject to the Nevada Industrial Insurance Act at

the time of the accident.

We conclude that the said contract and affidavit bring this case squarely under the ruling in

Simon Service v. Mitchell, 73 Nev. 9, 307 P.2d 110. There this court held that where a

defendant owner, in constructing a building, entered into separate contracts, the fact that

defendant was a general contractor or principal employer would preclude an employee of

another contractor who suffered injuries in the course of his employment and accepted

benefits under the Industrial Insurance Act from recovering at common law from defendant

for the injuries sustained.

“If the owner chooses to retain in his own hands the business of erecting the building, and

to parcel out fractions of the work of construction among separate contractors each

responsible solely to the owner for a fraction only of the entire work, the owner must be held

to be the principal employer * * * and also to be engaged for the time being in the business of

constructing the building.” Bello v. Notkins, 101 Conn. 34, 124 A. 831, 832.

In the Simon Service case the defendant was the owner, as is petitioner here, and we said

in that case “when that owner assumed an additional status * * * of being principal employer

or principal contractor, he was not eliminated [from the Industrial Insurance Act] just because

he was also the owner.” [73 Nev. 9, 307 P.2d 113.] The fact that the contract in its first

paragraph designated the petitioner as owner and Atkinson as principal contractor would not

affect their actual relationship as shown by the evidence.

The lower court is without jurisdiction to proceed in ��

�� =�� =� ��5��


the common law actions because the plaintiffs therein are limited to the compensation

provided by the Industrial Insurance Act.

Let the writ of prohibition issue.


____________

��76 Nev. 76, 76 (1960) Ex Parte Reid��

In the Matter of the Petition of DALLAS WENDELL REID For Review of Bar Examination,

1958.

No. 4174

February 23, 1960 349 P.2d 446

Proceeding in the matter of the application of Dallas Wendell Reid for a license to practice

law.

Petitioner filed a petition in the Supreme Court for review of recommendation of the

Board of Bar Examiners that petitioner be denied admission to the State Bar of Nevada

because he failed to obtain passing grade in bar examinations. The Supreme Court, Badt, J.,

held that petitioner failed to establish that he was prevented from passing the examinations

through fraud, imposition, and coercion, and was deprived of a fair opportunity to take the

examinations.

Petition dismissed.

(See also 75 Nev. 84, 335 P.2d 76.)

Petitioner in Pro. Per.

Richard W. Blakey, Chairman, Board of Bar Examiners, of Reno, for State Bar of Nevada.

1. Attorney and Client. Petitioner, who had practiced law in several jurisdictions for 21 years, and who was denied admission to

State Bar of Nevada because he did not pass written bar examinations, was not unfairly examined because

he was required to answer questions in academic examinations identical with questions propounded to a

law student recently graduated from academic study of law without any weight being given to his learning,

training, and ability as reflected by his background in the active general practice of law.

��76 Nev. 76, 77 (1960) Ex Parte Reid��

2. Attorney and Client. Where petitioner was denied admission to the State Bar of Nevada because he did not obtain passing

grade in written bar examinations, it was immaterial that Board of Bar Examiners refused to consider

additional data, which petitioner and other attorneys from other jurisdictions seeking admission in Nevada

were required to submit.

3. Attorney and Client. On petition in Supreme Court by petitioner to review recommendation of Board of Bar Examiners that

petitioner be denied admission to the State Bar of Nevada because he failed to obtain passing grade in bar

examinations, Supreme Court would not undertake to examine all of petitioner's answers to all of the

questions in the six examinations.

4. Attorney and Client. Denial of admission of petitioner to the State Bar of Nevada because he did not have a passing grade in

bar examinations was not improper because each examination paper was graded as a whole without each

question in the examinations being graded.

5. Attorney and Client. Denial of admission of petitioner to the State Bar of Nevada because he failed to obtain passing grade in

written bar examinations was not improper because an attorney had sent a letter to Board of Bar Examiners

accusing petitioner of practicing law in Nevada without a license, where it was not shown that any member

of the Board of Bar Examiners had any knowledge of such letter at time he graded petitioner's papers, and

it was shown that at time of grading the petitioner and other applicants were unknown to examiners other

than by number.

6. Attorney and Client. Denial of admission of petitioner to the State Bar of Nevada because he failed to obtain passing grade in

written bar examinations was not improper merely because Board of Bar Examiners gave no oral

examination.

OPINION


The above-captioned matter is before us on a petition for review of the recommendation of

the Board of Bar Examiners that Dallas Wendell Reid be denied admission to the State Bar of

Nevada.

Mr. Reid was 27th in rank in a class of 29 that took the 1958 Nevada State Bar

examinations. Twenty-two of the 29 passed the examination. The passing grade was� �� /#�� C��0 �� ,�� /%�!��

��76 Nev. 76, 78 (1960) Ex Parte Reid��

established many years ago as 75 percent and was in effect at the time. Mr. Reid's average

grade on all of the examinations taken was 70.4 percent. This resulted from the following

respective grades on all examinations: examination No. 1, 70 percent, examination No. 2, 73

percent, examination No. 3, 74.2 percent, examination No. 4, 64.8 percent, examination No.

5, 72.6 percent, and examination No. 6, 68 percent. It thus appears that petitioner did not

receive a passing grade in any of the subjects covered by the six separate written

examinations.

In his amended petition for review and in his oral presentation thereof in his own behalf

petitioner alleged that he was prevented from passing the examination through fraud,

imposition, and coercion, and was deprived of a fair opportunity to take the examination.

Specifically, reliance was placed upon the following contentions:

[Headnote 1]

(1) “Petitioner was required to answer questions in an academic examination identical with

the questions propounded to law students recently graduated from the academic study of the

law, which examination was not a fair test, standing alone, of petitioner's learning, training,

and ability as reflected by his background of more than twenty years in the active general

practice of the law.”

Many years ago our rules did indeed provide for a different and limited examination of

attorneys from other jurisdictions who sought admission to practice in this state. California

and possibly other jurisdictions still so provide. However, it now is and has been for a great

many years the rule and practice in this state that attorneys from other jurisdictions seeking

admission here must take the same academic examinations as all other applicants.

[Headnote 2]

(2) Attorneys from other jurisdictions seeking admission here are required to submit

additional data: a certificate of the clerk of the court in the state in which �� <�� 0 ��

��76 Nev. 76, 79 (1960) Ex Parte Reid��

the applicant last practiced certifying to his good standing in that state, the non-pendency of

any disbarment proceedings, a letter from the secretary of the local bar association of the

applicant's last place of residence certifying to his good moral character, a letter of

recommendation from the judge of the court of record before which he last practiced, and

other evidence of good moral character and fitness. Petitioner asserts that he not only

submitted this required information but that the same showed definitely his successful

practice in several jurisdictions for over 21 years. He asserts that he was fraudulently

deprived of the benefit of this evidence by the refusal of the Board of Bar Examiners to give

it any consideration. In reviewing the application of William L. Hughey for a license to

practice law, 62 Nev. 498, 156 P.2d 733, this court noted that the petitioner questioned the

rules of procedure which will not allow the board to weigh, with the academic examination,

the personalities and backgrounds of the applicants. This it rejected as any ground for

reversing the recommendation of the board, saying: “With respect to applicant's contention

that the personality and background of an applicant should be weighed along with the written

examination, it is sufficient to say that the general qualifications of an applicant will not be

substituted for the requisite knowledge of law which one must possess in order to be admitted

into the legal profession.” Accord: In Re Loer, 68 Nev. 1, 226 P.2d 272. There, as here, the

board's recommendation that the applicant be denied a license was based entirely upon his

failure to pass the written examination. Recourse to the information supplied by the National

Conference of Bar Examiners as to the applicant's ability and integrity would therefore, under

the rules, have added nothing to the situation.

[Headnote 3]

(3) During the oral presentation petitioner submitted to the court a transcript of all of his

answers to all of the questions in the six separate written examinations and asserted that even

a casual examination of his ��

��76 Nev. 76, 80 (1960) Ex Parte Reid��

answers to questions selected at random would convince the court that he was entitled to

passing grades. Petitioner's request would require the court to examine all of his answers to

all of the questions in the six examinations. This, under the circumstances presented, we will

not undertake. In Re Hughey, supra.

[Headnote 4]

(4) Petitioner contends that because, in each examination, his paper was given a

percentage grade as a whole without giving a percentage grade to each of his questions, he

was in effect deprived of an opportunity to review the gradings, and therefore “coerced into

accepting the abstract statement made by the Board of Bar Examiners that he failed to pass

the written examination.” He argues in effect that the method used is contrary to all accepted

methods of grading and was grossly improper and prejudicial. It was the method adopted by

the Board of Bar Examiners for all 29 examinees at the 1958 examination and included the

seven who failed. It is the method followed in prior examinations for many years. The point

raised however is not entirely without merit. But while it does present to the unsuccessful

applicant a measure of difficulty in determining just which of his answers in a given

examination brought his average grade on that examination to a low level, the mere fact that

the examiner used separate notes for the grading of the individual questions, from which he

gave a grade to the paper as a whole, does not in itself cast any reflection on the fairness or

the accuracy of the grade allotted. This precise objection was heretofore rejected by this court.

In Re Myles, 64 Nev. 217, 180 P.2d 99.

(5) Petitioner asserts that the Board of Bar Examiners was biased and prejudiced against

him because the law partner of a member of the Board of Bar Examiners had accused

petitioner of practicing law in the State of Nevada without a license so to practice. No proof

was offered in support of this assertion.

[Headnote 5]

(6) Petitioner asserts further however that an attorney practicing in Clark County had

written a letter likewise accusing petitioner of practicing law in Nevada �� -�� *��*��?��

��76 Nev. 76, 81 (1960) Ex Parte Reid��

without a license; that such letter had come to the attention of the Board of Bar Examiners

and had influenced one or more of them in the recommendation of the board to this court that

petitioner be denied a license to practice in this state. Such original letter was introduced in

evidence and did indeed make the accusation asserted. However, it was not shown that any

member of the Board of Bar Examiners had knowledge of such letter at the time he graded

applicant's papers. On the contrary, it was shown that at the time of such grading the

applicants were unknown to the examiners other than by number. When taking the

examination each applicant drew a number. These numbers, with the applicants' names, were

handed the secretary of the board and placed by him in a sealed envelope in his safe. The

secretary is not a member of the examining board. The names of the applicants, identified by

number, were not made known to the members of the board until after the completion of the

grading. It therefore appeared affirmatively that even if they had known of the letter in

question (of which fact the record is devoid of any proof), it could not have affected the

grades assigned.

[Headnote 6]

(7) Petitioner next refers to what formerly was designated as paragraph 5 of Rule I (now

Rule 50 S.C.R.) of the Rules of the Supreme Court, requiring the state Board of Bar

Examiners to conduct written and oral examinations of the applicant, the questions and

answers to be reduced to writing. He contends that because the Board of Bar Examiners gave

no oral examination, its recommendation that petitioner be not admitted leaves the grading of

his written examinations without force or effect in view of this direct violation of the rule.

His position apparently is that had he been permitted to take an oral examination, the same

would have at once demonstrated to the examiners his complete ability to pass an

examination in any subject concerning which he might be questioned. The assignment is

without merit. As he had failed to achieve a passing grade in any one of the six written

examinations, an oral examination could not have profited him.

��76 Nev. 76, 82 (1960) Ex Parte Reid��

In dismissing the application for review and for admission to practice notwithstanding the

adverse recommendation of the Board of Bar Examiners in In Re Myles, supra, this court

noted: “The recommendation of the board that applicant be denied a license to practice law

was based entirely upon his failure to pass the written examination.” [64 Nev. 217, 180 P.2d

101.] Likewise in In Re Hughey, supra, this court used precisely the same language. 1 It

would thus appear that the written examinations determining the academic qualifications of

the applicants as the basis for the Board's recommendation to the court have had the sanction

of this court for many years.

____________________

1

Our original statute governing admission of attorneys had no educational qualifications (Stats. 1861, p. 6),

but required applicants to produce satisfactory testimonials of good moral character and to undergo a strict

examination in open court as to his qualifications “by one of the judges of the Supreme Court of this territory.”

Section 5 of the original act also permitted admission by “the district court of this territory” under a like

showing. Several sections of this statute were amended in 1871, requiring an applicant to undergo only such

examination “as the Supreme Court may direct,” and providing that in its discretion such examination and

testimonials might be dispensed with. Cutting's Compiled Laws of Nevada, 1900, sec. 2614. In 1875 (Stats.

1875, p. 142) the Supreme Court on application of a district judge was required to appoint a committee to

examine applicants under rules and regulations to be prescribed by the Supreme Court and to report their

recommendations to the Supreme Court. Under Compiled Laws, sec. 2618, an attorney admitted in a sister state

could be admitted in Nevada upon his affidavit of such admission or upon submission of his license showing

such admission. This was carried forward into the Revised Laws of 1912 as sec. 504, with a slight amendment as

to admission of foreign attorneys. Since the enactment of the State Bar Act in 1928, now NRS 7.270 et seq.,

authorizing the Board of Governors, with the approval of the Supreme Court, to appoint a committee of bar

examiners, NRS 7.490, and the promulgation of former Rule I of the Rules of the Supreme Court (particularly

Rule 50 S.C.R.), it is doubtful that any oral examinations have been given save by Albert D. Ayres, Esq., when

acting as chairman of the Board of Bar Examiners (1934-1941), but those oral examinations were restricted for

the most part to the history of the United States and the history of the State of Nevada. There are not in the files

of the present Board of Bar Examiners or of the present Board of Governors or of the clerk of this court (since

the files of examinations have been kept by him since March 1951) any record of the transcript of questions and

answers of any oral examination. It may be accepted as a fact that for a great many years any resort to an oral

examination has been abandoned.

��76 Nev. 76, 83 (1960) Ex Parte Reid��

(8) Petitioner took the deposition of one of the members of the Board of Bar Examiners

and that deposition was introduced in evidence. The applicant examined such member at

considerable length as to how he formulated his questions in the examination subject

assigned to him. Petitioner severely criticized the method thus developed, but, without

discussing the question, we may simply express our conviction that the method was in all

respects proper.

Petitioner's oral argument developed sundry other complaints attacking the integrity,

motives, and good faith of the members of the Board of Bar Examiners and the members of

the State Bar of the State of Nevada in general, without any supporting evidence. With this

we do not find it necessary to deal.

The petition is dismissed.


____________

��76 Nev. 83, 83 (1960) Western American Corp. v. American Universal��

WESTERN AMERICAN CORPORATION, a Corporation, Appellant v. AMERICAN

UNIVERSAL INSURANCE COMPANY, Respondent.

No. 4237

February 23, 1960 349 P.2d 615

Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge,

Department No. 1.

Action by insurer's subagent against insurer's general agent based on assignments of

insured's claim against general agent for return of premiums on insurance policies which were

cancelled. The trial court entered judgment for general agent, and subagent appealed. The

Supreme Court, McNamee, C. J., held that since insureds had received settlement in full of

their claims for refund of unearned premiums they had ��


nothing to assign to subagent and hence insureds could not confer on their assignee any

greater right than possessed by them.

Affirmed.

(Petition for rehearing denied March 4, 1960.)

Stewart, Horton and Free, of Reno, for Appellant.

Vargas, Dillon & Bartlett, and Alex. A. Garroway, of Reno, for Respondent.

Assignments.

Where insured had received settlement in full of their claims for refund of unearned premiums on

insurance policies which had been cancelled, insureds had nothing to assign to insurer's subagents, since

insureds could not confer upon subagents any greater right than that possessed by insureds, and therefore

subagents acquired no cause of action against general agent by reason of such assignments.

OPINION


Respondent is an insurance company authorized to write insurance in Nevada. Its general

agent for the Western States is Benson Company of Utah. Appellant as subagent for Benson

Company sold policies of respondent through appellant's own subagents. We are concerned

here with two such policies of respondent which were written by subagents of appellant. The

premiums thereon had been paid by each insured. Thereafter respondent cancelled said

policies and the return premium in each case was paid to the insured by appellant's subagents.

The practice had been for the subagents of appellant, when a policy was sold, to give credit

on their books for the premium to appellant's account. Appellant in turn credited Benson's

account, and Benson thereafter credited respondent's account. In each case the commission

was deducted. On a refund of premium the reverse took place. Monthly statements passed

between these parties in which all items were adjusted, and sometimes ��, ��


checks accompanied the statements to satisfy the accounts.

After the cancellation of the said two policies, the credit balance in favor of appellant on

the books of Benson was some several thousand dollars which included the said two premium

refunds.

Approximately six months after appellant had received credit on Benson's books for said

refunds and each insured had received in full the refund from appellant's subagents, appellant

obtained from each insured a written assignment of any claim the insured had against

respondent for the return premium, and two separate suits were commenced in the court

below by appellant based on the two assignments. The trial court entered judgment for

respondent in each case on the ground that no claim existed which could be assigned. 1

The two appeals from said judgments have been consolidated for argument and decision.

It would appear that appellant, although paying to its subagents the unearned premiums

amounting to $6,539.44 (or giving them credit therefor) which amount was in turn paid to the

insureds received no reimbursement for this amount other than the credit on the books of

Benson. Appellant now contends that since Benson has not settled its account with appellant,

appellant should be able to recover this sum from Benson's principal, to wit, from respondent.

However, as stated above, suit was not based on that theory. The actions below were based

solely on the two assignments alleged in the complaints and the trial was limited to the issues

raised by such allegations. Respondent maintains that since the insureds had received

settlement in full of their claims for refund of the unearned premiums, they had nothing to

assign to appellant. This is of course correct. The insureds could not have sued respondent,

because their claims had been satisfied in full. They could not then confer on appellant, their

assignee, any greater right than that possessed by them.

____________________

1

The trial court gave two other reasons for its conclusion which are unnecessary to be considered on appeal.


Gate-Way, Inc. v. Hillgren D.C., 82 F. Supp. 546; Tillett v. Rodgers, D.C., 85 F.Supp. 356.

Appellant therefore acquired no cause of action against respondent by reason of the said

assignments.

Both actions affirmed with costs to respondent.

Badt, and Pike, JJ., concur.

____________

��76 Nev. 86, 86 (1960) Hacienda Gift Shop v. Las Vegas Hacienda��

HACIENDA GIFT SHOP, Inc., Appellant, v. LAS

VEGAS HACIENDA, Inc. Respondent.

No. 4220

February 26, 1960 349 P.2d 613

Appeal from judgment of the Eighth Judicial District Court, Clark County; A. S.

Henderson, Judge, Department No. 2.

Action against hotel corporation for specific performance of agreement to execute lease to

gift shop corporation. The trial court entered judgment for hotel corporation, and gift shop

corporation appealed. The Supreme Court, Pike J., held that entry into possession of portion

of hotel lobby, payment of rents, and purchase of merchandise by gift shop corporation, with

knowledge of hotel corporation, after receipt from third party, who allegedly was agent of

hotel corporation, of agreement to execute five-year lease with renewal option were just as

consistent with month-to-month tenancy as with a leasehold, and could not serve as basis for

ratification of third party's acts by hotel corporation.

Judgment affirmed.

Foley Bros., of Las Vegas, for Appellant.

Calvin C. Magleby, of Las Vegas, for Respondent.

1. Corporations.In action against hotel corporation for specific performance of agreement to execute lease to gift shop

corporation, ��


evidence supported finding that third party who wrote letter constituting agreement to execute lease to gift

shop corporation had no authority as agent to bind hotel corporation. NRS 111.210.

2. Corporations. Entry into possession of portion of hotel lobby by gift shop corporation, payment of rents, and purchase

of merchandise with knowledge of hotel corporation after receipt from third party, who allegedly was agent

of hotel corporation, of agreement to execute five-year lease with renewal options, were just as consistent

with month-to-month tenancy as with a leasehold, and could not serve as basis for ratification of third-party

acts by hotel corporation.

3. Evidence. In action against hotel corporation for specific performance of agreement to execute lease to gift shop

corporation which had entered into possession of portion of hotel lobby, paid rents, and purchased

merchandise with knowledge of hotel corporation after receipt from third party, who allegedly was agent of

hotel corporation, of the agreement, it was within power of trial court not to give credit to evidence offered

to show ratification by hotel corporation after claims to leasehold were asserted.

4. Corporations. In action against hotel corporation for specific performance of agreement to execute lease to gift shop

corporation, evidence did not compel finding precluding, under principles of estoppel, denial by hotel

corporation of authority of third party as agent to bind hotel corporation to the agreement.

OPINION


Appeal from judgment of the trial court, refusing to appellant specific performance of an

agreement to execute a lease.

Appellant corporation brought suit seeking a judgment requiring respondent hotel

corporation to execute a lease to appellant. Appellant takes this appeal from the judgment of

the trial court refusing such relief.

The trial court based its decision and judgment in favor of respondent on two grounds, one

of which was lack of authority on the part of one Jacob Kozloff to act as agent for respondent

in entering into the writing relied upon by appellant as constituting an agreement to enter into

a lease. The writing relied upon by appellant � �� 1�� +��3��12#3��B��5��


as a written memorandum of such nature as to comply with the requirements of the statute of

frauds 1 was a letter dated July 6, 1956, written to one George Altman. Such letter written

and delivered to Altman by Kozloff at Altman's request stated that it confirmed their

conversations regarding a lease to Altman from the Hacienda Hotel for the operation of a gift

shop at such hotel. It stated that it was agreed that Altman was to have an adequate location

for the sale of items customarily sold in gift shops for a period of five years, with options to

renew, and that such agreement was to be reduced to writing “in more final form on behalf of

the Hacienda Hotel.” It also stated that the lessor would furnish all fixtures except the cash

register, and that rental would be based upon specified percentages of gross sales. The letter

stated that it would serve as the basis for the lease agreement so that Altman might rely on it

to purchase merchandise for sale.

So far as appears in the record, Altman, who was experienced in merchandising of the

indicated type, sought the lease for himself. Kozloff, during the period of his negotiations

with Altman, prior to July 6, 1956, had an agreement with respondent corporation and related

corporate and partnership entities interested in the hotel and its operation, that he would be

the lessee and operator of the casino at the new resort-type hotel. This agreement was,

however, conditioned upon Kozloff being licensed by the state gaming control authorities to

conduct the contemplated gaming operations.

Appellant contends in effect that Kozloff's relationship to the hotel during the period just

referred to, was likewise that of agent for the purpose of obtaining ��

____________________

1

NCL 1929, secs. 1529 and 1530, reading as follows: “Every contract for the leasing for a longer period than

one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or

memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the

lease or sale is to be made.

“Every instrument required to be subscribed by any person under the last preceding section may be

subscribed by the agent of such party lawfully authorized.”

(These statutory provisions, in substance, are now found in NRS 111.210.)


lessees of portions of the lobby premises, to be used for various types of shops, including the

gift shop now under discussion.

After obtaining the July 6, 1956 letter, signed by Kozloff, Altman caused appellant

corporation to be formed, which qualified on July 28, 1956 to do business in Clark County,

Nevada, in which the said hotel is situated. Such corporation had as its three stockholders,

Altman, his wife, and a third person. Nowhere in the record does there appear an assignment

by Altman of any rights that he had to a lease as evidenced by the Kozloff letter. Altman, as

an individual, was not a party to the suit brought by appellant corporation to compel the

execution and delivery of the lease by respondent and, of course, is not a party to this appeal.

The record is obscure upon what appellant corporation based its right to specific performance,

but such contention appears to find its greatest support in the connected facts of Altman's

having received the letter from Kozloff and having thereafter formed appellant corporation

for the operation of the gift shop business. However, we may leave this question of a valid

assignment of Altman's rights undetermined and decide the question of whether or not the

record justifies the conclusion that Kozloff had real or apparent authority to act as the agent

for respondent hotel corporation.

The record shows that on or about July 24, 1956 the state gaming control authorities

refused to issue the license required by Kozloff for his operation of the hotel's casino, and

Kozloff's connection with the enterprise appears to have terminated at that time. Kozloff

testified that the respondent corporation was to operate the hotel and that another corporation

was to operate the casino on the hotel premises.

He identified Warren Bayley, chairman of the board of directors of respondent, as one of

the men participating in conversations in which Kozloff “* * * was instructed to seek out

proper people to lease out the different concessions * * *” including the gift shop. Kozloff's

testimony was far from specific in indicating ��


just what had been said and by whom in the conversations referred to. He did, however,

testify that he talked to Altman and, as a result of the discussions, recommended that Altman

be given a lease, and that he had notified Altman to that effect, and that the terms appearing

in the July 6, 1956 letter were agreed upon between him and Altman. He did not testify that

Warren Bayley, whom he characterized as the person who “* * * exercised full authority in

all the corporations,” ever gave his approval to the proposed lease to Altman. Similarly, he

failed to testify that any other person with either actual or apparent authority to act upon

behalf of respondent corporation ever authorized or approved the lease arrangement referred

to in Kozloff's letter to Altman.

Concerning his conversations had with Kozloff and also with Altman, Bayley testified

with reference to discussions concerning prospective tenants that he had told Kozloff that he

would like to have Kozloff refer any interested tenants for the concessions to Bayley for

further discussions, and that Kozloff had no further authority in that regard. He testified that

only the board of directors of the corporation had the authority to grant leases on the hotel

premises.

[Headnote 1]

The trial court apparently was satisfied from this uncontradicted evidence and made its

findings upon which judgment was entered that Kozloff had no authority as agent to bind the

respondent corporation in any agreement to execute a lease covering the gift shop area in the

hotel lobby. Such findings and judgment find substantial support in the evidence.

[Headnotes 2-4]

Appellant contends that there was a ratification by respondent of Kozloff's acts based

primarily upon appellant's entry into possession, payment of rents, and purchase of

merchandise, all with the knowledge of respondent. However, these facts alone were just as

consistent with a month-to-month tenancy as with a leasehold. Ballard v. Nye, 138 Cal. 588,

597, 72 P. 156; ��,��8�� 1%"�)��5��


Schomaker v. Petersen, 103 Cal.App. 558, 285 P. 342, 347. The court did not give credit to

the evidence offered to show ratification by respondent after the tenant's claims to a leasehold

were asserted. This was within the power of the trial court. Neither do we find support in the

record for appellant's contention that Kozloff had apparent authority and that respondent was

estopped from denying such authority, as it does not appear that respondent through its

officers or authorized agents so conducted itself as to cause appellant to believe that Kozloff

was respondent's agent. So far as appears, it was Kozloff himself who made representations

as to his authority, and no sufficient circumstances were present to compel a finding

precluding a denial of Kozloff's authority by respondent under principles of estoppel or

ratification of Kozloff's acts.

Judgment affirmed.


____________

��76 Nev. 91, 91 (1960) Moe v. Silvagni��

In the Matter of the Estate of

PIETRO OTTAVIO SILVAGNI

OLGA SILVAGNI MOE, Appellant, v.

MICHELE SILVAGNI, Respondent.

No. 4229

March 4, 1960 349 P.2d 1067

Appeal from Eighth Judicial District Court, Clark County; David Zenoff, Judge,

Department No. 1.

Civil action. From a judgment of the trial court appointing the respondent as administrator

with the will annexed and granting to him letters of administration, the petitioner appealed.

The Supreme Court, Badt, J., held that an appeal from a judgment must be dismissed as moot.

Appeal dismissed.

��76 Nev. 91, 92 (1960) Moe v. Silvagni��

Morse, Graves and Compton, and Raymond E. Sutton, of Las Vegas, for Appellant.

Jones, Wiener and Jones, of Las Vegas, for Respondent.

Executors and Administrators.

An appeal from a judgment appointing another as administrator with the will annexed and granting to

him letters of administration must be dismissed as moot in view of opinion of the Supreme Court

directing further proceedings in the district court for the appointment of another as executor of the same

will of the same testator involved in the instant appeal.

OPINION


Olga Silvagni Moe has appealed from the judgment appointing Michele Silvagni

administrator with the will annexed and granting to him letters of administration with the will

annexed.

The issue as to who should or should not be appointed administrator with the will annexed

has been rendered moot by our opinion and decision of this date in case No. 4238, In the

Matter of the Estate of Pietro Ottavio Silvagni, Deceased, Thomas A. Foley, Appellant, v.

Michele Silvagni, Respondent, 76 Nev. 93, 349 P.2d 1062, in which we directed further

proceedings in the district court for the appointment of Thomas Foley as executor of the same

will of the same testator involved in this appeal. This appeal is accordingly dismissed.


____________

��76 Nev. 93, 93 (1960) Foley v. Silvagni��

In the Matter of the Estate of

PIETRO OTTAVIO SILVAGNI, Deceased.

THOMAS A. FOLEY, Appellant, v.

MICHELE SILVAGNI, Respondent.

No. 4238

March 4, 1960 349 P.2d 1062


Department No. 1.

Proceeding on a petition for letters testamentary. From an adverse judgment of the lower

court the petitioner appealed. The Supreme Court, Badt, J., held that a document designated

the “court's decision” was a final appealable order and that petitioner who was appointed by

the testator as executor of the will was entitled to letters of administration and to revoke his

renunciation of appointment and to have letters issued to him.

Motion to dismiss appeal denied. Order denying letters testamentary to appellant

reversed.

(Petition for rehearing denied April 6, 1960.)

A. W. Ham and A. W. Ham, Jr., of Las Vegas, for Appellant.


1. Appeal and Error.

The fact that a later order was later in time than a prior order would not in itself detract from the finality

of the prior order, if it were otherwise a final and appealable order.

2. Appeal and Error. A “court's decision” which after reciting preliminary matters ordered that the petition of the petitioner for

letters testamentary be denied and that another be appointed administrator and that letters of administration

be issued to him was appealable as a final appealable order. NRS 155.190; NRCP 75 (a, h).

3. Executors and Administrators. Absent any right of discretion created by a statute, no discretion rests in the probate court in respect to the

issuance of letters testamentary to a person nominated in the will. NRS 138.010, 138.020.

4. Executors And Administrators. The testator has the absolute right to select the executor �� ,�� ,��


to carry out his will to like extent that he has absolute right to make disposition of his property as he

chooses. NRS 138.010, 138.020.

5. Executors and Administrators. Where one appointed by a testator as executor of his will renounced his trust, but only four days after the

court's order appointing another as administrator with the will annexed while the estate was being

administered by a special administrator and while litigation was pending to determine who should be

appointed as administrator with the will annexed and before the issuance of any letters of administration he

revoked his renunciation and filed his petition for letters testamentary, the executor had the right to revoke

his renunciation and to have letters issued to him. NRS 138.010, 138.020.

6. Executors and Administrators. The probate court had the duty in admitting the will to probate to follow the testator's direction and to

order the issuance of letters testamentary to the person appointed by the testator in his will as his executor

upon the appointee's compliance with the statutory requirements. NRS 138.010, 138.020.

OPINION

On Motion to Dismiss Appeal


Respondent has moved to dismiss appellant's appeal on the ground that it is not taken from

any final, appealable judgment or order. The notice of appeal is from what is designated as

“Court's Decision” filed June 2, 1959, which, after reciting certain preliminary matters, orders

that the petition of Foley for letters testamentary be denied and that Michele Silvagni be

appointed administrator with the will annexed and that letters of administration with the will

annexed be issued to him upon his taking the oath of office and giving bond as required by

law in the sum of $75,000. These particular orders are quoted in haec verba in the notice of

appeal. NRS 155.190 provides that an appeal may be taken to the supreme court “from an

order or decree: 1. Granting or revoking letters testamentary or letters of administration. * * *

13. Refusing to make any order heretofore mentioned in this section * * *.”

[Headnotes 1, 2]

Respondent contends that an order filed June 3, 1959, �� &@��7��>�� (� ��(�� 5�


designated “Order Denying Letters Testamentary to Thomas A. Foley,” is the only final order

from which Foley could have appealed, and purports to show the existence of such order by

attaching a certified copy thereof to his motion. The asserted order of June 3, 1959 is not

included in the record on appeal nor was it designated either in appellant's designation of

record or respondent's counter designation (Rule 75(a) NRCP). No diminution of record has

been suggested (id. 75(h)), nor does it appear that appellant was ever served with a copy of

said order of June 3, 1959 or with a notice thereof (Rule 5(a) NRCP). Even if we may

consider the asserted order of June 3, the mere fact that it is later in time than the order of

June 2 would not in itself detract from the finality of the order of June 2 if the latter is

otherwise a final, appealable order. Such we hold it to be. It is a written order, signed and

filed by the district judge, denying Foley's petition for letters testamentary. The mere fact that

the document is entitled “Court's Decision” does not alter its obvious and patent character.

The motion to dismiss the appeal and the motion to strike the record on appeal, coupled

therewith, must be denied.

On the Merits

Foley's appeal from the order denying his petition for letters testamentary is closely

associated with the appeal now pending and submitted to this court in case No. 4229, 76 Nev.

91, 349 P.2d 1067, in which Olga Silvagni Moe has appealed from the court's order denying

her petition for letters of administration CTA and granting the petition of her brother Michele

Silvagni for letters of administration CTA of the estate of Pietro Ottavio Silvagni, deceased.

The transcript of record in that appeal is before us to serve the purposes of both appeals. We

are thus in the main furnished with information (with the exception of several missing filings)

as to the nature and chronological order of the filings and proceedings leading up to the order

from which the present appeal is taken. From this the following appears: @��7�� 12# ��


On December 28, 1958 the testator died, leaving two instruments of a testamentary nature,

each of which appeared valid on its face. One was a will, dated October 21, 1955, which

appointed Thomas A. Foley, the appellant herein, as executor, and one, a will, dated October

24, 1955, which appointed Michele Silvagni executor. This later will of October 24, 1955

apparently disappears from consideration in the proceedings below and in any points raised in

this appeal. We gather from the record that although this later will bore the signature of the

testator and of the two subscribing witnesses, under proper testimonial clauses and proper

certificates of the witnesses, the will was not executed by the testator in the presence of the

witnesses, nor did the witnesses sign in the presence of the testator, nor did the testator ever

declare to the witnesses that the document was his will, or that he requested them to attest the

same as witnesses. Be this as it may, the will of October 24, 1955 plays no part in this appeal

other than the fact that prior to the time Mr. Foley renounced his right to letters under the will

of October 21, 1955, he had been shown a photostat or Verifax copy of the purported will of

October 24, 1955 naming Michele Silvagni as executor and was advised by the attorney for

Michele Silvagni that such will was a later valid will naming another person as executor.

In January 1959 Michele Silvagni offered both wills for probate, in the alternative, seeking

either letters testamentary of the later will or letters of administration with the will annexed of

the earlier will. Olga Silvagni Moe, his sister, contested both wills.

On January 22, 1959 Foley renounced his right to letters testamentary under the earlier

will.

On May 5 and 6, 1959 Olga's contest of the probate of the will of October 21, 1955 was

heard by the court with a jury. At a later hearing on May 29, 1955 (after dismissal of the jury

on May 6, 1955) Mr. Foley, called as a witness by Michele Silvagni as the proponent of the

will of October 21, 1955 and in support of Michele's petition for letters testamentary CTA,

testified that he had renounced his right to act as executor “because of �� '�� E��@��!��12##�� &�� F��@��1��12##G�'


an adverse interest,” and also that the photo copy or Verifax copy of the purported will dated

October 24, 1955 had been submitted to him “prior to my relinquishing any right under the

will [of October 21, 1955].”

On May 11, 1959 the court filed its judgment reciting the abandonment of all protests to

the admission to probate of the will of October 21, 1955, admitted said will to probate, and

ordered that Michele Silvagni “will be appointed administrator with the will annexed” after

the expiration of ten days, and that letters of administration CTA be issued to him upon his

taking oath and giving bond.

On May 15, 1959 Foley filed his petition for letters testamentary and revoked his

renunciation of January 22, 1959, alleging that same was made under a mistake of fact,

namely, that he had an adverse interest.

On May 21, 1959 Olga Silvagni Moe filed her objection to the appointment of Michele

Silvagni as administrator CTA, asserting the latter's adverse interests growing out of litigation

prosecuted by him against the estate, that he had theretofore been convicted of a felony, that

he had thereafter uttered forged checks, and that he was not a suitable person to act as

administrator CTA. Appeal from the order granting letters of administration CTA to Michele

has heretofore been argued to this court in appeal No. 4229 and is now under submission.

The court minutes of June 2, 1959 show the court's order denying Foley's request to

withdraw his renunciation, overruling Olga's objection to the appointment of Michele,

denying Foley's petition for letters testamentary, and ordering that Michele be appointed

administrator with the will annexed and that letters of administration CTA issue to him upon

his taking oath of office and giving bond in the sum of $75,000, to be approved by the court.

The written order of June 2 to like effect, hereinabove referred to, was likewise filed on said

day.

On May 29, 1959 the court heard sundry matters in addition to Foley's petition for letters

testamentary and in addition to Michele Silvagni's objections thereto and ��@��C�0 ��


in addition to Olga Silvagni Moe's petition for the appointment of some qualified person as

administrator with the will annexed. At the beginning of the hearing the court was asked by

Foley's attorney to take judicial notice that at that point letters had not been issued—either

testamentary or of administration. The court announced “That is the state of the record * * *.

The court is aware of it.”

It was not until June 3, 1959 that Michele's bond was approved and letters of

administration CTA were issued to him.

The learned district judge, in the document filed June 2, 1959 denominated “Court's

Decision,” recited the following as his reasons and grounds for denying Foley's right to

withdraw his renunciation and denying his petition for letters testamentary:

“As to the claim of Thomas Foley to now withdraw his renunciation, the Court exercises

its discretion in denying such request. Thomas Foley renounced originally, and the Court

appointed Michele Silvagni as special administrator. Originally Thomas Foley testified that

the reason he renounced was because his interests were adverse. Subsequently, he testified

that they were no longer adverse, but there is nothing in the record to show of what the

adversity consisted nor in what way it is now cleared.

“Certain acts necessary to be done in the handling of the estate in the early stage following

the death of the testator were done by Michele Silvagni as special administrator. Too,

Michele Silvagni has been closely associated along with his brother, Vittorio, in the handling

of their father's affairs during his lifetime. Either of them has far more immediate, particular

and peculiar knowledge of the affairs of their father and the estate than Attorney Thomas

Foley. There is no reason now to upset the inner workings of the estate and substitute a

stranger in the place of one not only named as a principal legatee in the Will admitted to

probate, one in whom it appears obvious that the intention of the testator is to repose trust and

confidence, but also one thoroughly familiar with the aforesaid affairs of the estate.”


In connection with such order and with the other proceedings above recited, it should be

remembered that Michele Silvagni had been appointed as special administrator and special

letters were issued to him and that he is at the present time still acting as such. It would not

appear that the affairs of the estate, said to be of a value of some two million dollars, are

being prejudiced by the absence of either an executor or of an administrator with the will

annexed.

[Headnotes 3, 4]

It must be conceded that if the situation was one in which the court had a right to exercise

its discretion, if, for example, the court had been acting upon competing and adverse petitions

of Thomas Foley and Michele Silvagni under no controlling statutory provision, the points

mentioned by it would justify an exercise of that discretion in granting letters of

administration to Michele and denying them to Mr. Foley. Such, however, is not the case. The

testator appointed Foley as executor of the will. Under NRS 138.010, if the will is admitted to

probate, “the district court shall direct letters thereon to issue to the person or persons named

in the will to execute the same, who may be competent to discharge the trust, and who shall

appear and qualify.” Under sec. 138.020 a person is not competent to serve as executor who

at the time of the admission of the will to probate is under the age of majority or who shall

have been convicted of a felony or who, upon proof, shall have been adjudged by the court

incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or

want of integrity or understanding. Foley derived his right to letters not from any familiarity

with the business or affairs of the testator during the latter's lifetime, or because of any

immediate particular and peculiar knowledge of such affairs or because there was no danger

that he might upset the inner workings of the estate or because he was a principal legatee

under the will or because of any of the other reasons or implications considered by the learned

district judge. He derived his right to letters from the testator. The testator's will in so

appointing him ranks equally (subject of course to possible statutory disqualification) with the�� 0 ��


testator's will in the disposition made of his estate. Absent any right of discretion created by

statute, no discretion rests in the probate court in respect to the issuance of letters

testamentary to the person nominated in the will. The testator has the absolute right to select

the executor to carry out the provisions of his will to like extent that he has the absolute right

to make disposition of his property as he chooses—both being subject only to statutory

limitations. Anno., 95 A.L.R. 828, “Power of court to refuse letters testamentary to one

named in will as executor, absent specific statutory disqualification”; Holbrook v. Head, 9

Ky. L.Rep. 755, 6 S.W. 592; In re Flood's Will, 236 N.Y. 408, 140 N.E. 936. See In re

Minnie P. Holland's Estate, 139 N.Y.S.2d 63.

Despite the foregoing, respondent supports the court's order denying letters testamentary to

Foley by Foley's prior renunciation, which he revoked before the issuance of letters

testamentary to Michele. He relies upon NRS 138.020 which provides in part: “If any such

person * * * named as the sole executor * * * shall renounce the trust * * * letters of

administration with the will annexed shall issue.”

[Headnote 5]

As noted, Foley renounced his trust on January 22, 1959, but on May 15, 1959, only four

days after the court's order of May 11, while the estate was being administered by a special

administrator and while litigation was pending to determine who should be appointed as

administrator with the will annexed, and before issuance of any letters of administration, he

revoked his renunciation and filed his petition for letters testamentary. The rule in such case

is likewise well established to the effect that he had a right to revoke his renunciation and to

have letters issued to him. Nunn et al. v. Hamilton, 233 Ky. 663, 26 S.W.2d 526; In re

McNichol's Estate, 282 Pa. 187, 127 A. 461; In re Dunham's Will, 150 N.Y.S. 692; In re

True's Estate, 120 Cal. 352, 52 P. 815; Anno., 153 A.L.R. 227; 33 C.J.S. 919, Executors and

Administrators, sec. 29; 21 Am.Jur. 431 cited In re B��0 �? ��1##�H��


Grattan's Estate, 155 Kan. 839, 130 P.2d 580, 590; Davis v. Inscoe, 84 N.C. 396, Ann.Cas.

1916 D 1304.

It should be remembered that Michele's petition for letters filed January 7, 1959 had

attached to it the document of October 24, 1955, which on its face was a later will than the

will of October 21, 1955 appointing Foley as executor, and that on January 22, 1959 Michele

filed an amended petition asking for letters testamentary under the apparently valid later will

or, in the alternative, for letters of administration with the will annexed under the earlier will.

Again he prayed for admission to probate of the later will naming him as executor. He alleged

that the later will was a valid will. The trial court's judgment of May 11, 1959 established for

the first time that the later will was not valid. Four days later, on May 15, 1959, Foley

revoked his renunciation and petitioned for letters testamentary.

[Headnote 6]

Respondent has submitted authorities which he asserts sustain his view that the court had

the right to exercise its discretion in refusing to accept the revocation of the renunciation and

that the mandatory provision of NRS 138.020 requires letters of administration with the will

annexed to issue to respondent. An examination of those authorities satisfies us that the same

are not in point. It was incumbent upon the probate court in admitting the will to probate to

follow the testator's direction and to order the issuance of letters testamentary to appellant

upon appellant's compliance with statutory requirements. It is suggested in respondent's brief

that Foley failed to give the notice required by statute of the hearing of his petition for probate

and for letters testamentary. This, as well as other procedural matters, may require the

attention of the probate court.

Reversed and remanded for further proceedings in accordance herewith.


____________

��76 Nev. 102, 102 (1960) Foley v. Carson��

THOMAS A. FOLEY, Appellant, v.

LOUISE K. CARSON, Respondent.

No. 4230

March 10, 1960 349 P.2d 1056

Appeal from judgment of the Eighth Judicial District Court, Clark County; A. S.

Henderson, Judge, Department No. 2.

Action for recovery of certain funds placed with an escrow holder for investment in a

hotel. The lower court entered judgment against escrow holder, and he appealed. The

Supreme Court, Pike, J., held that where plaintiff placed certain of her funds with an escrow

holder for future investment in a hotel, and under the escrow instructions the money was to be

retained until plaintiff was approved for state and city gaming licenses, even though escrow

holder released such funds prior to approval of plaintiff, in view of fact that such release of

funds had no relationship to plaintiff's loss which was due to fact that hotel became

financially involved shortly after release of the funds, followed by bankruptcy proceedings,

escrow holder could not be held liable for the loss.

Judgment reversed.

(Petition for rehearing denied April 8, 1960.)

Morse, Graves & Compton; Ham and Ham, of Las Vegas, for Appellant.


1. Escrows. Even though there might not be a strict compliance by an escrow holder with conditions and instructions

under which he was authorized to deliver funds, in order for liability to result there must have been a causal

relationship between such noncompliance and loss of the funds.

2. Escrows. Where plaintiff placed certain of her funds with an escrow holder for future investment in a hotel, and

under the escrow instructions the money was to be retained until plaintiff was approved for state and city

gaming licenses, even though escrow holder released such funds prior to approval of plaintiff, in �� 0 �� ,��


view of fact that such release of funds had no relationship to plaintiff's loss, which was due to fact that hotel

became financially involved shortly after release of the funds, followed by bankruptcy proceedings, escrow

holder could not be held liable for the loss.

OPINION


Appeal from a judgment of the trial court. The trial court found that appellant, as an

escrow holder of $12,000 of respondent's funds placed with him by her, had released such

funds without first requiring compliance with certain conditions entitling him to do so. From

this finding the court concluded that the respondent was entitled to recover the amount of

such funds from appellant, and entered judgment accordingly.

Respondent's funds in the indicated amount had come into the possession of appellant as

an escrow holder under the following conditions. One Louis Rubin was one of a group of

persons interested in the planned opening and operation of a hotel and casino at Las Vegas, to

be known as the Moulin Rouge. On March 23, 1955 Rubin wrote Mrs. Louise K. Carson,

respondent herein, concerning procedures required to be followed by her to join Rubin and

others as a partner in the contemplated hotel and casino operation. His letter informed her that

certain partners in the enterprise then had applications pending for gaming licenses before the

Nevada State Tax Commission. His letter went on to inform her that no sale to her of an

interest in the partnership could be made until after such partners had been so licensed by the

commission, but that after such licensing she should deposit her purchase money with the

attorney for the Moulin Rouge operation, Thomas A. Foley of Las Vegas, Nevada, appellant

herein. The letter then stated, “Said deposit shall remain in trust with the aforesaid attorney

and shall not be utilized by Moulin Rouge until such time as you have received the approval

of the Nevada State Tax Commission and the City of Las Vegas. Upon said approval, you

will receive �� 1I��1J�� .1��%%%�%%

��C��'


evidence of ownership to the extent of 1/2 of 1%, and the sum of $12,000.00 shall be

delivered to Moulin Rouge.”

Rubin signed this letter as an individual, and on March 26, 1955 Mrs. Carson endorsed on

the letter her acceptance and approval of its terms. Thereafter, on April 11, 1955 respondent

wrote to appellant, enclosing her check of that date for $12,000 payable to Moulin Rouge,

and inquired in what manner she would be notified when and where to appear in connection

with her applications for gaming license.

By letter dated April 19, 1955 appellant acknowledged receipt of this letter and the check,

stated that he would not present the check for cashing until the license was granted to Moulin

Rouge and that, with respondent's permission, he would thereafter deposit her check for

collection in his escrow account, “. . . and thereafter hold the same until such time as you,

personally, are licensed by the Nevada Tax Commission.”

Respondent and her husband went to the office of Don Ashworth, a Las Vegas accountant,

on May 11, 1955 and there respondent executed the necessary papers relating to her

applications for state and city gaming licenses.

On July 25, 1955 Foley received information by telephone from a state gaming control

official that Mrs. Carson had been approved for a state gaming license, and on July 28, 1955

she was so licensed. After receiving the information that Mrs. Carson's application had been

approved on July 25, 1955 appellant on that same date delivered the funds to Rubin.

The trial court found that appellant, as escrow holder, was required “. . . to retain said

money until the Nevada Tax Commission and the City of Las Vegas had approved the

application of plaintiff herein as a licensee for the gaming operation of said Moulin Rouge

Hotel . . .” The trial court also found that appellant delivered the funds to the Moulin Rouge

hotel on July 25, 1955 although respondent was not “approved” for a state gaming license

until July 28, 1955 and was never approved for a city gaming license.


Additional findings of the trial court were that the funds were not delivered by the escrow

holder to Rubin in accordance with the agreement (the letter of March 23, 1955) between

respondent and Rubin, or in accordance with respondent's instructions to the escrow holder.

The trial court concluded as a matter of law that respondent was entitled to recover from

the escrow holder the entire amount of the funds which she had deposited with him, and

entered judgment accordingly, from which judgment this appeal has been taken.

[Headnote 1]

Even though there may not have been a strict compliance by the escrow holder with the

conditions and instructions under which he was authorized to deliver respondent's funds to

Rubin, in order for liability to result there must be a causal relationship between such

noncompliance and the loss of the funds. Sideris v. Northwest Bonded Escrows, Inc., 51

Wash.2d 851, 322 P.2d 349; Phoenix Title & Trust Co. v. Horwath et ux, 41 Ariz. 417, 19

P.2d 82, 87; Collier v. Smith, Mo.App., 308 S.W.2d 779, 784.

It is not claimed, nor is there any evidence to indicate there were any improper motives on

the part of the escrow holder, and from the record it does not appear that appellant's deviation

from a strict compliance with what may be viewed as his escrow instructions, was responsible

for the loss of respondent's funds. True, appellant released the funds to Moulin Rouge on July

25, 1955, three days before respondent was licensed by the state in the gaming operation in

which she sought to use her funds to purchase a partnership interest. In the absence of damage

resulting therefrom, the breach of instructions was immaterial. Also, although the court found

that respondent was never approved as a gaming licensee for the Moulin Rouge gaming

operations by the city of Las Vegas authorities, the record does disclose circumstances of an

implied approval.

In this regard the record shows that sometime between May 11, 1955, when Mrs. Carson

applied for her city gaming license, and May 24, 1955, the opening date of ��C�� >� �E�� ,�� /�� C��


the Moulin Rouge hotel and casino, the board of city commissioners of Las Vegas had taken

action with reference to a group of some 27 applicants, including respondent, for city gaming

licenses in the Moulin Rouge operation. The commissioners, at a meeting held within the

period indicated, approved eight of the applicants with reference to whom investigations had

been completed, and undertook to make those so licensed responsible for the entire group of

27 applicants. This city board also authorized the use by Moulin Rouge of the funds of all

applicants in the group. This action by the city authorities was taken more than two months

prior to the time that the funds were delivered to Rubin, representing the Moulin Rouge

operation. Here again there appears to have been a substantial compliance with the escrow

instructions.

[Headnote 2]

The record shows that the Moulin Rouge hotel and casino operation had become

financially involved by August 1955, followed by bankruptcy proceedings. Respondent's

funds, together with other funds which had been placed into the venture, were gone beyond

hope of recoupment. The release of the funds to Rubin on July 25, under the particular

circumstances referred to, had no relationship to respondent's loss. Respondent's loss was

solely the result of her unfortunate investment.

Judgment reversed, with costs.


____________

��76 Nev. 107, 107 (1960) Nevada Industrial Commission v. O'Hare��

NEVADA INDUSTRIAL COMMISSION, Appellant, v.

PHIL W. O'HARE, Respondent.

No. 4239

March 10, 1960 349 P.2d 1058

Appeal from the Second Judicial District Court, Washoe County; John F. Sexton, Judge

Presiding, Department No. 2.

Workmen's compensation case. The trial court awarded compensation, and the Nevada

Industrial Commission appealed. The Supreme Court, Badt, J., held that evidence warranted

court's finding of causal connection between claimant's employment and Buerger's disease or

aggravation or acceleration of Buerger's disease resulting from claimant's employment, and

also held that in affirming the judgment it was not intended that the District Court's

determination of the claimant's right to payments under the Workmen's Compensation Act

should be res judicata as to any subsequent action that might be taken by the medical board or

by the commission in accordance with the act.

Affirmed as modified.

Paul D. Laxalt and William J. Crowell, of Carson City, for Appellant.

Lohse & Fry and Margaret Faires Baily, of Reno, for Respondent.

1. Workmen's Compensation. Evidence warranted finding of District Court trying workmen's compensation case without a jury, of

causal connection between claimant's employment and Buerger's disease or aggravation or acceleration of

Buerger's disease resulting from claimant's employment. NRS 616.010 et seq.

2. Workmen's Compensation. In workmen's compensation case, medical referee board's finding and decision were not binding where

board had made no physical examination of claimant as required by statute. NRS 616.190, subd. 2,

616.540, subd. 2.

3. Workmen's Compensation. In affirming District Court's judgment awarding workmen's compensation, it was not intended that the

District Court's determination of the claimant's right to payments under the �� 0 �� ,��


act be res judicata, either with respect to continued payments in the future or with respect to its

determination that claimant's disability and incapacity was permanent and total, as to any subsequent action

that might be taken by the medical board or by the commission in accordance with the statutes. NRS

616.190, subd. 2, 616.535, subd. 1, 616.540, subd. 1.

OPINION


This is an appeal by Nevada Industrial Commission from a judgment of the court below

awarding to Phil W. O'Hare a judgment for accrued compensation and for continuing

compensation and for unpaid medical and hospital expenses, after the commission, pursuant

to recommendations of the medical board, had terminated O'Hare's compensation.

On December 4, 1955 plaintiff was employed as a tractor operator by Utah Construction

Company and while engaged in said employment at the Hawthorne Naval Ammunition Depot

at Hawthorne, Nevada, was injured after climbing off a caterpillar tractor and sustained a

sprained left leg. As a result of said accident he was hospitalized and for a period of time,

from December 12, 1955 to May 24, 1956, received weekly compensation from the

commission. Further benefits were refused and the commission disclaimed further liability.

Both the employer and the employee were subject to the provisions of the Nevada Industrial

Insurance Act. NRS Chap. 616. These facts are admitted by the pleadings. It is not contended

that the accident, for whose results he was compensated up to May 24, 1956, did not arise out

of and in the course of his employment.

As an affirmative defense, the commission asserted that prior to July 27, 1956 O'Hare's

claim before the commission had been referred to the medical board for determination, and

that such board had determined that any disability suffered by O'Hare after May 24, 1956 was

not the result of injury sustained on December 4, 1955, but was caused by a disease not

connected in any way with O'Hare's employment; that such findings and ��


determination of the medical board were final and binding upon the commission. A copy of

the findings and determination signed by two members of the three-man medical board was

attached to the answer as an exhibit. It is recited in full in the margin. 1

The case was tried to the district court without a jury. O'Hare and one of the doctors who

had attended him over a long period and who had prescribed a course of treatment, both in

and out of the hospital, testified in support of the plaintiff. One physician testified on behalf

of the commission. Neither of the two physicians who signed the findings and decision of the

medical board testified. No explanation appears why the third member of the medical board

did not sign that board's decision, or what his position was with reference thereto.

[Headnote 1]

It appeared from the evidence that O'Hare was suffering from thrombophlebitis caused by

the injury described. Thrombophlebitis was defined as the development of a blood clot within

a vein, which therefore obstructs the flow of blood through the vein. Though the commission

accepts the conclusion that O'Hare still suffers from a medical condition, it contends that the

testimony of the two expert witnesses who testified supported the conclusions of the medical

board that @06��,�� <�� *��0 �� ,��

____________________

1

“July 27, 1956.

“At a recent meeting of the Board, Mr. O'Hare appeared to present evidence in his rejection of claim for

continuation of care.

“The entire history, physical, treatment, hospitalization and total care of Mr. O'Hare was reviewed. Then Mr.

O'Hare was called in for discussion as to his complaints and his side of the story.

“In summarizing, we could state that Mr. O'Hare did have a primary phlebothrombosis which was accepted

by the commission in good faith and treated until we felt that this traumatic thrombosis was well taken care of.

“Unfortunately, in the investigation of his thrombosis and with the Doctors involved, Dr. Peterson, Dr.

Duxbury, it was felt that he had a background for these thromboses on the basis of early arterial and venous

disease, such as B[u]erger's disease, this could not be caused by his employment and it was felt, since the

Commission had taken care of him completely during the incident relative to his work; that they could not take

care of him for the B[u]erger's disease and for this to be accepted as an Industrial case in the future. If this

accident had been the cause for the B[u]erger's, then it would be their responsibility for continuing treatment.”


O'Hare had a background for the thrombosis on the basis of pre-existing arterial and venous

disease, such as Buerger's disease, known as thromboangiitis obliterans, which was not

aggravated or accelerated by the accident. It therefore asserts error in the lack of evidence

supporting a finding of any causal connection between O'Hare's employment and Buerger's

disease or the aggravation or acceleration of Buerger's disease resulting from his employment.

(1) We have read with care the testimony of the two expert witnesses and find the same

inconclusive, without convincing effect, attended by considerable confusion, and in some

respects contradictory. For an enlightening discussion of Buerger's disease, the aggravation

and acceleration thereof, the obscure nature of its cause, and its compensability under

Workmen's Compensation statutes, see Quaker Oates Co. v. Industrial Commission, 414 Ill.

326, 111 N.E.2d 351, and Paull v. Preston Theatres Corporation, 63 Idaho 594, 124 P.2d 562.

We are unable to say that the court's finding was not supported by substantial evidence, or

that the evidence compelled a finding that O'Hare's condition was the result of a preexisting

Buerger's disease. See Nevada Industrial Commission v. Frosig, 74 Nev. 209, 326 P.2d 736.

We conclude that the assignment of the insufficiency of the evidence is without merit.

[Headnote 2]

(2) What we conceive to be the commission's chief assignment of error is the failure of the

court to find, as a matter of law, that the finding and decision of the medical referee board

was final and obligatory upon the commission, in the absence of showing that the board's

finding was arbitrary, capricious, or in abuse of its discretion.

This court has heretofore defined the nature of its review of the findings and decisions of

administrative boards. Nevada Tax Commission v. Hicks, 73 Nev. 115, 310 P.2d 852. See

also State ex rel. Grimes v. Board of Com. of Las Vegas, 53 Nev. 364, 1 P.2d 570; Dunn v.

Nevada Tax Commission, 67 Nev. 173, 216 P.2d 985. We ��$�� 0 �� $��,��


have recognized the finality of administrative determinations of administrative commissions

in the exercise of the commission's judgment based upon its specialized experience and

knowledge. This evolved from the growing appreciation of the undesirability of trying de

novo in the courts appeals from the rulings and decisions of the commission. We recognized

the desirability of having the commission or administrative tribunal assume a real

responsibility for weighing and considering the facts in the fields where it had peculiar

competence. We repeatedly referred to such experience and skill acquired by the

administrative tribunals in their respective spheres. This we may again confirm with reference

to administrative determinations, at the same time recognizing that the final action and

judgment of the administrative tribunal made in the exercise of a quasi-judicial function is

subject to judicial review. Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158. Where the factual

determinations are made after such hearing and notice necessarily provided to satisfy the

requirements of due process, the absence of compliance with such provisions may

undoubtedly be the subject of judicial inquiry. Nevada Tax Commission v. Hicks, supra.

In the instant case the statutory pronouncement that the finding by the medical board or a

majority of the members thereof shall be final and binding on the commission (NRS

616.190(2)) is linked with a further statutory requirement. This is that the medical board's

findings, conclusions, and recommendations to the commission shall follow the board's “full,

complete and thorough examination [conceded by appellant to require a physical

examination] of the injured employee” after notice to the employee of the time and place set

for examination and investigation into the medical questions involved, as well as the

determination of the extent of disability. (NRS 616.540 (2)) The medical board made no

physical examination of O'Hare. It is impossible logically to divorce the binding effect of the

medical board's finding and decision from the statutory requirement for notice and for a full,

complete and thorough physical examination. The binding effect of the board's ��


finding and decision disappears from the picture in the absence of compliance with those

mandatory requirements which the legislature in its wisdom thought proper to impose.

The assignment of error in the court's failure to find that the medical board's findings and

recommendations were binding upon the commission, and thus binding upon the court, must,

under the circumstances, be held to be without merit.

(3) In further response to the contention of appellant that the decision of the medical board

was obligatory upon the commission, respondent urges that the report signed by the two

doctors is not a report by the medical board as such; that the provisions of NRS 616.540(3) 2

have not been complied with; that it cannot be determined from the report whether all of the

members of the board were in agreement; that if the three members were, as a matter of fact,

not in agreement, the requirement of the section that “the members of the medical board shall

submit separate and individual reports to the commission” was not complied with. By reason

of our holding above, it is not necessary to pass upon this contention, but we cannot say that it

is without merit. Members of the medical board are physicians, not lawyers, and may not in

fairness be forced to assume the task of legal analysis of applicable statutes and the possible

results of failure of strict compliance. However, the legislature has furnished the commission

with counsel, the utilization of whose advice on analysis of statutory requirements might save

expensive litigation to all parties concerned.

[Headnote 3]

(4) In affirming the judgment herein, it is not intended that the district court's

determination of the respondent's present right to payments under the act be res judicata

(either with respect to continued payments in the future, or with respect to its determination��0 �� ;�� ,�� 313�#"#:1;"��313�#!%:1;!��313�12%:�;�#�� =�� =� ��5��

____________________

2

NRS 616.540 “3. Should the medical board not be in agreement as to the findings, conclusions and

recommendations, the members of the medical board shall submit separate and individual reports to the

commission.”


that plaintiff's disability and incapacity is permanent and total) as to any subsequent action

that may be taken by the medical board or by the commission in accordance with the

provisions of NRS 616.535(1) 3 or NRS 616.540(1)

4 or NRS 616.190(2), 5 or other

applicable provisions of the Nevada Industrial Insurance Act. The judgment is modified

accordingly.

Subject to the last preceding paragraph, the judgment is affirmed with costs.


____________________

3

616.535 “1. Any employee entitled to receive compensation under this chapter is required, if requested by

the commission, to submit himself for medical examination at a time and from time to time at a place reasonably

convenient for the employee, and as may be provided by the rules of the commission.”

4

616.540 “1. If on a claim for compensation by an injured employee any medical question or the extent of

disability of an injured employee shall be in controversy, the commission shall refer the case to the medical

board.”

5

616.190 “2. The jurisdiction of the medical board shall be limited solely to the consideration

and determination of medical questions and the extent of disability of injured employees referred by the

commission. * * *”

____________

��76 Nev. 113, 113 (1960) Cranford v. State��

MELVIN L. CRANFORD, Appellant, v. THE

STATE OF NEVADA, Respondent.

No. 4218

March 15, 1960 349 P.2d 1051

Appeal from the Sixth Judicial District Court, Humboldt County; Merwyn H. Brown,

Judge.

Defendant was convicted of second degree murder and from the judgment of the lower

court the defendant appealed. The Supreme Court, McNamee, C. J., held, inter alia, that no

prejudicial error appeared in any of the errors assigned.

Affirmed.


Llewellyn A. Young, of Lovelock, and Clifton Young, of Reno, for Appellant.

Roger D. Foley, Attorney General, State of Nevada; James A. Callahan, District Attorney,

Humboldt County; and Richard G. Campbell, Associate District Attorney, Humboldt County,

for Respondent.

1. Criminal Law. In murder prosecution, wherein after jury was selected and counsel for accused given opportunity to

make an opening statement he attempted to augment his statement with a placard on blackboard which

purported to define the elements of certain types of homicide, trial court properly refused to permit such a

demonstration on ground that counsel was limited in such statement to a relation of facts he intended to

show by his evidence, and that use of placard was an attempt to present to jury the law involved in the case.

2. Criminal Law. In murder prosecution, wherein during direct examination of accused, objection was made by the state to

an interrogatory which resulted in the court's saying “There is no evidence in here up to this point of the

deceased being the aggressor. The objection is sustained”, the court's comment was not prejudicial in view

of state of record at that time when only evidence of incident resulting in victim's death was testimony of

accused that he had fired two shots as a warning to victim and that in approaching victim accused grabbed

him and turned him around showing that accused, and not the deceased, was the aggressor.

3. Homicide. In murder prosecution, accused was precluded from claiming error in refusing him permission to testify

as to his knowledge of reputation of deceased for violence, where question asked of accused by his counsel

was “Do you know anything of his reputation for peace and violence?”, and court indicated that if counsel

had asked accused if he knew what deceased's reputation in community for peace and quiet was and, if so,

whether it was good or bad court would allow such inquiry, and counsel failed to proceed further along

such line of questioning.

4. Homicide. In prosecution for murder which occurred on September 23, 1957, wherein after accused had testified

that he had had a meeting and conversation with the victim on July 15, 1957, his counsel offered evidence

to show that in such conversation accused had warned victim to stay away from accused's wife, such offer

of proof was properly rejected on ground that what happened in July was no defense to homicide on

September 23, and such ruling was not prejudicial to accused notwithstanding that evidence of prior

difficulties between accused and �� 0 ��


deceased under some circumstances might be admissible to show accused's malice.

5. Homicide. In prosecution for murder, testimony tending to show that deceased during a certain period had been

carrying on an affair with accused's wife at a time which was more than five and a half months before the

homicide and subsequent to time that wife had commenced an action for divorce against accused was

properly rejected since even if accused had acquired knowledge of such affair such acquisition would have

taken place long before date of homicide and remoteness in time would preclude reduction of crime from

murder to manslaughter. NRS 200.060.

6. Criminal Law. In murder prosecution wherein accused requested permission to re-enact in court what happened on porch

at time of assault which resulted in victim's death, wherein in denying request court said “He can describe it

as he wants to” and accused then described in detail his version of what happened, there was no abuse of

discretion.

7. Witnesses. In prosecution for murder which occurred on September 23, 1957, wherein accused's testimony on direct

examination was intended to show conduct which might warrant jury in finding him guilty only of

manslaughter because accused had been a hard-working, industrious family man dedicated to welfare of his

wife and children for period from June 1956 to date of homicide, the state on cross-examination was

properly permitted to question accused regarding his whereabouts during periods between December 27,

1956 and February 11, 1957, and from March 27, 1957 until 50 days thereafter wherein accused disclosed

that he had been in jail during both of such periods thus curtailing his ability to support his family during

such periods, since such questions were material both to the issues and to impeachment.

8. Criminal Law. In murder prosecution, wherein during cross-examination accused was asked if he knew whether his wife

had knowledge of certain events that had transpired and he answered “I don't know, you will have to ask

her about that”, whereupon counsel for the state informed accused that his wife could not testify unless he

consented and accused's counsel advised accused not to consent, in absence of any objection to procedure

in trial court accused could not claim error for the first time on appeal since in absence of any objection,

court need not make any ruling which could be deemed excepted to. NRS 175.525.

9. Criminal Law; Witnesses. In murder prosecution wherein on direct examination a witness had testified that during night of shooting

he had seen accused's wife and deceased sitting at a bar when accused walked in, and when asked if either

had placed his arms around the other he replied “Mrs. Cranford did, yes, put her arm around” deceased and

on cross-examination he denied he had made a statement that “they both had their arms around each ��A�A�A�� '��

��


other * * * they were sitting there with their arms around each other when he came in”, it was for trial court

to determine whether a proper foundation had been laid for introduction of evidence of inconsistent

statement, and determination of such matter would not be disturbed on appeal, since if it was relevant to

issues whether one or both had arms around each other then in order to prove an inconsistent statement

with respect thereto, the laying of a proper foundation would be required before inconsistent statement

could be shown through testimony of a third party.

10. Criminal Law. Refusal to give offered instruction was not error where instructions given properly covered subject matter

of offered instruction.

11. Criminal Law; Homicide. In murder prosecution, offered instructions pertaining to self-defense and defense of habitation were

properly refused where subject of self-defense was fully covered by instructions as given, and there was

nothing in evidence from which a jury could infer that accused in his assault upon deceased was defending

accused's or any one else's habitation.

OPINION


Appellant was found guilty by jury verdict of second degree murder. Appeal is taken from

the judgment based on such verdict.

Appellant and his wife became estranged, and in February 1957 she commenced action

against him for divorce. At that time there were two children, the issue of the marriage, and in

addition a 13-year-old daughter of the wife by a former marriage. A fourth child was born in

July 1957.

The evidence justifies the conclusion that the appellant and his wife were living separate

and apart from February 1957 to the 23rd day of September 1957, when the assault took place

resulting in the death of one Schutt. There was some evidence that a reconciliation had been

attempted and that appellant had been in the home which his wife had rented and where she

was living with the children.

On September 22, 1957, appellant who had been working in Beowawe came to

Winnemucca with the stated ��


purpose of seeing his wife and children. He went to said house and found that the children

were alone and the oldest child, pursuant to directions from her mother, would not permit him

to enter. Thereafter, he planned to rent a hotel room for the night and in preparing to do so, he

came across his wife and Schutt sitting in a bar together. He approached them and threatened

to harm Schutt if the association between Schutt and appellant's wife did not stop. Soon

thereafter and about 3:00 A. M., September 23, Schutt and Mrs. Cranford left the bar, entered

a taxi and went to her home. Appellant followed in his own automobile. Upon arriving at the

home, Mrs. Cranford went to the door and ascertaining that the children were all right, she

returned to the taxi to get Schutt, and then the two of them proceeded to the front door of the

house. About this time appellant, who had driven up behind the taxi, got out and fired two

shots, which he said were intended as a warning to deceased, and then went up to the front

porch of the house where his wife was in the process of entering the front door. He grabbed

Schutt from behind, turned him around, and placed himself between the door and Schutt.

There is evidence to the effect that a third shot was fired during the interval between the

firing of the first two shots and the time he grabbed Schutt. He then pistol-whipped Schutt

three times on the head and when Schutt sank down on the porch he entered the living room

and commenced hitting his wife with the pistol. She ran out the door, her face bloody,

followed by the oldest child, and stated she was getting the police. Appellant then left and

surrendered himself at the police station. The victim managed to walk a few hundred feet to

the Sonoma Inn and was, from there, taken to the hospital. His death resulted a few hours

later that same day while he was undergoing skull surgery.

Appellant cites eleven errors:

[Headnote 1]

1. After the jury was selected and counsel for appellant given the opportunity to make an

opening statement to the jury, he attempted to augment his statement ��,��


with a placard on the blackboard which purported to define the elements of certain types of

homicide. The trial court refused to permit such a demonstration, holding that counsel was

limited in such statement to a relation of the facts he intended to show by his evidence; and

that the use of said placard was an attempt to present to the jury the law involved in the case.

The court was correct in such ruling. State v. Kendall, 200 Iowa 483, 203 N.W. 806. See 23

C.J.S., Criminal Law sec. 1086, p. 531, n. 61.

[Headnote 2]

2. During the direct examination of appellant, objection was made by respondent to an

interrogatory which resulted in the court saying “There is no evidence in here up to this point

of the deceased being the aggressor. The objection is sustained.” Appellant insists that such

statement constitutes error because it amounts to a comment by the court upon a question of

fact. At the time the court made such statement, the only evidence of the incident resulting in

Schutt's death was the testimony of the appellant that he had fired two shots as a warning to

Schutt and that in approaching Schutt, he grabbed him and turned him around. This testimony

given by the appellant himself shows that appellant, and not the deceased, was the aggressor.

The court's comment, in view of the state of the record at that time, was not prejudicial.

[Headnote 3]

3. Appellant contends that the court erred in refusing him permission to testify as to his

knowledge of the reputation of the deceased for violence. The exact question asked of

appellant by his counsel was “Do you know anything of his reputation for peace and

violence?” If appellant's counsel had asked appellant if he knew what deceased's reputation in

the community for peace and quiet was and, if so, whether it was good or bad, the trial court

indicated it would allow such inquiry. Appellant's counsel failed to proceed further along this

line of questioning and he is therefore precluded under these circumstances from claiming

error �� 0 ��


because of the court's ruling. See State v. Helm, 66 Nev. 286, 209 P.2d 187.

[Headnote 4]

4. After appellant had testified that he had had a meeting and conversation with Schutt on

July 15, 1957, his counsel offered evidence (in the absence of the jury) to show that in said

conversation appellant had warned Schutt to stay away from his wife. He contends that such

evidence would tend to show the state of appellant's mind on September 23, 1957, the date of

the shooting. In rejecting such offer of proof, the trial court said: “What happened in July, any

conversations, certainly isn't a defense to a murder or homicide on September 23rd, and

certainly it wouldn't be a provocation for a killing on September the 23rd.” This ruling was

correct. Evidence of prior difficulties between accused and the deceased under some

circumstances might be admissible to show accused's malice. People v. Fleming, 218 Cal.

300, 23 P.2d 28. Its exclusion obviously is not prejudicial to the accused.

[Headnote 5]

5. The trial court rejected offered testimony which tended to show that the deceased

during a certain period had been carrying on an affair with appellant's wife. The said period of

time was more than 5 1/2 months before the homicide and subsequent to the time she had

commenced an action for divorce against appellant. If such an affair had in fact been going

on, it does not appear that appellant was cognizant of it. Appellant contends that the court

erred in rejecting this testimony not that it would be a defense to the charge, but that it might

tend to reduce the degree of the offense. Even if appellant had acquired knowledge of any

such affair, such acquisition would have taken place long before September 23, 1957, and

remoteness in time would preclude reduction of the crime from murder to manslaughter. NRS

200.060; People v. Gingell, 211 Cal. 532, 296 P. 70.

[Headnote 6]

6. Error is claimed in the court's denial of appellant's request to permit appellant to

re-enact in court �� 0 ��


what happened on the porch at the time of the assault which resulted in Schutt's death.

It is conceded that a trial court has great discretion in matters of this kind. In denying

appellant's request the court said: “He can describe it as he wants to.” Appellant then

described in detail his version of what happened. We see no abuse of discretion. This claim of

error is without merit.

[Headnote 7]

7. After appellant had given testimony that he had been a hard working, industrious

family man dedicated to the welfare of his wife and children for the period from June 1956 to

the date of the homicide, the State on cross-examination was permitted to question him

regarding his whereabouts during the periods between December 27, 1956 and February 11,

1957, and from March 27, 1957 until fifty days thereafter. On such cross-examination

appellant disclosed he had been in jail during both of said periods, thus curtailing or

precluding his ability to support his family during these periods. The two periods were within

the entire period covered by direct examination. Appellant's testimony on direct examination

was intended to show conduct which might warrant the jury in finding him guilty only of

manslaughter. Therefore, questions on cross-examination were material both to the issues and

to impeachment. State v. Emmanuel, 42 Wash.2d 1, 253 P.2d 386. The case cited by

appellant, State v. Huff, 11 Nev. 17, is not in conflict with the ruling of the trial court on this

point. There was no error in permitting such cross-examination.

[Headnote 8]

8. During the cross-examination of appellant, he was asked if he knew whether his wife

had knowledge of certain events that had transpired. He answered: “I don't know, you will

have to ask her about that.” Whereupon counsel for respondent informed appellant that his

wife could not testify unless he consented. Appellant was then asked if he would give such

consent. Appellant asked his counsel for advice and his counsel stated ��

��


that he had advised appellant not to consent. It is unnecessary to determine whether this

procedure would have been prejudicial error if proper objection had been made at the trial,

because in the absence of any objection thereto in the trial court, appellant cannot claim error

for the first time on appeal. State v. Ceja, 53 Nev. 272, 298 P. 658, 2 P.2d 124. In the absence

of any objection, the court is not called upon to make any ruling which could be deemed

excepted to under NRS 175.525.

[Headnote 9]

9. Error is claimed in the court's refusal to permit impeachment of one Erquiaga, a

prosecution witness, by showing through a third party a prior inconsistent statement made by

said witness.

On direct examination, Erquiaga had testified that during the night of the shooting he had

seen appellant's wife and the deceased sitting at a bar when appellant walked in. When asked

if either one of them had placed his arms around the other, he replied: “Mrs. Cranford did,

yes, put her arm around Andy Schutt.” On cross-examination he denied he had made a

statement to one Joe Williams that “they both had their arms around each other * * * they

were sitting there with their arms around each other when he came in.”

If it was relevant to the issues whether one or both had arms around each other, then in

order to prove an inconsistent statement with respect thereto, the laying of a proper

foundation would be required (in order to inform the witness concerning that which he is

being asked about) before the inconsistent statement could be shown through the testimony of

a third party.

Here the foundation consisted of asking Erquiaga preliminary questions whether he ever

made the particular statement to Joe Williams on or about January 9 or 10, and in describing

who Williams was. The questions were not specific as to place nor with respect to any other

details as to the occasion. Although the witness remembered having a conversation with

Williams, he did not remember the particular conversation embodied in the question. It was

for the trial court to ��?��0 ��


determine whether Erquiaga's attention was adequately called to the alleged utterance, or in

other words, whether a proper foundation had been laid for the introduction of evidence of an

inconsistent statement. McCall v. Washington Co-operative Farmers Ass'n., 35 Wash.2d 337,

212 P.2d 813; Wigmore on Evidence, sec. 1029 (3d ed. 1940). Its determination of such

matter will not be disturbed on appeal.

[Headnote 10]

10. Appellant contends that the trial court erred in its refusal to give his offered

instruction concerning the degree of proof necessary to establish a complete defense. This

assignment is without merit. An examination of all of the instructions given reveals that the

subject matter of this offered instruction was fully and properly covered by the instructions of

the court as given.

[Headnote 11]

11. The court refused to give instructions offered by appellant pertaining to self defense

and defense of habitation. Its action in this regard was proper. The subject of self defense was

fully covered by the court's instructions as given. There was nothing in the evidence from

which a jury could infer that appellant in his assault upon the deceased was defending his or

anyone else's habitation.

No prejudicial error appearing, the judgment is affirmed.


____________

��76 Nev. 123, 123 (1960) Schmutzer v. Schmutzer��

CARYL A. SCHMUTZER, Appellant, v.

ROBERT C. SCHMUTZER, Respondent.

No. 4243

March 17, 1960 350 P.2d 142


Department No. 4.

Proceeding on motion to modify a judgment and decree of divorce. The trial court entered

an order of modification unsatisfactory to former wife and she appealed. The Supreme Court,

McNamee, C. J., held, inter alia, that where divorce judgment awarded to wife as her sole and

separate property dwelling house of the parties, with the express proviso that husband pay off

the balance owing on the dwelling house, and award of the house was not subject to any

conditions as to habitation or retention, judgment in regard to the house became final six

months after date of entry thereof, and the court was without jurisdiction to modify such

judgment so as to relieve husband from obligation of paying the balance owing on the

dwelling, even though wife and children of the parties had moved out of the house and wife

had sold it.

Affirmed with directions.

Jack J. Pursel, of Las Vegas, for Appellant.

Harry E. Claiborne, of Las Vegas, for Respondent.

1. Divorce. Where a divorce judgment awarded to wife as her sole and separate property dwelling house of the

parties, with the express proviso that husband pay off the balance owing on the dwelling house, and award

of the house was not subject to any conditions as to habitation or retention, judgment in regard to the house

became final six months after date of entry thereof, and the court was without jurisdiction to modify such

judgment so as to relieve husband from obligation of paying the balance owing on the dwelling, even

though wife and children of the parties had moved out of the house and wife had sold it. NRCP 60(b).

2. Divorce. In modifying decrees of divorce with respect to child support, the court exercised its discretionary powers

conferred upon it by statute. NRS 125.140.


3. Divorce. In proceeding on application by former husband for modification of, among other things, support

provisions of divorce decree, evidence, including testimony that husband's income had diminished from

$16,000 per annum net when the decree was entered to about $11,000 net at time of hearing on the motion,

was sufficient to show that entry of a modification order reducing support was not an abuse of discretion.

OPINION


This is an appeal from an order modifying a judgment and decree of divorce.

Appellant was the plaintiff and respondent was the defendant in the lower court. They

were divorced on August 1, 1955. In addition to dissolving the marriage, the decree awarded

custody of the two minor children to the plaintiff wife, required defendant to pay plaintiff

$300 per month for the support of the children, and made a division of the property of the

parties.

The dwelling house of the parties was awarded to the wife as her sole and separate

property with the express proviso that “defendant shall pay off the balance owing on the

aforesaid dwelling house by making timely payment of all amounts owing thereon as the

same become due, including interest and insurance.”

The court retained jurisdiction of the action only with respect to the custody and support of

the minor children.

We are now concerned with those provisions of the decree which pertain to child support

and to the said dwelling house.

On June 19, 1958 respondent served and filed his motion to modify the decree

“commensurate with the change of circumstances of the defendant.”

On July 27, 1959 the lower court made its order modifying the decree of divorce by

reducing child support payments to $85 per month per child, and by relieving respondent

from the obligation of paying any of the $4,800 balance which remained owing on the

dwelling. It appears from the record that the order regarding the $4,800 while favorable to

respondent was made over the �� 0 ��


objection of respondent's counsel. This becomes significant in the determination of costs.

It is to be noted that respondent's motion was based upon the change of circumstances of

the defendant. The lower court, apparently without objection of either party, received

evidence of the changed circumstances of both parties. Evidence was presented to the court

which showed that since the decree (1) appellant had remarried and had sold the dwelling

house; (2) respondent's earnings had decreased; (3) respondent was required to contribute to

the support of his aged mother; and (4) respondent was delinquent in the payments on the

balance due on the dwelling house.

[Headnote 1]

The judgment in all respects except as to custody and support of the minor children

became final upon the expiration of six months after August 1, 1955, the date the judgment

was entered. NRCP 60(b); Schneider v. District Court, 64 Nev. 26, 176 P.2d 797. See

Helvering v. Fuller, 310 U.S. 69, 60 Sup.Ct. 784, 84 L.Ed. 1082. The court therefore was

without jurisdiction to modify the judgment so as to relieve respondent from that obligation

imposed by the judgment of paying the $4,800 balance remaining owing on the dwelling.

This was conceded by both parties during the oral argument.

It is true that the learned judge below in his decision on modification stated that he was of

the opinion that the Hon. Ryland G. Taylor [the judge who presided over the divorce trial and

who signed the judgment which presently is the subject of modification] “had no other

thought than that the plaintiff and the minor children would live in this home, and that was

the purpose of the order, namely to continue a place of abode for the wife and children.”

Whether such was in fact Judge Taylor's motive in awarding the dwelling to the wife is mere

conjecture, and could not convert the nature of this award to child support, which would be

subject to modification, in view of Judge Taylor's express findings that the wife was to have

said property as her sole and separate property without any conditions requiring habitation

therein or restricting the sale thereof.


Under NRS 125.140, trial courts are empowered to modify decrees of divorce relative to

support of minor children as may seem necessary and proper at any time during their

minority, whether or not jurisdiction for such purpose was expressly retained in the decree.

[Headnote 2]

In modifying decrees of divorce with respect to child support, a court exercises the

discretionary powers conferred upon it by said statute. Goodman v. Goodman, 68 Nev. 484,

236 P.2d 305. Our concern on appeal with this part of the modification order is only whether

the action of the court below constituted an abuse of discretion.

[Headnote 3]

We do not have before us a complete record of the proceedings resulting in the

modification of the decree, and it appears that no stenographic report was made of the

testimony or other evidence considered by the lower court upon the hearing of the motion to

modify. The written decision of the court contains the following:

“As to the minor children, the Court must make the observation that the children have

been cared for in at least semi-luxury, that not only have all of their needs been supplied, but

in addition thereto the wife has been able to deposit monies in the savings accounts for the

children's benefit, to one, the sum of $1100.00 and to the other, the sum of $900.00. This is

indeed commendable. But in this action the husband has shown substantial evidence that his

income has diminished from $16,000.00 per annum net when the decree was entered to about

$11,000.00 net at the time of the hearing. He has satisfactorily shown to the court the burden

that are imposed upon his earnings and that his payments to the plaintiff in this matter amount

to $200.00 a month [as part of the property awarded to the wife] which are not subject to

change. The burdens are more than the Court feels the defendant should justifiably bear.”

From the state of the record it does not appear that the court below abused its discretion in

modifying the provisions for child support.

The lower court is ordered to strike that part of the �� 1""!C��8�,��>� �E�� .!� %%��


order modifying the decree of divorce which relieves respondent of paying any sum in

reference to the dwelling located at 1334 Maryland Parkway, Las Vegas, Nevada, and

including the sum of $4,800 which was due on said property at the time the same was sold by

appellant. The said order appealed from in all other respects is affirmed. No costs are

allowed.


____________

��76 Nev. 127, 127 (1960) Baker v. Baker��

VITA MARIE BAKER, Appellant, v.

CHARLES BAKER, Respondent.

No. 4242

March 21, 1960 350 P.2d 140

Appeal from judgment of the Eighth Judicial District Court, Clark County; George E.


Husband's action for divorce on ground that parties had lived separate and apart without

cohabitation for more than three consecutive years. The trial court entered judgment granting

husband absolute divorce, awarding wife custody of three minor children and support

payments and wife appealed. The Supreme Court, Pike, J., held that although there was

substantial conflict in evidence, findings of trial court as to good faith of husband's residence

in Nevada for the requisite period of time were not clearly wrong, and court did not abuse

discretion in granting divorce to husband despite wife's testimony that during period of

separation she was agreeable to a reconciliation.

Judgment affirmed.

Foley Bros., of Las Vegas, for Appellant.

G. William Coulthard and John Peter Lee, of Las Vegas, for Respondent.

��76 Nev. 127, 128 (1960) Baker v. Baker��

1. Divorce. In husband's action for divorce on ground that parties had lived separate and apart without cohabitation

for more than three consecutive years, despite conflicting evidence, findings of court as to the good faith of

husband's residence in State for required period of time before filing complaint for divorce, were not

clearly wrong.

2. Divorce. In husband's action for divorce on ground that the parties had lived separate and apart, without

cohabitation, for more than three consecutive years, despite wife's testimony that during period parties had

lived separate and apart she was agreeable to a reconciliation, court did not abuse its discretion in granting

divorce to husband who claimed that no reconciliation had been possible so far as he was concerned.

3. Divorce. In husband's action for divorce on ground that parties had lived separate and apart for more than three

consecutive years, where husband testified that there was no possibility of reconciliation during period

parties had lived apart, a finding of no possibility of reconciliation in support of judgment of divorce to

husband would be presumed.

4. Divorce. In husband's action for divorce on ground that the parties had lived separate and apart for more than three

consecutive years, where evidence disclosed that husband had during period parties lived apart contributed

to support of wife and three minor children and owned an interest in a partnership as well as an interest in

the home of the parties which they owned as joint tenants, and by decree husband was required to pay for

support of children and to convey to wife his interest in dwelling house together with furnishings, failure to

award alimony to wife as well as to setting aside a portion of husband's interest in partnership, constituting

his separate property, was not an abuse of discretion.

OPINION


The wife appeals from a judgment of divorce in favor of the husband. The husband,

respondent herein, filed his complaint for divorce alleging as a cause for divorce that the

parties had lived separate and apart, without cohabitation, for more than three consecutive

years. The wife filed her answer and also, by counterclaim, sought a judgment of separate

maintenance.

In its decree (filed May 28, 1959) the trial court, �� ."#%��

��76 Nev. 127, 129 (1960) Baker v. Baker��

besides granting to the husband an absolute divorce on the ground indicated, awarded to the

wife custody of the three minor children of the marriage, ordered the husband to pay to the

wife $350 per month for the support of the children, and ordered that the husband convey to

the wife all of his interest in the jointly owned dwelling house formerly occupied by the

parties.

Appellant asserts error on the part of the trial court in its application of the law of domicil

to the evidence in the case. In part, appellant relies upon remarks of the court, expressing

doubt concerning the husband's residence, made at the time of denying certain motions made

on behalf of the wife at the conclusion of the husband's opening case. However, such

observations made by the trial court, when read in connection with the other remarks of the

court made at the same stage of the trial and more particularly with respect to the court's

express findings relative to respondent's residence, do not indicate any deviation by the court

from the well established principles of the law pertaining to domicil as applied to jurisdiction

for the purposes of divorce. Specifically, the court referred to the decision of this court in

Lamb v. Lamb, 57 Nev. 421, 65 P.2d 872, 875, as presenting a somewhat parallel situation to

the instant case with respect to the residence of the husband, and denied plaintiff's motion to

dismiss which was based upon the husband's contended lack of residence in Nevada. On

residence, the decision in the Lamb case, supra, reads in part as follows: “(1) The law of

Nevada relating to residence necessary to confer jurisdiction in divorce cases is well

established. In this case it was necessary for plaintiff to satisfy the jury that his physical

presence in this state for the whole statutory period (NCL § 9460) preceding and including

the date of the commencement of his action was accompanied by the intent to make Nevada

his home, and to remain there permanently, or at least for an indefinite time. . . .” After a

review of the evidence in said case this court recognized that, although there was a substantial

conflict in the evidence so as to create a doubt in the mind of the reviewing court as to the

good faith of his Nevada � ��

��76 Nev. 127, 130 (1960) Baker v. Baker��

residence, it could not be said that the verdict and findings of the jury were clearly wrong, and

the judgment appealed from was affirmed.

[Headnote 1]

In the instant appeal the evidence is uncontradicted concerning the physical presence of

Baker in this state for the required period of time before filing his complaint for divorce, but

the bona fides of his residence is challenged. There is conflicting evidence on the issue of

Baker's intention to establish his domicil in Nevada and a continuation of that intention

throughout the period of time preceding the filing of his complaint for divorce. We are unable

to conclude that the finding of the trial court sustaining such contended residence was clearly

wrong. There was substantial evidence to support it, and it must stand.

[Headnote 2]

Appellant next assigns as error the granting of a divorce to the husband and contends that

the court abused its discretion in so doing. The evidence with reference to the parties' having

lived separate and apart for more than three consecutive years, and since April 15, 1955, was

uncontradicted. The wife testified that she was agreeable to a reconciliation, but the husband

testified that no reconciliation was possible and that none had been possible during the period

of living apart, so far as he was concerned. Appellant contends that the granting of a divorce,

with the wife being willing to have a reconciliation, and with a lack of evidence of fault on

her part, was an abuse of discretion by the trial court. However, prior decisions of this court

relating to the exercise of the court's discretion in cases involving this cause for divorce,

when applied to the evidence in this case, fail to support this position. George v. George, 56

Nev. 12, 41 P.2d 1059, 1060, 97 A.L.R. 983 (decided by this court when the required period

of living apart was five years rather than three) stated, “ * * * [I]t is clear that the discretion

which the trial court is called upon to exercise depends not so much upon the comparative

rectitude of conduct of the spouses as upon the �� '

��76 Nev. 127, 131 (1960) Baker v. Baker��

probability of their being able to live together in such a manner as to be for their best interest

and the best interest of society.” Sutherland v. Sutherland, 75 Nev. 304, 340 P.2d 581;

Fausone v. Fausone, 75 Nev. 222, 338 P.2d 68; Kohlsaat v. Kohlsaat, 62 Nev. 485, 155 P.2d

474; Lagemann v. Lagemann, 65 Nev. 373, 196 P.2d 1018; Jeffers v. Jeffers, 55 Nev. 201, 29

P.2d 351.

[Headnote 3]

Certainly, with the husband's testimony that there was no possibility of a reconciliation,

the court cannot be viewed as having abused its discretion in meeting the above-quoted

requirements for its exercise. Appellant urges that the court made no finding in this regard.

However, with the evidence as stated, such a finding, supporting the judgment, will be

presumed. Dillon v. Dillon, 68 Nev. 151, 227 P.2d 783; Dutertre v. Shallenberger, 21 Nev.

507, 34 P. 449.

The appellant wife also assigns error on the part of the trial court by reason of its refusal

(1) to order the husband to pay her alimony, and (2) to set aside a portion of the husband's

separate property for her support and that of the children. These two assignments may be

considered together.

[Headnote 4]

The parties were married in 1946 and the three minor children of the marriage, as well as

the wife, had been supported by the husband prior to the separation. He continued to

contribute to the support of the wife and the three minor children who lived with her during

the period that the parties were separated preceding the divorce. During such four-year period

of living apart the husband paid to the wife monthly sums aggregating slightly more than the

$350 monthly which the trial judge ordered him to pay for the support of the children. In

addition, the husband paid the taxes on the dwelling house occupied by the wife and the

children, and also paid for certain utilities and miscellaneous expenses. At the trial he

testified in effect that he would be agreeable to continue with such payments in like amount

should the marriage be terminated by divorce. He also testified �� >� �E�� ."%�%%%�

��76 Nev. 127, 132 (1960) Baker v. Baker��

concerning his earnings from employment in Las Vegas and his property interests consisting

of an interest in the dwelling house above referred to and of a partnership interest having a

value of about $30,000. With this evidence before it, the trial court made the stated provision

for the support of the children by the husband, but made no provision as such for the support

of the wife. The court did enter its judgment that the husband convey to the wife all of his

interest in the dwelling house owned jointly by the parties, together with its furnishings. The

estimated value of the husband's interest in this property does not appear. Both parties had

participated in its acquisition during coverture, with the wife having used the proceeds of a

veteran's loan for which she was eligible by reason of her military service. The evidence

indicates that it was subject to an encumbrance of about $8,000 at the time the divorce was

granted. An award of alimony to the wife, as well as the setting aside of any portion of the

husband's interest in the partnership, constituting his separate property, were both matters

within the discretion of the trial court, and under the evidence we are unable to say that its

action with reference to either was so clearly erroneous as to constitute an abuse of discretion.

Judgment affirmed. No costs are allowed.


____________

��76 Nev. 133, 133 (1960) Gunderson v. Barringer��

E. M. GUNDERSON, Substituted for RUSSELL TAYLOR, as Guardian of the Person and

Estate of CARLITA RAY, an Infant, Appellant, v. ROBERT E. BARRINGER, L. O.

HAWKINS and HOWARD W. CANNON; IDA ANGELOT RAY, CARL REED, and

RALPH STEINER, as Trustees of the Estate of CARL RAY, Deceased, Respondents.

No. 4200

March 23, 1960 350 P.2d 397

Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,

Department No. 2.

Guardian of infant daughter of deceased testator brought action for declaratory judgment

against testamentary trustees and testator's pretermitted heir and his successors in interest.

The lower court rendered an order dismissing the action as to the pretermitted heir and his

successors in interest, and the guardian appealed. The Supreme Court, McNamee, C. J., held

that order should be reversed and District Court should permit guardian to amend complaint

so that it clearly alleged that declaration of rights sought pertained to testator's realty in its

entirety and not just to that part of the property held by testamentary trustees after one-third

interest in realty had been conveyed to pretermitted heir.

Reversed with directions.

(See also 75 Nev. 409, 344 P.2d 676.)

E. M. Gunderson, as guardian of the person and estate of Carlita Ray, an infant, in propria

persona.

Hawkins and Cannon, of Las Vegas, for Respondents.

1. Trust. If court, in determining that individual, as a pretermitted heir, was entitled to one third of estate of

deceased testator, acted under mistake of fact, then, in absence of laches, waiver, or other legal defense,

any part of the estate improperly received by him, could be impressed with a trust for the benefit of the

trustees under the will.


2. Declaratory Judgment. Order of District Court dismissing action for declaratory judgment by guardian of infant daughter of

deceased testator as to testator's pretermitted heir, who had been adjudged entitled to one third of estate of

testator, and successors in interest of pretermitted heir would be reversed, and District Court would be

directed to permit guardian to amend complaint so that it clearly alleged that declaration of rights sought

pertained to testator's realty in its entirety and not to just that part held by testamentary trustees after one

third had been conveyed to pretermitted heir, though prayer and certain allegations of complaint could be

construed to mean that guardian sought determination only with respect to trust estate and not with respect

to entire estate left by testator, where evident intention of guardian was for determination of rights of

parties in and to entire property which originally comprised testator's estate and not just to two-thirds

interest which became vested in trustees on final distribution.

OPINION


Appellant filed in the court below a complaint for declaratory judgment. Appeal is from

the order dismissing the action as to defendants Barringer, Hawkins, and Cannon.

Matters pertaining to the estate of Carl Ray, deceased, have had the consideration of this

court over the past nine years. The parties to the present action all are interested in said estate

or in property that was a part of said estate at the time of decedent's death. As a result of our

several decisions certain rights of the parties in and to certain of the assets have been

adjudicated. Appellant has undertaken to allege in said complaint our several decisions, and

seeks a declaration of the present rights of the various parties to this action as a result of these

decisions.

It becomes necessary to give a historical outline of the prior proceedings pertaining to this

estate.

The will of Carl Ray, deceased, was admitted to probate in Department 1 of the Eighth

Judicial District Court in and for the County of Clark. Thereafter respondent Barringer filed a

petition in that court seeking a share of the estate as a pretermitted heir. The �� *��


petition was granted and the court decreed that Barringer was entitled to one third of the

estate, after certain deductions. This decision was sustained on appeal. In re Carl Ray, 69

Nev. 204, 245 P.2d 990.

Thereafter Ida Angelot Ray, the widow of Carl Ray, commenced an independent action in

Department 2 of said court for the specific performance of an antenuptial agreement under

which the decedent, Carl Ray, agreed to devise certain property to her in trust. This contract

provided that the decedent would make a will wherein all of his property would be

bequeathed to a trustee with a provision that his said widow would receive one half the net

proceeds of the trust estate. The agreement further provided that the provisions of the

agreement would be in lieu of any other claim against decedent's estate which she might have

by virtue of their marriage. The decedent executed his will substantially in compliance with

said antenuptial agreement, and in addition provided that the remaining one half of the net

proceeds of the trust was to go to Carlita Nancy Ray, the minor child of decedent and his

wife, Ida Angelot Ray. The trial court upheld the validity of this contract and ordered its

enforcement. Its judgment was affirmed on appeal. Barringer v. Ray, 72 Nev. 172, 298 P.2d

933.

In the due course of the administration of the estate, and pursuant to the decision in the

case of In re Carl Ray, supra, a one-third interest in certain land in Las Vegas, Nevada

(comprising the chief asset of said estate in Nevada) was conveyed by the estate to Barringer.

Thereafter upon final distribution of the estate, the remaining two-thirds interest in said land

passed in trust to the trustees named in the will.

As must be apparent from the foregoing, it was the intention of the testator that all of his

estate (except for certain minor bequests) was to be distributed to the trustee or trustees

named in his will in trust for his widow and minor child who were to receive the net proceeds

therefrom in equal portions, all consistent with the covenants contained in the antenuptial

agreement. The existence of Barringer and the fact that he would be awarded one third of the

estate before the commencement of the trust was not contemplated by the testator �� *��


at the time he executed his will, or brought to the attention of the court when it ordered

distribution to Barringer as a pretermitted heir to one third of the estate. In other words, after

the determination of the validity of the antenuptial agreement and the legal effect thereof, was

Barringer then entitled to retain one third of the entire estate, or was he entitled as a

pretermitted heir to share only in that portion of the estate which the decedent could without

restriction dispose of by will?

[Headnote 1]

If the court in determining that Barringer as a pretermitted heir was entitled to one third of

the estate acted under mistake of fact, then in the absence of laches, waiver, or other legal

defense any part of the estate improperly received by him, could be impressed with a trust for

the benefit of the trustees under the will. Villalon v. Bowen, 70 Nev. 456, 273 P.2d 409. If

such could be accomplished, the relative interests of the minor child and the widow, or at

least of the minor child, would be materially affected.

This court in referring to the interests of said minor child stated in the case of Ray v.

Barringer, 73 Nev. 212, 314 P.2d 378: “Because of unusual developments in the probate

proceedings, the interests of the minor child quite clearly demand attention and a

determination of her rights under present circumstances should be had.”

Apparently from this suggestion, the trustees under the will commenced an action for a

declaratory judgment to determine “the rights and interests of the various defendants in the

trust estate.” One of the defendants therein was Barringer, and upon his disclaimer of any

interest in the trust estate, the trial court dismissed the action against him. This judgment was

affirmed on appeal. Ray v. Barringer, 75 Nev. 168, 336 P.2d 772.

Neither Barringer nor his successors in interest, Hawkins and Cannon, have ever claimed

any interest in the trust estate, and they of course should not be named parties in an action to

declare the extent of the ��


interest of those parties claiming any part of the trust estate.

They do, however, claim a one-third interest in the Professional Building, the name by

which said real property is known and which became the major part of the estate of Carl Ray

upon his death. If their interest in said building or any part thereof was improperly acquired

through a mistake of fact, an action to determine such matter would be proper. Villalon v.

Bowen, supra.

It is contended by respondents Barringer, Hawkins, and Cannon that the present complaint

seeks to determine the rights of said respondents only with respect to the trust estate and not

with respect to the entire estate left by decedent Carl Ray. While the prayer of the present

complaint and certain of the allegations therein could be so construed, the evident intention of

the appellant is for a determination of the rights of the parties in and to the entire property

which originally comprised the estate and not just to the two-thirds interest which became

vested in the trustees upon final distribution.

[Headnote 2]

The order dismissing the action as to defendants Barringer, Hawkins, and Cannon is

reversed, and the trial court is directed to permit the appellant to amend the complaint so that

it is clearly alleged that the declaration of rights sought pertains to the real property in its

entirety and not to just that part thereof now held by the said testamentary trustees.


____________

��76 Nev. 138, 138 (1960) Ex Parte Boley��

In the Matter of the Application of VERN BOLEY and

O. D. CHARLESWORTH For a Writ of Habeas Corpus.

No. 4297

March 24, 1960 350 P.2d 638

Original proceedings in habeas corpus. The Supreme Court, Pike, J., held, inter alia, that

an information charging that defendants used a cheating or thieving device to facilitate

removing contents of slot machine which was the property of another sufficiently charged

violation of criminal statute prohibiting use of cheating device to facilitate removing contents

from slot machine, which offense is a gross misdemeanor and within jurisdiction of district

court and, since defendants were not prejudiced by the form of such information, application

for writ of habeas corpus would be denied.

Writ denied.

Harry E. Claiborne, of Las Vegas, for Petitioners.

Roger Foley, Attorney General, and Roland W. Belanger, District Attorney, Pershing

County, for State of Nevada.

1. Habeas Corpus. The attack in habeas corpus proceeding on sufficiency of information constituted a collateral attack upon

judgment upon which commitments were issued, and to be successfully maintained it must be shown that

such judgment was void for reason that court which entered it was without jurisdiction to do so. NRS

173.090, 173.100, subd. 1, 173.210, 173.300, 173.310, subd. 6, 173.320.

2. Habeas Corpus. The writ of habeas corpus is not supervisory in character and does not perform function of an appeal and

cannot be used as a substitute for a demurrer or motion to quash the information.

3. Habeas Corpus. The test of sufficiency of information, challenged on petition for habeas corpus which constituted a

collateral attack upon judgment upon which commitments were issued, differs from that which would apply

on demurrer, motion to quash, motion in arrest of judgment or on appeal. NRS 173.090, 173.100,

subd. 1, 173.210, 173.300, 173.310, subd. 6, 173.320.

4. Habeas Corpus. In habeas corpus proceeding, the form of information was ��


not open to review unless petitioner suffered prejudice from it. NRS 173.090, 173.100, subd. 1,

173.210, 173.300, 173.310, subd. 6, 173.320.

5. Habeas Corpus. An information charging that defendants used a cheating or thieving device to facilitate removing

contents of slot machine which was the property of another sufficiently charged violation of criminal

statute prohibiting use of cheating device to facilitate removing contents from slot machine, which offense

is a gross misdemeanor and within jurisdiction of district court and, since defendants were not prejudiced

by the form of such information, application for writ of habeas corpus would be denied. NRS 3.190,

subd. 1(g), 4.370, subd. 3, 173.090, 173.100, subd. 1, 173.210, 173.300, 173.310, subd. 6, 173.320,

465.080.

OPINION


This is an original petition for a writ of habeas corpus. Petitioners, each serving a sentence

in the Pershing County jail, after trial by the court, conviction and sentence, for a gross

misdemeanor, and after dismissal of their appeal to this court, seek release from custody, each

contending that the court issuing the commitment was without jurisdiction, as the information

upon which each was adjudged guilty did not charge a public offense.

The information charged the petitioners herein, Boley and Charlesworth, with a violation

of NRS 465.080, “* * * in that they did then and there use a cheating or thieving device to

facilitate removing the contents of a 25(¢) cent slot machine, which said slot machine was the

property of * * *.” Pertinent provisions of the criminal statute alleged to have been violated

read as follows: “1. It shall be unlawful for any person * * * to use * * * any cheating or

thieving device to facilitate removing from any slot machine, * * * any part of the contents

thereof.”

Each of the petitioners entered a plea of not guilty, but the contention that the information

did not allege facts sufficient to charge a violation of the statute is raised for the first time by

this petition.

Under statutes applicable to informations, the offense charged may be stated in plain,

concise language and �� ,�� :��1/"�%2%��1/"��1%��1/"�"1%��


in such manner as to enable a person of common understanding to know what is intended

(NRS 173.090, 173.210, and 173.310, subd. 6); and no information shall be deemed

insufficient by reason of any defect in matters of form which shall not tend to the prejudice of

the defendant (NRS 173.100, subd. 1). By statute it is also provided that the information need

not strictly pursue the words used in a statute to define a public offense, but other words

conveying the same meaning may be used. (NRS 173.300) Any defect or imperfection in the

information as to form shall not affect the judgment thereon, unless it tends to prejudice a

substantial right of the defendant. (NRS 173.320)

[Headnotes 1-4]

The attack by petitioners in this habeas corpus proceeding upon the sufficiency of the

information constitutes a collateral attack upon the judgment upon which the commitments

were issued. To be successfully maintained it must be shown that such judgment was void for

the reason that the court which entered it was without jurisdiction to do so. The writ is not

supervisory in character and does not perform the function of an appeal and cannot be used as

a substitute for a demurrer or motion to quash the information. Ex Parte Breckenridge, 34

Nev. 275, 277, 118 P. 687; Roehm v. Woodruff, 64 N.M. 278, 327 P.2d 339, 340. Without in

any way implying that the information here under consideration was insufficient in its

allegations, we must recognize that, considering the nature of the collateral attack here being

made, the test of its sufficiency differs from that which would apply on demurrer, motion to

quash, motion in arrest of judgment or on appeal. (See Ex Parte Breckenridge, supra, and

Roehm v. Woodruff, supra, citing California cases at p. 341, column 1.) Also, in this

proceeding, the form of an information is not open to review unless the petitioner has

suffered prejudice from it. NRS 173.320. Roehm v. Woodruff, supra, p. 341.

[Headnote 5]

This court, in Ex Parte Moriarity, 44 Nev. 164, 172, 191 P. 360, a habeas corpus

proceeding where it was �� )��)��?��8��1#%�)��


contended that the indictment did not charge a crime because it consisted of generalities and

conclusions, approved the rule as stated by the Supreme Court of California in Ex Parte Ruef,

150 Cal. 665, 89 P. 605. There it was claimed that the indictments failed to state a public

offense. It was pointed out in the Ruef case that, on habeas corpus, the inquiry into the

sufficiency of an indictment is limited, and that “where the indictment purports or attempts to

state an offense of a kind of which the court assuming to proceed has jurisdiction, the

question whether the facts charged are sufficient to constitute an offense of that kind, will not

be examined into on habeas corpus.” In the present case the indictment unquestionably sought

to charge a violation of a criminal statute, namely use of a cheating device, to facilitate

removing part of the contents from a slot machine, which offense was a gross misdemeanor

and within the jurisdiction of the district court. Ex Parte Breckenridge, supra; NRS 3.190,

subd. 1(g), and NRS 4.370, subd. 3.

Here we do not find any showing of prejudice of a substantial right of either petitioner

occasioned by reason of the form of the information, and under the authorities cited a further

consideration of the asserted insufficiency of the information is not justified.

It is ordered that the writ be denied and these proceedings dismissed.


____________

��76 Nev. 142, 142 (1960) State v. Feinzilber��

THE STATE OF NEVADA, Appellant, v.

HENRI FEINZILBER, Respondent.

No. 4186

March 29, 1960 350 P.2d 399

Appeal from judgment of the Eighth Judicial District Court, Clark County; John F. Sexton,


Prosecution for assault with intent to kill. The trial court rendered an order granting

defendant's motion to dismiss the information on the ground that defendant had been once in

jeopardy. The State appealed. The Supreme Court, Pike, J., held that trial and acquittal of

defendant on charge of robbery by force and violence did not place defendant in jeopardy

with respect to subsequent charge of assault with intent to kill, though evidence introduced in

robbery prosecution would be required in assault prosecution, where portion of evidence prior

to assault with empty pistol might have sufficed to prove charge of robbery and subsequent

assault with empty pistol might be sufficient to sustain charge of assault with intent to kill.

Judgment reversed.

Roger Foley, Attorney General; George M. Dickerson, for office of District Attorney,

Clark County, Las Vegas, for Appellant.

John F. Mendoza, of Las Vegas, for Respondent.

1. Criminal Law. Trial and acquittal of defendant on charge of robbery by force and violence did not place defendant in

jeopardy with respect to subsequent charge of assault with intent to kill, though evidence introduced in

robbery prosecution would be required in assault prosecution, where portion of evidence prior to assault

with empty pistol might have sufficed to prove charge of robbery and subsequent assault with empty pistol

might be sufficient to sustain charge of assault with intent to kill. Const. art. 1, § 8; NRS 169.170,

173.260, 174.390, 175.455, 200.380, 200.400.

2. Judgment. A verdict of not guilty to charge of robbery by force and violence, under the record, could be taken only

as a finding of not guilty on particular charge before jury and could not be �� ,��


construed as determination of validity of defense of alibi giving rise to defense of res judicata in

subsequent prosecution, for assault with intent to kill, in which same evidence would be required to be

introduced as was used in robbery prosecution.

OPINION


[Headnote 1]

Appeal by the state from an order of the trial court granting defendant's motion to dismiss

an information charging defendant with assault with intent to kill, on the ground that

defendant had been once in jeopardy. Defendant had previously been acquitted, after a jury

trial, on the charge of robbery of one Dorothy Cimino.

Counsel for the state and respondent, in the trial court stipulated that Feinzilber had been

charged with robbery by force and violence, and found not guilty, and that the same evidence

introduced in that case would be required at the trial of the defendant on the subsequent

charge of assault with intent to kill charged in the second information.

The prosecution, on the robbery charge, alleged a violation of NRS 200.380, and on the

subsequent assault with intent to kill a violation of NRS 200.400.

The charging portion of the information in the robbery case alleged that the defendant on

December 13, 1957, “* * * did then and there willfully, unlawfully, and feloniously take

personal property, to wit: A black purse containing approximately $100 lawful money of the

United States, and personal effects, from the person of Dorothy Cimino by use of force and

violence and against the will of the said Dorothy Cimino * * *.” The corresponding portion of

the information in the instant case charges that on the same date the defendant “* * * did then

and there willfully, unlawfully, and feloniously assault Dorothy Cimino with a deadly

weapon, to wit, a .38 Calibre Smith and Wesson revolver, with the intent to kill the said

Dorothy Cimino.”

The evidence at the robbery trial shows that at about 8 o'clock in the evening, December

13, 1957, Dorothy )�� ,��>� �E��


Cimino was walking along the edge of the highway near Las Vegas, Nevada toward a bus

stop. The highway was well traveled and lighted. She was accosted by a man who was the

sole occupant of the automobile he was driving along the highway in the same direction that

she was walking. He asked her if she wanted a ride. She accepted and entered the front seat of

the car. In the ensuing conversation she told the driver that she wished to go to Las Vegas, a

few miles distant in the direction they were traveling. However, after indicating to her that he

was interested in feminine companionship, over her protests he made a U-turn and drove off

in the opposite direction, away from Las Vegas. He ignored her protests and requests that he

let her out of the car. She refused his suggestion that they stop at a hotel on the highway

farther from Las Vegas. Over her protests, he then drove to an unlighted area off the highway.

He asked the victim to sit closer to him and, upon her refusal, he stated that he had a gun, and

proceeded to shoot her five times with the revolver. Later, four of the five bullets which

struck her were recovered, two being removed from her body and two found within the car.

After the shooting he demanded that she give him her purse, which she did. After receiving

the purse containing the money, as referred to in the information filed in the robbery case, the

man then beat her about the head with the .38-calibre revolver referred to in the assault with

intent to kill information.

The victim testified that, after her assailant had shot her a number of times with the

revolver, she heard it “click” and knew that it was empty. After that he demanded her purse

and she gave it to him. Thereafter he beat her with the revolver, from which all the cartridges

had been fired.

When defendant was arrested in Phoenix, Arizona the car was found in his possession, and

blood of the same type as that of the victim and hair of the same color and characteristics as

the victim's were found on clothing in his possession, the ownership of which he admitted.

An expert witness in the field of ballistics testified that the two bullets removed by surgery

from ��0 ��


the victim's body were fired from the same firearm as the two bullets found in the car.

Defendant testified in his own behalf to the effect that he had loaned the automobile to a man

hitchhiker during a period of about three hours while defendant was gambling in a Las Vegas

casino, and denied being in the car when the shooting and beating took place, although the

victim identified him as her assailant.

The state contends that the offense of robbery committed upon Dorothy Cimino was

completed when the robber demanded and received her purse containing the money, and that

the assault and beating about the head with the unloaded firearm was the assault with the

intent to kill Dorothy Cimino charged in the instant information. Appellant also contends that

the trial and acquittal of respondent on the robbery charge was not such a placing of

respondent into jeopardy as to sanction the trial court's order of dismissal. In granting

respondent's motion to dismiss, the trial court stated as its basis for such order its finding that

the essential ingredients or elements of the assault with intent to kill charge were identical or

substantially the same as with the former charge of robbery upon which respondent had been

acquitted. Art. 1, sec. 8 of the Constitution of the State of Nevada reads in part: “No person

shall be subject to be twice put in jeopardy for the same offense.” NRS 169.170 provides,

“No person can be subject to a second prosecution for a public offense for which he has once

been prosecuted and duly convicted or acquitted.”

Counsel for respondent, in arguing the motion for dismissal before the trial court, had

referred to the following Nevada statutes:

NRS 173.260, providing that different offenses may be charged in the same indictment as

long as they are in separate counts and “* * * all relate to the same act, transaction or event *

* *”; that the prosecution is not required to elect between such different offenses or counts in

the information, but the defendant may be convicted of one of the offenses charged.

NRS 174.390, which provides that when the defendant � ��

� �� &A�A�A�� A�A�A�'


is convicted or acquitted or has once been placed in jeopardy upon an information, such

conviction, acquittal or jeopardy is a bar to another information for the offense charged in the

former, or “* * * for an offense necessarily included therein * * *.”

NRS 175.455, which provides that the defendant may be found guilty of any offense, the

commission of which is necessarily included in that with which he is charged.

The trial court sustained defendant's contention that the charge of robbery by force and

violence upon which defendant had been tried and acquitted, included the charge of assault

with intent to kill. Accordingly, having found that Feinzilber had once been in jeopardy, it

entered the order of dismissal which is before us on this appeal.

The elements of robbery appear in the following portion of NRS 200.380, where that

offense is defined as, “* * * the unlawful taking of personal property from the person of

another, or in his presence, against his will, by means of force or violence or fear of injury,

immediate or future, to his person or property * * *.”

This court in State v. Marks, 15 Nev. 33, 37, outlined the elements of the charge of an

assault with intent to kill as, “ ‘* * * an unlawful attempt, coupled with a present ability, to

kill another person under such circumstances as would constitute an unlawful killing, had the

death of the person assaulted actually resulted.'” More briefly stated, robbery has as its

elements the taking of the property of another from his person or presence through the

application of force or fear. We do not find in the present charge of assault with intent to kill

the essential element of the taking of property found in the offense of robbery. State v.

Pappas, 39 Nev. 40, 41, 152 P. 571. However, it is urged by respondent that the robbery and

the charged assault with intent to kill form part of the same “transaction”, and authorities are

presented in support of the propositions that double jeopardy is shown, either (1) when the

offense upon which the accused has been placed in jeopardy is so related to the offense

contained in the subsequent charge, regardless of how it may be denominated, that �� -��:�;��


the same evidence would be used to prove both offenses; and (2) acquittal on either one of the

two charges, under the circumstances, would operate as a defense when pleaded in a

prosecution on the other charge. In People v. Majors, 65 Cal. 138, 146, 3 P. 597, 603, it was

held, “The two crimes, although committed at one time and by the same act [participation in a

conspiracy to commit murder, which eventuated in the murder of two individuals rather than

one] are entirely different in their elements, and the evidence required to convict in one case

[is] very different from that essential to a conviction in the other.”

In the robbery trial, the unlawful assault and beating with the unloaded pistol, with intent

to kill Dorothy Cimino, administered to her after the shooting and taking of her money, was

not an element of the robbery offense. The robbery would appear to have been complete

when, after shooting the victim, her assailant demanded and had received her purse and

money as the spoils of the robbery. Under the contention of appellant the additional assault

and beating then administered to the victim substantiated the gravamen of the assault with

intent to kill charge, and this was not a necessary element in the robbery charge. With this

contention we are in agreement. People v. Bentley, 77 Cal. 7, 18 P. 799; Ex Parte Chapman,

43 Cal.2d 385, 273 P.2d 817. Here the essential elements of the two offenses are not the

same, and the second is not an offense necessarily included in the first. The opinion of this

court in State v. Holm, 55 Nev. 468, 471, 37 P.2d 821, 822, stated, “The term ‘an offense

necessarily included,' as used in section 10911 N.C.L., [now NRS 174.390] has been held to

mean a lower degree of the crime charged or a minor offense of the same character,

predicated upon the same act, but does not apply to a different act. State v. Gaimos, 53 Mont.

118, 162 P. 596.” While all of the evidence may have been properly admitted in the robbery

trial, it appears that the portion of the evidence prior to the assault with the empty pistol

might have sufficed to prove the charge of robbery, and that the subsequent assault with the

unloaded firearm, under the particular �� ,��


circumstances, might be sufficient to sustain the charge of assault with intent to kill.

Cases cited by respondent may be distinguished. For example, Wilcox v. State, 74 Tenn.

571, 40 Am.Rep. 53, presented a situation where the appellants were first convicted of

robbery and subsequently convicted of assault with intent to commit murder of the same

person at the same time and place. There the court held that the assault or violence in the

robbery case was an essential element or ingredient in that offense, as well as in the offense

of assault with intent to commit murder. The appellate court stated that it “was one

continuous transaction, in which defendants perpetrated a robbery, by violence, dangerously

wounding the prosecutor * * *, and that having been punished for it in the robbery case, the

appellant should not again be punished for the assault and violence.”

Here, for the reasons indicated, while the beating charged to constitute the second offense

took place at the same time and place as the shooting and robbery, we are of the opinion that

the particular circumstances justify the conclusion that the beating, which was administered

to the victim with the firearm after all the elements of the crime of robbery were complete,

was a separate offense for the commission of which defendant here had not been once in

jeopardy. Ex Parte Chapman, supra.

[Headnote 2]

Respondent on appeal argues in effect that, by reason of his defense of alibi on the robbery

charge, the jury's verdict acquitting him on that charge is res judicata as to the second charge.

We find nothing in the record to substantiate this contention. Defendant was on trial before

the jury on the charge of robbery. The fact that the jury returned a verdict of not guilty does

not indicate that such verdict was based upon its recognition of, or giving credence to the

defense of alibi. Just as persuasively it may be said that the jury was not satisfied that the

prosecution had established each of the essential elements of the crime of robbery beyond a

reasonable doubt. Under the present record the jury verdict ��,�� ,��


may be taken only as its finding of not guilty on that particular charge then before it, and was

not res judicata to the assault with intent to kill charge. State v. Barton, 5 Wash.2d 234, 105

P.2d 63, 67.

Judgment reversed.


____________

��76 Nev. 149, 149 (1960) Viale v. Foley��

CHARLES VIALE, Doing Business as LAS GABLES MOTEL; WESTERN MOTELS, Inc.,

a Nevada Corporation, Doing Business as MIRAGE MOTEL; WILLIAM HOPKINSON,

Doing Business as TURF MOTEL; MOTEL MANAGEMENT, Inc., a Texas Corporation,

Doing Business as DESERT ISLE MOTEL; DONALD H. GILBERT, Doing Business as

ORINDA MOTEL; ABRAHAM SCHNIDER and MARJORIE SCHNIDER, Doing Business

as MATER-MEA-INN; LOUIS G. MANGELSON, Doing Business as CARDINAL MOTEL;

J. JULIUS RAPP, Doing Business as FIESTA MOTEL; STEPHEN C. DANIELS, Doing

Business as MIDWAY MOTEL; GEORGE L. WRIGHT, Doing Business as WRIGHTS'

MOTEL & APARTMENTS; DONALD H. GILBERT, and ROBERT ROSOFF, Appellants,

v. GEORGE FOLEY, District Attorney of Clark County, State of Nevada; W. E.

LEYPOLDT, Sheriff of Clark County, State of Nevada; RAY K. SHEFFER, Chief of Police

of the City of Las Vegas, STATE OF NEVADA, Respondents.

No. 4235

March 31, 1960 350 P.2d 721


Department No. 4.

Proceedings wherein appeal was taken from denial of relief by the lower court to persons

contesting validity of statute prohibiting outdoor advertising of hotel and ��

��76 Nev. 149, 150 (1960) Viale v. Foley��

motel rates. The Supreme Court, McNamee, C. J., held that showing made by protestants was

insufficient to overcome presumption of validity of statute.

Affirmed.

Murray Posin, of Las Vegas, for Appellants.

George Foley, District Attorney, Clark County, of Las Vegas, for Respondents George

Foley and W. E. Leypoldt.

Calvin Cory, of Las Vegas, for Respondent Ray K. Sheffer.

George Dickerson, of Las Vegas, Amicus Curiae.

1. Constitutional Law. Statutes come to court clothed with presumption of validity and, if enacted in exercise of police power,

with presumption that legislature intended to promote public welfare.

2. Constitutional Law. Burden is upon those attacking statute to make showing that it is unconstitutional.

3. Constitutional Law. Legislature, in exercise of its police power, may regulate commercial business advertising but cannot

absolutely prohibit such advertising when not malum in se, as such a prohibition would deprive a person of

property without due process of law.

4. Trade-Marks and Trade-Names and Unfair Competition. Legislation regulating advertising, even though it does not totally prohibit advertising, will not be

sustained if it is arbitrary or unreasonable and not reasonably related to end sought to be achieved.

5. Constitutional Law. While it is proper for trial court to permit introduction of evidence as an aid in its determination of

validity of statute, resulting from its need to promote general welfare, existence of evidence in record of

facts which would justify enactment is not necessary, as existence of facts supporting legislative judgment

is presumed.

6. Statutes. That statute prohibiting outside advertising of hotel and motel rates is applicable only to counties having

certain minimum populations does not make it other than a general law. NRS 651.040.

7. Statutes. To be a general law, a statute does not have to be operative every place in state.

��76 Nev. 149, 151 (1960) Viale v. Foley��

8. Constitutional Law; Trade-Marks and Trade-Names and Unfair Competition.

Statute prohibiting outdoor advertising of hotel and motel rates does not prohibit free speech. NRS

651.040.

9. Constitutional Law. Showing made by persons protesting that statute prohibiting outdoor advertising of hotel and motel rate

was invalid as unreasonable regulation was insufficient to overcome presumption of its validity. NRS

651.040.

OPINION


This appeal involves the validity of subsection 2 of NRS 651.040 which prohibits outdoor

or outside advertising of rates by hotels and motels for accommodations. 1

Appeal is taken from the denial of relief in three separate cases, one a suit to enjoin the

enforcement of the statute, and the other two being petitions for writ of habeas corpus brought

by two persons convicted of violating the prohibitory provisions of the statute.

It is conceded by all appellants that motels and hotels are affected with a public interest

and are subject to reasonable regulation by the legislature under its police power in order to

promote the health, safety, morals, and general welfare of the public. It is also conceded that

the advertisement of motel and hotel rates are subject to legislative regulation. Alper v. Las

Vegas Motel Association, 74 Nev. 135, 325 P.2d 767.

The only question for determination is whether NRS 651.040 is a reasonable regulation

insofar as it prohibits outside advertising of such rates.

____________________

1

“2. It is unlawful for any owner or keeper of any hotel, inn, motel or motor court in this state to post or

maintain posted on any outdoor or any outside sign:

“(a) Advertising with reference to any rates at which rooms or accommodations may be secured at such

establishment.

“(b) Advertising which employs terminology with reference to special rates for rooms or accommodations at

such establishment.

“(c) Advertising the corporate or fictitious name of such establishment or membership in any organization

the name of which pertains to or can be reasonably construed as pertaining to the rate of rooms or

accommodations at such establishment”

��76 Nev. 149, 152 (1960) Viale v. Foley��

[Headnotes 1, 2]

Statutes come to a court clothed with the presumption of validity, Caton v. Frank, 56 Nev.

56, 44 P.2d 521, and if enacted in the exercise of police powers it is presumed that the

legislature intended to promote the public welfare. Semler v. Oregon State Board of Dental

Examiners, 148 Ore. 50, 34 P.2d 311, aff'd, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086. The

burden is upon those attacking the statute to make a showing that the statute is

unconstitutional. Weaver v. Palmer Bros. Co., 270 U.S. 402, 46 S.Ct. 320, 70 L.Ed. 654;

Serve Yourself Gasoline Stations Ass'n. v. Brock, 39 Cal.2d 813, 249 P.2d 545.

[Headnote 3]

The general rule is that the legislature in the exercise of its police power may regulate

commercial business advertising, but it cannot absolutely prohibit such advertising when it is

not malum in se, because such prohibition would deprive a person of a property right without

due process of law. 2 Serve Yourself Gasoline Stations Ass'n. v. Brock, supra; People v.

Osborne, 17 Cal.App. Supp.2d 771, 59 P.2d 1083. See City of Reno v. District Court, 59

Nev. 416, 95 P.2d 994, 125 A.L.R. 948; Hart v. City of Beverly Hills, 11 Cal.2d 343, 79 P.2d

1080.

It is to be noted that the restrictive legislation found in said subsection 2 pertains to

advertising only; that the advertising which is regulated relates only to room rates; and that

the advertising of room rates is prohibited only with respect to outdoor or outside signs.

Under these circumstances it cannot be said that there is a prohibition against all forms of

advertising nor is there a total prohibition of advertising of room rates. The statute does not

prohibit all outdoor signs or all advertising. Outdoor advertising of the type of

accommodations, services, and accessories afforded is not restricted. Advertising of rates by

newspaper, television, radio broadcasting, handbills, etc., is not prohibited. In other words,

the statute must be construed as restrictive �� ,��

____________________

2

It is conceded that in the regulation of professions, rate advertising may be prohibited. See Semler v.

Oregon State Board of Dental Examiners, supra.

��76 Nev. 149, 153 (1960) Viale v. Foley��

and regulatory of the manner and means of advertising rates rather than an absolute

prohibition against any kind of advertising and thus involves no absolute denial of a property

right without due process of law.

In the case of City of Daytona Beach v. Abdo, Fla. App., 112 So.2d 398, 401, the District

Court of Appeal of Florida had before it a city ordinance which totally prohibited outdoor

advertising of hotel and motel rates, and in addition thereto the ordinance prohibited outdoor

advertising of free accessories and free services. The court held that such an ordinance was

not unconstitutional on its face.

The opinion recites:

“It seems to have been the primary thrust of plaintiff's position before the chancellor, and

his position here, that since the ordinance in question is prohibitory as distinguished from

regulatory in character, it violates his constitutional right to not be deprived of life, liberty or

property without due process of law. He agrees as did the chancellor, that the ordinance might

be valid if it merely sought to regulate the size, type and composition of outdoor advertising

signs. He successfully contended in the trial court, and contends here, that the absolute

prohibition of outdoor advertising of rates for tourist accommodations bears no reasonable

relationship to the general welfare of the community, and is therefore not the proper subject

of regulation under the police power granted to the City in its charter.”

The Florida appellate court held in effect that even the total prohibition is not fatal to

constitutionality if the general welfare will be protected, and went on to say that whether the

general welfare would be protected was a factual matter which should not be determined on a

motion for summary judgment. The decree of the lower court was reversed. Certiorari was

denied by the Supreme Court of Florida on March 2, 1960. Abdo v. City of Daytona Beach,

Fla., 118 So.2d 540.

[Headnote 4]

Even in cases where there is no total prohibition of advertising, the regulation will not be

sustained if it is ��

��76 Nev. 149, 154 (1960) Viale v. Foley��

arbitrary or unreasonable, and is not reasonably related to the end sought to be achieved

which in this case is the protection of the traveling public. It was because of this rule that

legislation limiting outside price advertising of gasoline to small placards posted on gas

pumps has been held invalid. Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634. The

purpose of the regulation in that case was to prevent fraud and deception, and it is apparent

that the public could be better protected by signs in excess of a certain prescribed size.

Accord, State v. Guyette, 81 R.I. 281, 102 A.2d 446. The contention of appellants that an

analogy may be drawn from such cases is without merit.

True it is that there is no evidence in the record herein which would tend to show the need

for this particular legislation to protect the traveling public. That the protection of the

traveling public is necessary to promote the general welfare is pointed out, however, in the

case of Adams v. Miami Beach Hotel Association, Fla., 77 So. 2d 465, 467. In that case

without any determination of facts the Florida Supreme Court said: “It is a matter of common

knowledge that travelers are often confronted with a sign proposing comfortable lodging at

very modest prices, say, $2.50 to $4.00 per night. He pulls up to such a place and finds that

all rooms at the advertised price are taken and that the only available lodging is two or three

times the price advertised. It can readily be seen that the underlying purpose of the act is to

break up this species of deception. Some of the hotels go so far as to advertise their rates and

then when one gets in and registers he is charged a ‘convention' rate, four or five times the

regular rate advertised.” See also City of Sarasota v. Sunad, Inc., Fla.App., 114 So.2d 377.

[Headnote 5]

While it is proper for the trial court to permit the introduction of evidence as an aid in its

determination of the validity of a statute resulting from the need to promote the general

welfare, Ex parte Kair, 28 Nev. 127, 80 P. 463, 113 Am.St.Rep. 817, 6 Ann.Cas. 893, the

existence of evidence in the record of facts which would �� -��

��76 Nev. 149, 155 (1960) Viale v. Foley��

justify the enactment is not necessary; the existence of facts supporting the legislative

judgment is presumed. Ex parte Nash, 55 Nev. 92, 26 P.2d 353; Clark v. Paul Gray, 306 U.S.

583, 59 S.Ct. 744, 83 L.Ed. 1001; U.S. v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778,

82 L.Ed. 1234. “The Legislature, in the first instance, is the judge of what is necessary for the

public welfare, and, in the absence of a showing of arbitrary interference with property rights

or of the lack of a substantial relation between means and a legitimate subject for regulation,

we cannot declare this legislation invalid. * * * [I]t must be presumed that the Legislature has

made a careful investigation in the field, and that it has properly determined that the interests

of the public require this regulation.” Serve Yourself Gasoline Stations Ass'n. v. Brock,

supra. In Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 S.Ct. 370, 374, 60 L.Ed. 679,

the court said “* * * legislation is not arbitrary, if any state of facts reasonably can be

conceived that would sustain it, and the existence of that state of facts at the time the law was

enacted must be assumed. * * * It makes no difference that the facts may be disputed or their

effect opposed by argument and opinion of serious strength. It is not within the competency

of the courts to arbitrate in such contrariety. * * * It is the duty and function of the legislature

to discern and correct evils, and by evils we do not mean some definite injury but obstacles to

a greater public welfare.”

In addition to the presumption of the need of this statute for the promotion of the public

welfare, such need for this type of regulation is further evidenced by the fact that the 1960

session of the Nevada Legislature has enlarged the application of NRS 651.040 to apply to

counties having a population of 10,000 or more persons when theretofore it applied only to

counties of 25,000 or more persons.

[Headnotes 6,7]

The contention of appellants that the statute is discriminatory and arbitrary in violation of

state and federal constitutions in that it is made applicable only to counties having a certain

minimum population and is ��

��76 Nev. 149, 156 (1960) Viale v. Foley��

not therefore a general law is without merit. To be a general law, a statute does not have to be

operative every place in the state. State ex rel Shirley v. Lutz, 226 Ala. 497, 147 So. 429;

State v. Dade County, 157 Fla. 859, 27 So.2d 283; Robinson v. Broome Co., 276 App.Div.

69, 93 N.Y.S.2d 662, aff'd, 301 N.Y. 524, 93 N.E.2d 77.

[Headnote 8]

The statute in question does not infringe upon the constitutional guarantee of free speech.

Hirsch v. City and County of San Francisco, 143 Cal.App.2d 313, 300 P.2d 177.

[Headnote 9]

Appellants have failed to overcome the presumption of the validity of the contested

statute. The judgment of the lower court holding constitutional NRS 651.040 and denying

relief to appellants is therefore affirmed.


____________

��76 Nev. 157, 157 (1960) Kelley v. Raggio��

GUY T. KELLEY, IRENE R. KELLEY, LOUIS TERRANA, ROBERT H. BOYD, FRANK

B. MONROE, NAN SMITH, THELMA STRAIGHT, AGNES THOMAS, HOMER

CHARLES and MELVIN TUFFO, Appellants, v. WILLIAM RAGGIO, C. W. (BUD)

YOUNG, TED BERRUM and ROBERT GALLI, Respondents.

No. 4236

March 31, 1960 350 P.2d 724


Department No. 2.

Affirmed. [Reporter's note: Appeal to the Supreme Court of the United States was dismissed November 7, 1960

for want of a substantial federal question.]

Gray & Young, of Reno, for Appellants.

William J. Raggio, District Attorney, Washoe County, of Reno, for Respondents.

Roger D. Foley, Attorney General, and John A. Porter, Deputy Attorney General, Amici

Curiae.

OPINION


This is an appeal from a judgment dismissing a complaint to enjoin the enforcement of

NRS 651.040 upon the ground of its unconstitutionality.

It is conceded that the identical principles of law presented herein were urged in the case

of Viale v. Foley, No. 4235, 76 Nev. 149, 350 P.2d 721, the opinion in which has been

handed down today. The decision in that case is determinative of the issues here involved.

Affirmed.


____________

��76 Nev. 158, 158 (1960) Rainsberger v. State��

JACK RAINSBERGER, Appellant, v. THE


No. 4198

April 6, 1960 350 P.2d 995

Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,

Department No. 3.

Proceeding on motion by state to determine degree of crime of murder and the punishment

to be imposed. From adverse judgment of the trial court the defendant appealed. The Supreme

Court, McNamee, C. J., held that where defendant's counsel asked that rule excluding from

the courtroom any witness of adverse party be invoked as to state's witnesses, but the court in

its order invoked it as to all witnesses in the case, refusal to permit a witness for defendant to

testify because he had sat in courtroom for five minutes before being called was prejudicial

error when witness' presence in courtroom was without knowledge of defendant's counsel and

was due to a misunderstanding on part of witness.

Reversed and remanded with instructions.

Samuel S. Lionel, of Las Vegas, for Appellant.

Roger D. Foley, Attorney General, and George Foley, District Attorney, Clark County, for

Respondent.

1. Criminal Law. Although affidavit in support of motion for continuance to determine degree of crime charged and

punishment to impose was not in strict compliance with court rule, trial court had discretion to grant a

continuance upon showing that application for continuance was made in good faith and not merely for

delay and court did not err in granting state's motion for continuance so that witnesses for state could be

present to testify. District Court Rules, rule 21.

2. Criminal Law. In prosecution on charge of murder to which defendant entered a plea of guilty, no prejudice resulted to

defendant by permitting state witnesses, whose names were endorsed on information after hearing started,

to testify as to presence of defendant at scene of crime.

3. Criminal Law. Where defendant's counsel asked that rule excluding from courtroom any witness of adverse party be

invoked as to state's �� ,�� 0�� ,��0 ��


witnesses, but court in its order invoked it as to all witnesses in the case, refusal to permit witness for

defendant to testify because he had sat in courtroom for five minutes before being called was prejudicial

error when witness' presence in courtroom was without knowledge of defendant's counsel and was due to

misunderstanding on part of witness. NRS 48.250.

4. Criminal Law. It is within discretion of trial court to exclude witnesses from courtroom during criminal proceedings.

NRS 48.250.

5. Criminal Law. While violation of rule regarding exclusion of witnesses from courtroom may subject a witness to

punishment such as contempt of court and will affect his credibility, it will not of itself operate to render

witness incompetent to testify. NRS 48.250.

6. Criminal Law. Proceeding for determining degree of crime of murder and for fixing penalty therefor on a plea of guilty

is not a trial.

7. Criminal Law. Determination of degree of crime of murder requires a judicial determination based on competent

evidence, material and relevant to the question of degree, but no other issue is left to try and the state is not

required to present proof of the corpus delicti.

OPINION


On November 26, 1958 an information was filed in the court below charging appellant

with murder. Appellant appeared for arraignment on November 28, 1958, and at his request

that the court appoint an attorney to represent him, Samuel S. Lionel, Esquire, was appointed

attorney for appellant.

On motion of appellant's counsel the arraignment was ordered continued until December

1, 1958, and at the time so appointed, appellant's counsel requested a further continuance

until December 15, 1958. On the last-mentioned day, and again at the request of appellant's

counsel, the matter was continued until January 9, 1959, at which time the arraignment took

place, appellant pleaded guilty to the charge contained in the information, and the matter was

continued until January 20, 1959 for the purpose of taking evidence to determine the degree

of the crime charged and the punishment to be ��


imposed. On January 15, 1959 appellant was present in court with his counsel when the state

made a motion that the hearing to determine degree and punishment be continued from

January 20, 1959 to a later date in order to obtain the attendance of certain witnesses for the

state. Over the objection of appellant, the said hearing was continued until February 19, 1959.

From the evidence presented at the hearing the court concluded that appellant was guilty of

murder in the first degree and fixed the penalty at death.

Appellant has assigned several errors which are hereinafter considered separately:

[Headnote 1]

(1) Error is claimed in the action of the court in granting a continuance so that witnesses

for the state could be present to testify. Rule 21 (formerly Rule 12), Rules of District Court,

requires motions for continuance to be made upon affidavit and further provides that no

continuance will be granted unless the affidavit conforms to the rule. Although the affidavit

was not in strict compliance with Rule 21, the trial court nevertheless had discretion to grant a

continuance upon the showing that the application for continuance was made in good faith

and not merely for delay. Giorgetti v. Peccole, 69 Nev. 76, 241 P.2d 199.

[Headnote 2]

(2) Defendant contends that it was error for the court to permit witnesses to testify for the

state whose names were endorsed on the information after the hearing had started. In State v.

Monahan, 50 Nev. 27, 249 P. 566, this court said: “* * * the endorsement of names of

witnesses upon an information is largely a matter of discretion of the court; and, in the

absence of a showing of abuse, or that some substantial injury has resulted to the accused, an

order permitting such endorsement, even after the trial has commenced, does not constitute of

itself reversible error.” The witnesses so permitted to testify were agents of the Federal

Bureau of Investigation and their testimony related only to the presence of the defendant at

the scene of ��


the crime. Since this fact was admitted by the defendant through his plea of guilty to the

homicide, no prejudice resulted to the defendant. It further appears that the court offered to

grant defendant a continuance in order to meet the testimony of these witnesses but such offer

was rejected.

[Headnote 3]

(3) Error is claimed in the court's refusal to permit defendant's witness, one Padbury, to

testify. The reason for the court's refusal was that said witness had sat in the courtroom for

five minutes before being called. NRS 48.250 provides: “If either party require it, the judge

may exclude from the courtroom any witness of the adverse party, not at the time under

examination, so that he may not hear the testimony of other witnesses.” Appellant's counsel

asked that the rule be invoked as to the state's witnesses, but the court in its order invoked it

as to all witnesses in the case.

[Headnote 4]

It is to be noted that this section of the Nevada statutes is part of its civil practice sections

and makes it mandatory upon trial courts in civil actions to exclude witnesses when the rule is

invoked. While this state has no statutory requirement for the exclusion of witnesses in

criminal actions, nevertheless it is within the discretion of the trial court to exclude witnesses

from the courtroom during criminal proceedings. See 24 C.J.S., sec. 1872, p. 770.

In 6 Wigmore, Evidence sec. 1837 (3d ed. 1940) the history of the expedient of separating

witnesses “in order to detect falsehood by exposing inconsistencies,” is traced from ancient

times. “The practice,” it is stated, “of course crossed the water with the common law. Today,

in many jurisdictions of the United States and Canada, statutes have expressly (though

unnecessarily) made provision for sequestration, usually concerning its employment before

committing magistrates.”

[Headnote 5]

While a violation of the rule may subject a witness to punishment such as contempt of

court and will affect ��


his credibility it will not of itself operate to render the witness incompetent to testify. State

v. Lewis, 50 Nev. 212, 255 P. 1002; State v. Salge, 2 Nev. 321.

Before the witness Padbury could even state his name, respondent objected to his giving

testimony because he had been sitting in the courtroom. The witness' presence in the

courtroom was without the knowledge of appellant's counsel and was due to a

misunderstanding on the part of the witness. The court sustained the objection and refused to

permit the witness to testify. We think this was prejudicial error. In State v. Salge, supra, this

court said: “The record does not show how much of the evidence they heard, whether their

presence was accidental, and a mere oversight in the witnesses, or whether it was a deliberate

disobedience of the order of the court. Nor does the record show that the defendant himself

was at all blamable for their presence. Being a prisoner at the bar, on trial, it is hardly

presumable the defendant could have controlled the witnesses. No misconduct on their part

(in which the defendant did not participate) could deprive the prisoner of his right to have the

testimony. If the witnesses willfully disobeyed the orders of the court, they laid themselves

liable to punishment for contempt, and threw suspicion on their testimony, but did not affect

the defendant's right to have the benefit of their testimony as far as it was worth anything.”

(4) Inasmuch as the appellant must be afforded a new hearing we deem it necessary to

comment briefly upon appellant's remaining assignments of error. Evidence in the record was

sufficient (contrary to appellant's contention) to show that appellant's confession was

voluntary and therefore properly admitted in evidence. There was no evidence which

appellant was permitted to present which could compel a different conclusion. Although the

record is silent as to what Padbury's testimony would have been, it is stated in appellant's

brief that if Padbury had been permitted to testify, his testimony might have influenced the

court to disregard the confession. This becomes significant because statements ��


in the confession were relevant to the determination of the degree of the offense.

[Headnotes 6, 7]

Appellant contends that there was no evidence independent of the confession to prove the

corpus delicti. This contention is without merit. While we are of the opinion that the corpus

delicti was sufficiently shown by reason of our holding in the case of Sefton v. State, 72 Nev.

106, 295 P.2d 385, it must be remembered that the proceeding under our statute for

determining the degree of the crime of murder and for fixing the penalty therefor on a plea of

guilty is not a trial. State v. Blackwell, 65 Nev. 405, 198 P.2d 280, 200 P.2d 698. The

determination of the degree does of course require a judicial determination based on

competent evidence, material and relevant to the question of degree. People v. Bellon, 180

Cal. 706, 182 P. 420. But no other issue is left to try and the state is not required to present

proof of the corpus delicti. Ramos v. State, 58 Nev. 446, 83 P.2d 147.

Because of the prejudicial error aforesaid the judgment is reversed and the sentence

vacated. The cause is remanded for a new hearing in accordance with the provisions of

subsection 3 of NRS 200.030.

It is further ordered that the Honorable Grant Bowen, Judge of the Second Judicial

District, and the Honorable Merwyn H. Brown, Judge of the Sixth Judicial District, be and

they are hereby appointed, along with the Honorable John Mowbray, successor of the

Honorable Ryland G. Taylor, deceased, who was the District Judge before whom appellant's

plea of guilty was made, to determine the degree of the crime and give sentence accordingly.


____________

��76 Nev. 164, 164 (1960) Ray v. Hawkins��

IDA ANGELOT RAY, CARL REED and RALPH STEINER, as Trustees of the Last Will

and Testament of Carl Ray, Deceased, Appellants, v. L. O. HAWKINS and HOWARD W.

CANNON, Respondents.

No. 4244

April 11, 1960 350 P.2d 998

Appeal from the Eighth Judicial District Court, Clark County; John F. Sexton, Judge,

Department No. 1.

Action to partition real estate. The trial court ordered sale of real estate and distribution of

proceeds and defendants appealed. The Supreme Court, McNamee, C. J., held that

notwithstanding fact that instrument stated that grantees therein were to be trustees under

provision of certain dated trust agreement, in absence of any description of the contracting

parties reference to independent agreement must be disregarded because of lack of

definiteness and uncertainty, but whether grantees were to be considered as owners of fee or

trustees of an express trust was immaterial to their right to sue for partition.

Affirmed with directions.

Harry E. Claiborne, of Las Vegas, for Appellants.

Ralston O. Hawkins, of Las Vegas, for Respondents.

1. Trusts. Where instrument conveying land disclosed intention of grantor to create an express trust even though

neither cestui que trust nor purpose to which corpus of trust could be applied was designated with any

degree of certainty, reference in instrument to trust agreement dated on a specified date but without any

description of contracting parties must be disregarded because of lack of definiteness and uncertainty.

NRS 111.010.

2. Partition; Trusts. Whether grantees in conveyance by which grantor expressed intention to create an express trust were to

be regarded as owners of fee or as trustees of an express trust was immaterial to issue of grantee's right to

sue for partition of real estate, and in either case they could sue in their own names without designating or

joining with them parties for whose benefit action might be brought. NRCP 17(a).

��76 Nev. 164, 165 (1960) Ray v. Hawkins��

3. Partition. In action to partition real estate brought by parties claiming a one-third interest therein where it appeared

that paramount reason of defendants for contesting partition was fact that rights of interested parties to

proceeds from partition sale had not been finally adjudicated, because of protracted litigation it was for the

best interests of all concerned that real estate be sold and proceeds held for distribution to parties

determined to be entitled thereto upon termination of companion litigation.

OPINION


This is an action commenced by respondents to partition certain real estate in Las Vegas,

Nevada, known as the Professional Building. The trial court ordered a sale of said property

and distribution of the proceeds therefrom. Appeal is from such judgment.

During the process of administration of the estate of Carl Ray, deceased, a one-third

interest in said property was deeded to one Barringer through whose title respondents base

their claim of interest in this property. Upon final distribution of said estate, the remaining

two-thirds interest in said property was conveyed to the appellants as testamentary trustees in

accordance with the terms of decedent's will. The complaint alleges that respondents hold

their said interest and are in possession of said property as tenants in common with

appellants.

As giving them the right to maintain this partition action, the respondents offered in

evidence a document entitled “Trust Deed” which purports to be a conveyance of Barringer's

one-third interest in said property to respondents. The document was received in evidence

over the objection of appellants, and such ruling of the trial court is the chief assignment of

error on this appeal.

The document describes Barringer as grantor and Hawkins and Cannon as grantees, and

recites that in consideration of $1.00 and other good and valuable consideration, Barringer

does “hereby convey and warrant ��>��@��6��,�� 6��K�

��76 Nev. 164, 166 (1960) Ray v. Hawkins��

unto L. O. Hawkins and Howard W. Cannon, * * * as Trustees, under provision of Trust

Agreement dated the second day of March 1953,” the said one-third interest “to have and to

hold said premises with appurtenances upon the Trust and for the uses and purposes herein

and in said Trust Agreement set forth.”

The only objection by appellants to said document was made at the time it was identified

by Barringer, the grantor named therein, during his direct examination by respondents. The

basis of the objection was that it “appears to be an incomplete document inasmuch as the trust

deed makes reference to an agreement and embraces an agreement of which is not attached

thereto or apart of it * * *.”

Later during said direct examination, Barringer was asked: “Mr. Barringer, other than the

deed that has been introduced into evidence as Plaintiff's Exhibit C, the document entitled

Trust Deed to the plaintiffs L. O. Hawkins and Howard W. Cannon, have you executed any

other deed to any other person for the interest that you have in this property?” To which he

answered: “I have not.”

Appellants did not cross-examine Barringer and at no time made any demand for the

agreement referred to in said Exhibit C.

The instrument (Exhibit C) constitutes a conveyance of land as defined by NRS 111.010. 1

[Headnote 1]

It is apparent from the language employed therein that it was the intention of the grantor to

create an express trust, even though neither a cestui que trust nor the purpose to which the

corpus of the trust could be applied is designated with any degree of certainty. True it is that

the instrument states that the grantees were to be trustees “under provision of Trust

Agreement dated the second day of March 1953,” but without any description of the

contracting parties, the reference �� ,��

____________________

1

“ ‘Conveyance' shall be construed to embrace every instrument in writing, except a last will and testament,

whatever may be its form, and by whatever name it may be known in law, by which any estate or interest in lands

is created, aliened, assigned or surrendered.”

��76 Nev. 164, 167 (1960) Ray v. Hawkins��

to an independent agreement must be disregarded because of its lack of definiteness and its

uncertainty.

In the case of Sansom v. Ayer, 144 Ky. 555, 139 S.W. 778, the court said: “The weight of

authority seems to be that where an instrument vests title in one as trustee, without disclosing

on the face of the instrument the nature of the trust or the name of the cestui que trust, then

the word ‘trustee' is merely descriptive and the ownership vests in the individual in fee; or, to

differently express our meaning, when the instrument creating the trust fails to disclose the

beneficiary of the trust, the trustee named takes in fee, and may convey the title without the

joinder of the cestui que trust.”

[Headnote 2]

Whether respondents are to be considered as owners of the fee or as trustees of an express

trust within the meaning of NRCP 17(a) is immaterial to the issue of respondents' right to sue

for partition. In either case they may sue in their own names without designating or joining

with them the party, if someone other than the respondents, for whose benefit the action is

brought. Sansom v. Ayer, supra; Castleman v. Redford, 61 Nev. 259, 124 P.2d 293.

Appellants insist however that if said Exhibit C was in fact a deed of trust in the nature of

a mortgage given merely as security for a debt, then the respondents' powers thereunder

would be limited to a sale on default or a reconveyance upon satisfaction of the debt; that for

this reason, the reception in evidence of Exhibit C without its companion document referred

to therein as the Trust Agreement dated March 2, 1953 was prejudicial. We deem it

unnecessary to decide this point in view of appellants' second defense in their answer and our

conclusion herein.

[Headnote 3]

It appears from appellants' said second defense that their paramount reason for contesting

partition is the fact that the rights of the parties interested in any proceeds from a partition

sale have not been finally adjudicated. In the case of Gunderson v. Barringer, 76 Nev.

��76 Nev. 164, 168 (1960) Ray v. Hawkins��

133, 350 P.2d 397, we ordered the trial court to permit an amendment of the pleadings therein

so that the rights of the parties interested in the estate of Carl Ray, deceased, and in the land

sought to be partitioned herein could be ascertained and finally determined.

Because of the protracted litigation in connection with this estate (see Gunderson v.

Barringer, supra), it is obviously for the best interests of all concerned that the said

Professional Building be sold and the proceeds therefrom held for distribution to the parties

entitled thereto.

The judgment is affirmed insofar as it provides for a sale of the property described therein,

provides for the payment of costs of the plaintiffs below, and provides for the payment to

lienholders of the amount of their claims including costs and interest on the obligations as

found due.

After making the payments aforesaid and in addition thereto the payment of costs in

connection with the sale, the balance remaining from the proceeds of such sale shall be

retained by the trial court until the final judgment in the case of Gunderson v. Barringer,

supra, and then distributed in accordance with the adjudication therein contained.

No costs are allowed.


____________

��76 Nev. 169, 169 (1960) McKenna v. Ingersoll��

MARIE E. McKENNA, Appellant, v.

BARBARA INGERSOLL, Respondent.

No. 4246

April 12, 1960 350 P.2d 725



Action for injuries allegedly sustained by plaintiff when her automobile was struck from

rear by one operated by defendant. The lower court rendered judgment for defendant, and

plaintiff appealed. The Supreme Court, Pike, J., held that there was a substantial conflict of

evidence as to whether accident had been cause of plaintiff's neck condition or aggravation of

any preexisting neck condition.

Judgment affirmed.

George E. Franklin, Jr., of Las Vegas, for Appellant.

Morse, Graves & Compton, of Las Vegas, for Respondent.

1. Automobiles. In action for injuries allegedly sustained by plaintiff when her automobile was struck from rear by one

operated by defendant, evidence sustained plaintiff's contention that her conduct had not contributed to

collision and that any negligence involved was attributable entirely to defendant.

2. Appeal and Error. In action for injuries allegedly sustained by plaintiff when her automobile was struck from rear by one

operated by defendant, it would have to be assumed, on appeal from judgment for defendant, that jury had

considered all of medical evidence along with evidence relating to force of impact, in concluding that

collision did not aggravate preexisting condition of plaintiff's cervical spine, and that jury had understood

instructions and had correctly applied them to evidence.

3. Damages. In action for injuries allegedly sustained by plaintiff when her automobile was struck from rear by one

operated by defendant, evidence would support finding that accident had not been cause of plaintiff's neck

condition or of aggravation of any preexisting neck condition.


4. Appeal and Error. Where there was material conflict of evidence on determinative issues which jury was required to decide,

judgment rendered on jury verdict would not be disturbed on appeal.

OPINION


This appeal is from a judgment based upon a jury verdict denying damages to plaintiff in a

personal injury case, and the order denying motion for new trial. Appellant claimed damages

for personal injuries assertedly sustained by her as a result of respondent's negligence in

driving another car into the rear of the car operated by appellant.

The accident occurred at a street intersection in Las Vegas, Nevada about four o'clock in

the afternoon of November 18, 1957. The traffic control lights at the intersection of

Charleston Boulevard and Main Street were then being manually operated by a Las Vegas

police officer. Respondent was driving her car in an easterly direction in the middle traffic

lane on Charleston Boulevard immediately behind the car driven by appellant. The car just in

front of appellant's car, in the same line of traffic, was stopped at the intersection by the

traffic light and appellant and respondent also stopped their cars without incident. However,

when the traffic signal changed so as to permit the line of cars to proceed through the

intersection, respondent drove the front end of her car against the rear end of appellant's car.

This, according to appellant's testimony, caused the front end of appellant's car to strike the

rear end of the car immediately ahead of it. Appellant's two small children were seated with

her in the front seat of her car.

Appellant claimed injuries to her cervical spine of the type referred to as a whiplash of the

neck, caused by the rear end collision. She testified she had never had any trouble with her

neck prior to the accident. On the same day, following the accident, X-ray pictures of her

spine were taken, followed by treatments including traction and the wearing of a series of

collars to support her neck.


Early in May 1958 a myelogram was taken which disclosed an obstruction of the spinal

canal and thereafter surgery was performed on appellant's neck in order to relieve pressure on

a nerve root. The neurological surgeon who performed the operation attributed such pressure

on the nerve to a herniated disc between the vertebrae in appellant's cervical spine.

Appellant asserts as error, (1), insufficiency of the evidence to justify the verdict and that

the verdict was against law; and, (2), manifest disregard by the jury of certain instructions. In

support of such first assignment of error appellant argues that, as the uncontradicted evidence

is that the rear end collision was caused solely by respondent's negligence, as a matter of law,

respondent was liable for any injury to appellant resulting therefrom, and also that the

undisputed evidence shows that appellant sustained certain injuries as a result of the collision.

[Headnote 1]

The record sustains appellant's contention that her conduct had not contributed to the

collision and that any negligence involved in such rear end collision was attributable entirely

to respondent.

The police officer, who was controlling traffic by use of the traffic lights, testified that he

observed the cars driven by the respective parties to this appeal as they approached the

intersection heading east and that it was respondent's car which made the “contact” with the

rear of appellant's car. Mrs. Ingersoll, respondent, testified with reference to the

circumstances under which her car struck the car driven by Mrs. McKenna, appellant, and we

find no evidence in the record inconsistent with her statements. On this point her testimony

reads, “I pulled up behind Mrs. McKenna I'd say three or four feet and I stopped because the

light was on red; the light changed and I started the car and evidently I started before she did

because I bumped her. I don't know, possibly I might have shifted into high, but I bumped

her, nevertheless.” Respondent continued with her testimony to the effect that respondent's

car had picked up “no momentum at ��'�� 0 ��


all” in traveling the three or four feet separating her car from appellant's just prior to the

impact. Respondent also stated that her car “* * * must have been going 4 or 5 miles per

hour, just like when you start up, * * *” at the time of the bump. Appellant contended that an

impact of some considerable force occurred.

On this appeal, after stressing the manner in which the collision between the cars occurred,

appellant proceeds to a detailed statement concerning the injuries, refers to the condition of

appellant's cervical spine subsequent to the collision, and the medical and surgical care

accorded her in an effort to bring her relief from such objectionable neck conditions. Much of

this evidence is uncontradicted, as contended by appellant.

In support of appellant's second assignment of error on this appeal, appellant states

manifest disregard by the jury of certain instructions, placing liability upon respondent should

the jury find that respondent's negligence caused an aggravation of a preexisting disability

suffered by the appellant. As the disabilities asserted by appellant were those already referred

to, pertaining to the cervical spine, these instructions had the effect of advising the jury that,

in order for the appellant to recover, she need not necessarily establish that respondent's

negligence caused the injury to appellant's neck, but that it would suffice for her to show that

respondent's negligence had aggravated a cervical spine disability existing prior to the

collision.

Both of these assignments of error must be reviewed in the light of respondent's defense.

That defense, while admitting the collision took place, as stated, contended that the impact

between the cars was so minor in force and degree as to have caused no whiplash injury to

appellant's neck, and no aggravation of a preexisting neck condition. In support of this

defense, as to the degree of the impact, the record shows that the jury had before it, besides

the testimony of respondent, certain other evidence which it was entitled to consider and

weigh. Officer Al Hartley, who observed the occurrence from his traffic control location,

referred to the collision between the cars as “* * * just a tap from the striking ��'��


vehicle”, and stated that even a minor damage report on the accident was unwarranted. He

corroborated respondent's testimony that, immediately upon her car being struck from the

rear, both vehicles having stopped, appellant jumped out of her car and carried on a

discussion with respondent in loud tones. He also testified that he failed to observe any

injuries sustained by appellant or either of her two children, although appellant had contended

that both of the children had been thrown forward from their seats and had received minor

injuries to their faces. Such throwing forward of the two children, as well as appellant,

considering that appellant's car had been struck from the rear, would be understandable upon

accepting appellant's testimony that her car was forced into the car immediately ahead of it

with enough momentum to bring this about.

The traffic officer testified that he did not observe appellant being thrown forward against

the steering wheel as she testified. Appellant testified that the person driving the car just

ahead of her, into which her car was forced, got out before resuming progress through the

intersection, but the traffic officer and respondent both testified that such third car drove on

immediately and that the driver did not get out. Respondent testified that her first concern,

when approached by appellant, was to inquire if anyone had been injured in appellant's car,

and she did so, to which inquiry appellant replied that no one had been injured. At appellant's

insistence, respondent accompanied her to an automobile agency to see about any repairs

required to be made to appellant's car by reason of the collision, and after such examination

the agency found the repairs to be minor in nature. The jury had photographs of the cars

available for their consideration, as well as repair estimates and bills. Appellant sought no

damages for repairs to her car.

[Headnotes 2-4]

George L. Abrums, M.D., in testifying, referred to the report which he had made on the

X-rays taken of appellant's cervical spine on the evening of the day upon which the collision

occurred. His testimony referred to a narrowing space between the 5th and 6th, and also��3��/��,�� ,�� L<��


between the 6th and 7th cervical vertebrae of the neck and to characteristics of the bone on

the back of the vertebrae which showed that the condition had existed for nine months or a

year prior to the date of the X-rays, and stated that there had been chronic pain on the

posterior longitudinal ligaments. He testified that the heavy bone growth sclerosis of a

particular margin showed that the narrowing had been there and that the bone edges, instead

of being properly separated, had been rubbing together with friction and strain for about the

time indicated. The doctor testified that there was no doubt in his mind that the neck

condition existed prior to the accident. Also, when asked to refer to the hospital records and

determine whether or not subsequently a laminectomy had been performed, he testified that,

from what the X-rays upon which he had reported had disclosed, he would not have been

surprised if there had been such an operation performed and “it has been overdue.” The

doctor who subsequently performed the laminectomy on appellant's neck also stated that he

had observed on such X-rays a narrowing between the fifth and sixth vertebrae; that the

myelogram subsequently taken showed an obstruction at the sixth cervical vertebrae level in

the spinal canal and that, in the operation, the bony covering of the spinal canal, which was

removed, involved this vertebra and the vertebrae on each side of it. While the same

neurological surgeon who operated testified that the compression of the surgical root was

caused by an intravertebral disc being out of place, forming the obstruction in the spinal

canal, the jury was entitled to consider his testimony along with the other medical testimony

and evidence in the case for the purpose of determining whether appellant's neck condition

existed prior to the accident or was caused by the accident. Similarly, the jury must be viewed

as having considered all of such medical testimony and evidence along with the evidence

relating to the force of the impact, in concluding whether or not the collision had aggravated

any already existing condition in appellant's cervical spine, in the event it found the neck

condition to have been a preexisting one. Likewise, we must � ��


assume that the jury understood the instructions and correctly applied them to the evidence.

Nunneley v. Edgar Hotel, 36 Cal.2d 493, 225 P.2d 497, 502. Here, in view of the evidence

referred to, and in the absence of any sufficient showing to the contrary, we must assume that

the jury followed the instructions relating to any aggravation caused by the collision to a

preexisting condition of appellant's neck. Ames v. Western Pacific, 48 Nev. 78, 88, 227 P.

1009, 1012. We find appellant's contention of manifest disregard by the jury of such

instructions unsupported by the record.

Although the evidence is uncontroverted that the collision was caused by respondent's

negligence, and there is no substantial conflict concerning appellant's neck condition

following the accident, there was a substantial conflict of evidence as to whether or not the

accident was the cause of appellant's neck condition or of the aggravation of any preexisting

neck condition.

The evidence as hereinabove reviewed sufficiently points out the material conflict of

evidence on such determinative issues which the jury was required to decide. Accordingly,

the verdict of the jury will not be disturbed upon appeal. Tonopah Lumber Co. v. Riley, 30

Nev. 312, 95 P. 1001. There is substantial evidence supporting the jury verdict in favor of

respondent, and the judgment based upon it must stand. Cram v. Durston, 68 Nev. 503, 505,

237 P.2d 209, 210. Judgment and order denying appellant's motion for new trial are affirmed,

with costs to respondent.


____________

��76 Nev. 176, 176 (1960) State Ex Rel. Dep't of Highways v. Olsen��

THE STATE OF NEVADA on Relation of its Department of Highways, Appellant, v. RUTH

GARFINKLE OLSEN and WILLIAM HADLEY, Respondents.

No. 4172

April 18, 1960 351 P.2d 186

Appeal from judgment of Second Judicial District Court, Washoe County; A. J. Maestretti,


Proceeding involving assessment of damages in favor of property owner and leasehold

owner resulting from taking of parcel of land. The trial court rendered judgments and State on

relation of Department of Highways appealed. The Supreme Court, Badt, J., held that where

there was nothing in complaint or in either of maps attached thereto to indicate that an access

road would be constructed, testimony as to benefit to be derived from construction of such

road was inadmissible as too remote, but that lessee was not entitled to recover cost of wiring,

which he had installed but which he had no right to remove under the lease, and lessee was

not entitled to allowance for full cost of gas pump and tanks, which he had right to remove,

but was entitled only to depreciated value thereof.

Judgment in favor of respondent Olsen affirmed. Judgment in favor of respondent

Hadley modify.


Attorneys General, for Appellant.

Ernest S. Brown, of Reno, for Respondent Ruth Garfinkle Olsen.

William L. Hammersmith, of Reno, for Respondent William Hadley.

1. Evidence. Where owner had held land to be taken for ten years, had owned other business properties in city, had

leased the same, �� ,��


had been aware of values of her own and surrounding properties and had compared recent sales of nearby

lands, owner was a competent witness to testify as to value of property taken. NRS 37.110.

2. Eminent Domain. In proceeding involving assessment of damages resulting from taking wherein condemnor contended

that total value of property taken was $31,000 and condemnees contended that value of such property was

$72,000, evidence sustained finding that value of property taken was in excess of $43,000. NRS 37.110.

3. Eminent Domain. Trial court's failure or refusal to make findings of benefits to owner of property taken was equivalent to

finding that there were no benefits to property owner resulting to remaining property after taking of portion

thereof. NRS 37.110.

4. Eminent Domain. Trial court's failure or refusal to find benefits inuring to remaining property after taking of portion

thereof, followed by conclusions and judgment in which no benefits were allowed, implied a finding that

there were no benefits. NRS 37.110.

5. Eminent Domain; Evidence. In proceeding involving assessment of damages resulting from taking of land, owner's testimony that

rental value of remaining land would be reduced, that property remaining had been zoned for business

commercial, that she did not know what it could be zoned for after construction of proposed highway and

that severance damage was result of loss of value of remainder of property, was competent, relevant, and

material. NRS 37.110.

6. Eminent Domain. Award of $5,000 severance damages to owner of property, upon which there was lease, for loss of

rental on basis that tenants would not care to remain after new road was put in and that owner had not

leased type of land remaining after condemnation was not excessive. NRS 37.110.

7. Eminent Domain. In proceeding involving assessment of damages resulting from taking of land, wherein there was

nothing in complaint or maps attached thereto showing a proposed construction of access road in front of

property part of which was taken, testimony as to benefits which would accrue to portion of property not

sought to be condemned by construction of such access road was inadmissible as too remote. NRS

37.110, subd. 4.

8. Eminent Domain. Where, under terms of lease, wiring installed by lessee to meet standards of city code inured to benefit

of lessor, and lessee had no right to remove the wiring, lessee was not entitled to recover cost of installation

of wiring when leasehold was condemned. NRS 37.110.

9. Eminent Domain. Where lessee under lease had right to remove gas pump ��, ��


and tanks as business fixtures, lessee was entitled to compensation when land was condemned but lessee

was not entitled to their full cost, but only their depreciated value. NRS 37.110.

10. Eminent Domain. Lessee, whose leasehold was condemned was entitled to difference between his monthly rental reserved

in lease and the monthly present value of lease. NRS 37.110.

OPINION


This is an appeal from the judgment of the trial court assessing damages in favor of

respondent Olsen resulting from the taking of a parcel of land owned by her, and in favor of

respondent Hadley for the taking of an easement owned by him over a portion of the parcel

taken from Mrs. Olsen. The easement referred to was used for access to a larger parcel which

Hadley leased from Olsen. Thus the question of the value of the taken access became the

question or issue of the reduction of the value of the Hadley lease. 1 Condemnation was

sought of a parcel of land fronting on the south 128.35 feet on the north line of East Second

Street some 300 feet west of Kietzke Lane, 2 and with a depth (subject to some variation) of

150 feet. The parcel thus sought to be condemned comprised .452 of an acre, and is a portion

of a larger parcel owned by Olsen, adjacent to it on the north. Condemnation was sought, in

addition to the .452 of an acre owned by Olsen, of the Hadley easement above referred to.

Such easement is over a parcel of land 15 feet wide, traversing part of the Olsen property

from the northerly line of East Second Street, in a northerly direction, to the larger parcel

leased by Olsen to Hadley, and furnishing access to such leased parcel. Such easement was

granted to Hadley in connection with and by reason of the Olsen-Hadley lease. Such Hadley

lease was ��1%<��.1�#�

____________________

1

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

75 Nev. 200, 337 P.2d 274.

2

Original defendants included Leslie C. Stencil, lessee of “Ace Metal Fabricators,” situate on the property,

and Pete Martin, and Frank Capriotti. They are not involved in any of the issues herein considered and are not

parties to this appeal.


for a 10-year period at a monthly rental of $125. At the time of the taking of possession by

appellant under an order of immediate occupancy in this proceeding, the unexpired term of

said lease was four years, four and one-half months. The leased property included a large

building, to which was attached a smaller frame building. The intended use of the leased

property was the storage and sale of gasoline and oil, and more particularly as a truck service

station.

The trial court found: “That the evidence presented at the trial sustains the market value of

the property of Ruth Garfinkle Olsen taken is the sum of $43,384.50. That by reason of the

taking of the front portion of all of the property owned by Ruth Garfinkle Olsen the court

finds that the evidence sustains severance damage to the remaining parcel in the sum of

$5,000.” The court further found that Hadley was the owner of a subsisting lease with a

remaining term of four years, four and one-half months; that he had leased the premises for

the specific purpose of using the same for a truck service station; that the easement granted to

him for access had been totally destroyed by the condemnation proceedings, and that the

original purpose of his lease of the premises had likewise been destroyed; that the market

value of his lease for the remaining term was $14,400; that he had installed wiring for the

purpose of his lease in the sum of $300, and a gas pump and tanks of the value of $1,200; that

his leasehold had been entirely destroyed for the purpose for which it was originally intended.

The judgment awarded him damages in the sum of $15,900 in accordance with the foregoing

figures.

Appellant states: “The only issue pertinent to this appeal presented at the trial was the

question of damages to the respondents resulting from the taking of the parcel owned by Mrs.

Olsen and the easement appurtenant to the Hadley leasehold.” Respondents pinpoint the issue

a little more finely as follows: “This being true, then the question of this appeal might be

stated, was there substantial evidence in the record to support the judgment and damages, and

was the judgment right in law?” (��:�� ;��


The following table (round figures being used) will show the difference in the values

placed on the respective parcels by the parties to this appeal, and by the court.

Per Per Per

Aplt. Respts. Court

Value of entire Olsen property including that

taken by state and that leased to Hadley,

2 1/3 A...........................................$89,000

$93,000

Value of front footage taken......................154

250$250

Total value of the property taken including

improvements..................................31,000

72,000..............................................43,400

Severance damage........................................nil

10,000......................................................5,000

Benefit to larger parcel not taken....More than

sufficient

to offset

damage

nil nil

Damage to Hadley's leasehold interest,

including improvements and market

value of easement taken....................9,100

15,900..............................................15,900

As to the front footage valuation, Mrs. Olsen testified to a recent sale of adjoining property

for $70,000. Mr. Chambers, the state's expert witness, confirmed and identified this sale as

sale of a parcel immediately to the east of Mrs. Olsen's parcel, at approximately $280 a front

foot, but which had a depth of over 500 feet, as against a depth varying from 150 feet to 180

feet on Mrs. Olsen's property.

[Headnote 1]

The only witnesses testifying as to values of the property taken were Mrs. Olsen on her

own behalf and Mr. Lawrence G. Chambers, chief appraiser for the state highway department,

on behalf of appellant. Mrs. Olsen had owned this property for ten years, owned other

business properties in Reno and leased the same, was ��,�� C��)��


aware of market values of her own and surrounding properties and had compared recent sales

of nearby lands. Mr. Chambers was a civil engineer and had made numerous investigations of

values for the state highway department. Both were competent witnesses. At the trial the

plaintiff questioned Mrs. Olsen's competency to testify, but she was undoubtedly a competent

witness. Vol. III Wigmore on Evidence, 3rd Ed., § 714; Spring Valley Waterworks v.

Drinkhouse, 92 Cal. 528, 28 P. 681.

[Headnote 2]

Prior to the making of the formal findings, the court filed a written opinion in which it

considered the testimony of both Mrs. Olsen, on the one hand, and Mr. Chambers on the

other, the qualifications of both witnesses, and the testimony given by them, respectively,

with regard to the several items of value. It would appear then that, as might well have been

expected, the evidence was in conflict and that the court had given this conflict its careful

consideration, had weighed the testimony and had rejected in part both the higher figures to

which Mrs. Olsen had testified and the lower figures to which Mr. Chambers had testified. It

cannot be said that there is not substantial evidence to support these findings of value, and in

the absence of reversible error on the part of the court, we shall not disturb the findings.

NRS 37.110 requires the court to ascertain and assess (1) the value of the property sought

to be condemned and the improvements; (2) if the property sought to be condemned

constitutes only a part of a large[r] parcel, the damages which will accrue to the portion not

sought to be condemned, by reason of the severance, and the construction of the improvement

in the manner proposed by the plaintiff; and (3) separately, how much the portion not sought

to be condemned, and each estate or interest therein, will be benefited, if at all, by the

construction of the improvement proposed by the plaintiff; “and if the benefit shall be equal

to the damages assessed, * * * the owner of the parcel shall be allowed no compensation

except the value of the portion taken; but if the benefit shall be less than the damages so

assessed, �� ,��'


the former shall be deducted from the latter, and the remainder shall be the only damages

allowed in addition to the value of the portion taken.”

(1) Appellant's first assignment of error is that the court's award was made without regard

for the construction of the improvement in the manner proposed by the state and without

separately ascertaining and assessing the benefits to the remaining property resulting from the

improvements proposed; and that this was a direct violation of the statutory provision quoted

above.

[Headnotes 3, 4]

As to the court's failure to make findings relative to the benefits inuring to the remaining

property, it is our construction of the findings that the court's failure or refusal to make a

finding of benefits was equivalent to a finding that there were no benefits, Peterson v.

Wiesner, 62 Nev. 184, 193, 146 P.2d 789. In any event, the court's failure or refusal to find

benefits, followed by the conclusions and judgment in which no benefits were allowed,

clearly implies a finding that there were no benefits. Dillon v. Dillon, 68 Nev. 151, 227 P.2d

783.

(2) Nor do we find support for the contention that the award of severance damages finds

no support in the evidence. It will be noted from the table that Mrs. Olsen claimed a

severance damage of $10,000 and that the court allowed on this item the sum of $5,000. It

will be recalled that the taking of the unleased property included the taking of the easement

running from East Second Street northerly across the unleased property for access to the

leased parcel. It was on the basis of the taking of this easement that Mrs. Olsen testified to the

severance damage of $10,000. (The question of the impact and effect upon this situation of

the proposed future frontage road abutting the east boundary of the leased parcel and the

access road from Second Street to the leased parcel is treated below.) She said: “It would be

$10,000 at least, because between the Capriotti, Martin and Hadley lease, I lose $10,000 in

the remainder of their leases, and they have informed me that it will hurt their business to a

great extent and they don't care to remain. * * *


The monthly rental revenue that I obtain from all of my property is $410 a month. * * * This

property is zoned for business, commercial, and it can be used for industrial or anything, and

when the frontage will be taken off, I don't know what it will be zoned for. It will be on a

back street. I don't know what the back streets are zoned for. And when I had given these

people leases, they were for facing Second Street, and all business was done from Second

Street. That changes their leases in this. And furthermore, I don't know what I could rent them

for.” When pressed on cross-examination to define severance damage, she answered: “By

hurting the remainder of the property, and the rest of the property will lose its value, the value

it has now, and the main thing is losing my income. And it was bought as one plot of land.

And the access in the rear of the land, you'd almost have to have a helicopter to get in and out

of it to do business. And I did not lease those people that type of land as it will remain in their

leases, it was written different. It will be guesswork what the value of the remaining land will

be. Nobody will know until the actual thing takes place, probably. Streets aren't developed

overnight. And on the rear of the land is a water pipeline that incloses me, and it's impossible

to get to the back of the land through the rear, and I don't know what the two acres could be

used for. I can't predict the future. I don't know what the land could be used for or the

buildings.”

[Headnotes 5, 6]

The upshot of the matter is that the leased property, heretofore served by access over the

easement from the main used thoroughfare of East Second Street, has now become rear

property. Continued access by the proposed access road running north from East Second

Street and also from the proposed frontage road along the easterly line of said property would

cure this difficulty if such access road and such frontage road were a part of “the construction

of the improvement proposed by the plaintiff” if thus expressed in the complaint or in the

maps attached to the complaint, or even, failing this, in the �� &�� '��


stipulation of counsel that such access was a part of “the construction of the improvement

proposed by the plaintiff,” provided such stipulation and such provision were carried forward

into the judgment. This however is not the case. 3 The taking of the unleased property,

carrying with it the 15-foot easement to the leased property entailed at the best a difficult

problem with reference to damages resulting to the latter. Mrs. Olsen's testimony as quoted

above was competent, relevant, and material. That damage resulted to the property not taken

by the state was found by the court. We cannot say that there was no basis for its finding that

this damage amounted to $5,000. It was not only apprised of the situation from the testimony

of the witnesses, the maps and the leases in evidence, but, accompanied by counsel, viewed

the premises. This court cannot substitute its judgment for that of the trial court as to the

amount of the damage.

(3) This brings us to the contention then that the state's proposed construction includes a

proposed future frontage road, along the easterly boundary of the leased parcel, which will

provide access thereto along such entire easterly frontage for a distance of some 325 feet, and

also by way of a 40-foot bladed roadway northerly from Second Street, thence at right angles

easterly to join the proposed frontage road.

[Headnote 7]

The condemnation complaint recites “that a map showing by description the particular

construction project involved is hereto attached marked Exhibit A and is hereby expressly

referred to and made a part hereof; that a map marked Exhibit B is hereto attached and is

hereby expressly referred to and made a part hereof showing in detail the project particularly

described herein as the same is involved in this action.” It further alleges that the project

particularly described is definitely located by the department of highways over, ��

____________________

2

Even so, respondent Hadley testified that the proposed access road from East Second Street would be

entirely unacceptable, as trucks and trailers would have to make three turns along such proposed access road

(available to the general public) to arrive at the property, as contrasted with the single turn into his former

individually owned easement.


across, and through the described property. Nothing in the complaint and no indication in

either of the maps attached to and made a part of the complaint shows a proposed

construction of the “proposed future frontage road,” or the proposed “access road.” It was

only during the course of the trial that the state's expert witness produced a transparent

tracing, referred to as “an overlay,” which was superimposed upon the state's exhibit picturing

the property. The legal effect of this is disposed of infra.

When appellant sought to examine its expert witness as to the benefits that would accrue

to the portion of the property not sought to be condemned “by the construction of the

improvement proposed by the plaintiff,” the court sustained respondent's objection that the

statutory justification for considering such benefits meant “improvements that are to be

constructed under the project for which the land is taken, and not something that may occur in

the future.” The court held the testimony inadmissible as being too remote. As noted, neither

the frontage road nor the access road were a part of “the construction of the improvement

proposed by the plaintiff” (NRS 37.110 sub. 4) either as described in the complaint or

delineated on either of the maps attached to and made a part of the complaint. Appellant

however relies on People v. Schultz, 123 Cal.App.2d 925, 268 P.2d 117, as approving the

state's stipulation and offer by its counsel in open court that access to the property will always

be provided in connection with the proposed construction and that the judgment might

include such order. We need not discuss People v. Schultz at any greater length than to note

that the judgment in that case actually contained a provision protecting the owner's right of

access. No such provision is contained in the present judgment and respondent is not afforded

the type of protection given by the judgment in the Schultz case. The judgment involved in

this appeal was entered November 5, 1958, a year and five months ago, and any attempt to

modify the same at this late date would encounter serious obstacles. The opinion in the

Schultz case dealt at length with the question whether �� $�� $�� 0 � ��


the protective provision in the Schultz judgment was within the power of the court and

whether the original resolutions of the highway board authorized and justified counsel's

stipulation that such provision might be included. These matters are beyond our consideration

here, because the protective provision was not included in the court's judgment. 4 Appellant

asserts that the effect of such omission may nonetheless be cured by an inverse condemnation

proceeding against the state. This however might be an expensive, uncertain, and hazardous

substitute for constitutional and statutory rights vested in all persons whose property is taken

by right of eminent domain.

[Headnote 8]

(4) Appellant attacks the award of $15,900 for the Hadley leasehold on the ground that the

court erroneously included $300 to compensate for Hadley's installation of certain wiring and

$1,200 for the installation of a gas pump and tanks, and on the ground that Hadley's

compensation for his leasehold interest was limited to the difference between the fair rental

value for the unexpired term and the rent reserved in the lease—a maximum allowance of

$9,100 in place of the $14,400 allowed.

(a) The Olsen-Hadley lease was in evidence. Under its terms the wiring (installed by

Hadley to meet the standards of the city code as required by the lease) inured to the benefit of

the lessor. Hadley had no right to remove the wiring. Under such situation the $300 allowed

for this item was improper. In re Triborough *��)��D,��2"��D��"��2�

____________________

4

In the state's argument to the trial court it referred to its transparent tracing on the “overlay map”

superimposed upon the map showing the Olsen land, including the land leased to Hadley. Referring to the map

with the overlay upon it, the state argued: “[This] indicates that the condemnation of the property sought by the

state would without construction of the proposed improvements eliminate all access to East Second Street from

the rear portion of the defendant's property. That is the map without the overlay. If we were to take this property

certainly the rest of the property * * * belonging to Mrs. Olsen [presently subject to the lease to her lessees]

would be cut off of access to Second Street, hence confiscated, and the damages would probably equal the total

amount—the total market value of the property.”


Bridge, City of New York, 293 N.Y.S. 223, 229. See also Anno. 3 A.L.R.2d 304.

[Headnote 9]

(b) The allowance of the $1,200 for the gas pump and tanks occupies a different status.

Hadley had the right to remove them as business fixtures, and was entitled to compensation.

In re Willcox, 165 App.Div. 197, 151 N.Y.S. 141; In re Triborough Bridge, supra. See

Volume I Orgel, Valuation under Eminent Domain, p. 465, § 110. He was however not

entitled to allowance of their full cost, but only their depreciated value. This was not shown.

When asked on cross-examination, “How much do you think they are worth?” he answered,

“Well that's something that would take a little time to—normal depreciation.” These

improvements were installed in 1952, and the allowance of the full installation cost without

deducting depreciation was error.

[Headnote 10]

(c) In addition to recovery of the cost of the wiring and the gas pump and tanks, Hadley

testified that his “total loss was the difference between his $125 monthly rental reserved in

the lease and the $300 monthly present value.” He stated definitely that this was his total loss.

Such indeed is the well-recognized rule. Pierson v. H. R. Leonard Furniture Co., 268 Mich.

507, 256 N.W. 529, 98 A.L.R. 244, Vol. II Nichols on Eminent Domain, 2nd Ed., p. 42, §

5.23[3]; Vol. I Orgel, Valuation under Eminent Domain, p. 521, § 121; Anno. 3 A.L.R.2d

292. This formula justifies an allowance of $9,100 for this item and no more.

Respondent Hadley justifies the larger sum by asserting that he may be required to pay the

reserved $125 monthly rental to the end of the term. The testimony of his lessor, Mrs. Olsen,

quoted supra, indicates that this is not so. The court's allowance to her of $5,000 severance

damage was based upon that testimony in which she stated that she would lose the rental from

the Hadley and other leases, and that the tenants do not care to remain; that she had given

these lessees leases facing ��-�� -��


on Second Street; that the condemnation had in this respect changed their leases; that she had

not leased to the lessees the type of land remaining after the condemnation.

Hadley's counsel, in arguing the case to the trial court, argued that, including the claimed

$300 and the claimed $1,200, “the total damage which he has suffered would be in the

amount of $10,600.” He then argued further that if Hadley should be required to continue his

monthly rental payments of $125 till the end of his term, this would increase his damage to

$15,900.

The judgment in favor of respondent Olsen is affirmed, with her costs in this court.

The judgment in favor of respondent Hadley is modified by deducting therefrom the item

of $300 and by deducting therefrom the further sum of $5,300 (the difference between

$14,400 and $9,100). The case is remanded to the district court for a limited new trial to

determine the depreciated value of the pump and tanks; provided, however, that if the parties

within 15 days from date of receipt of a copy of this opinion, shall file a stipulation herein

stipulating to the depreciated value of the said pump and tanks, then the judgment as to this

item may stand as modified by substituting in place of the $1,200 allowed, the amount of

such stipulated depreciated value.

No costs are allowed on the appeal from the Hadley judgment.


____________

��76 Nev. 189, 189 (1960) United Association Journeymen v. Stine��

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING

AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL

UNION 525, LAS VEGAS, NEVADA, Appellant, v. WILLIAM K. STINE, Doing Business

as A-1 PLUMBING SUPPLY COMPANY, Respondent.

No. 4241

April 20, 1960 351 P.2d 965

Appeal from judgment in favor of respondent on jury verdict, Eighth Judicial District

Court, Clark County; David Zenoff, Judge, Department No. 1.

Employer's action against union for alleged breach of labor agreement in calling work

stoppage without resorting to provisions of agreement, assertedly thereby destroying

employer's business. The trial court rendered judgment for plaintiff and defendant appealed.

The Supreme Court, Badt, J., held, inter alia, that provision in labor agreement requiring

submission of future controversies to arbitration was enforcible and employer was entitled to

maintain action against union for injuries sustained in consequence of union's violation

thereof in calling strike without first resorting to remedies under arbitration provisions of

agreement, and that evidence sustained damages awarded.

Affirmed.

(Petition for rehearing denied June 15, 1960.)

George Rudiak, of Las Vegas, for Appellant.

Morton Galane, of Las Vegas, and Harold A. Slane, of Los Angeles, for Respondent.

1. Labor Relations. If action of joint committee provided for in labor agreement for settlement of controversies became

necessary with respect to union's charges against an employer and if such committee had not been

activated, burden was upon union to take some steps to activate it and fact that committee was not

functioning would not entitle union to call strike without first presenting its grievance in accordance with

procedures provided in agreement.


2. Labor Relations. Both parties to labor agreement could waive arbitration covenants.

3. Labor Relations. Parties' failure to appoint members to joint committee or arbitration board provided for in labor

agreement would not constitute a waiver of arbitration covenants.

4. Labor Relations. Labor agreement providing that if there was disagreement with respect to extension of agreement or any

other contingency, dispute would be submitted to arbitration board and providing that decision by majority

of members of board would be accepted as decision by board and binding on parties implied that parties

would refrain from enforcing grievances without first resorting to arbitration and required union to refrain

from striking when it had not pursued such remedies under contract though agreement did not specifically

state that no strike could be called before arbitration procedures had been followed.

5. Labor Relations. Where union called strike without affording employer opportunity to request arbitration provided for in

labor agreement, union was required to bear sole responsibility for its breach and to assume consequences

thereof and was precluded from successfully contending that employer was, despite union's conduct, bound

to arbitration covenants before seeking damages resulting from strike.

6. Labor Relations. Where employer's asserted breaches of labor agreement in permitting employee to cut pipe without

journeyman supervision and in employing apprentices in a ratio to journeymen which exceeded the

permitted ratio were required, by labor agreement, to be submitted to grievance and arbitration procedures,

but no such resort was had and employer's other asserted breaches of agreement were trivial, employer's

breaches or asserted breaches of agreement could not preclude it from maintaining action against union for

its breach of agreement in calling work stoppage without resorting to arbitration provisions of agreement.

7. Contracts. The statute providing that the common law of England, so far as not repugnant to or in conflict with

constitution of United States or constitution or laws of state, shall be rule of decision in all courts of state

did not compel Supreme Court to apply common law holding unenforcible agreements to submit any and

all future disputes to arbitration. NRS 1.030.

8. Labor Relations. Provision in labor agreement requiring submission of future controversies to arbitration was enforcible

and employer was entitled to maintain action against union for injuries sustained in consequence of union's

violation thereof in calling strike without first resorting to remedies under arbitration provisions of

agreement.


9. Trial. In employer's action against union for breach of labor agreement in calling work stoppage, assertedly

destroying employer's business, trial court properly allowed in evidence testimony of reports made to

plaintiff by other plumbers and general contractors as to effect of strike on his ability to obtain journeymen

employees and to obtain subcontracts from general contractors when it limited effect of such testimony to

indicating why plaintiff pursued course which he did and stated that testimony could not be received for

truth of what had been told plaintiff.

10. Evidence. In employer's action against union for breach of labor agreement in calling work stoppage, assertedly

destroying employer's business, plaintiff's testimony that his accountant had stated to him that value of

good will of his business was around a stated figure was not incompetent as hearsay but was admissible in

that opinion was formed and was more or less dependent upon figure arrived at by accountant from

plaintiff's books and records and communicated by accountant to him.

11. Labor Relations. In employer's action against union for alleged breach of labor agreement assertedly destroying employer's

business, wherein union's counsel, in cross-examining plaintiff secured admission that by agreement

between employer and a key employee, key employee was made beneficiary on plaintiff's life policy, the

proceeds of which were to go to buy business from estate, from which jury might infer that good will was

due to him rather than to plaintiff, as entire contract indicated that he could resign whenever he desired and

made no provision that his estate should in any way profit from such insurance, it was not error for court to

admit in evidence purchase and sale agreement indicating that purchase price would be a stated figure

including the good will and equipment but excluding the land and building.

12. Labor Relations. In employer's action for alleged breach of labor agreement in calling work stoppage without resorting to

arbitration provisions, assertedly destroying employer's business which he subsequently terminated, award

of $50,000 damages, even if almost all of such amount was allocated to loss of good will of business, was

sustained by the evidence.

13. Appeal and Error. In action for breach of labor agreement, question of whether plaintiff-employer had taken steps to

mitigate his damages was for jury and beyond scope of appellate review.

14. Labor Relations. In action for breach of labor agreement, questions of whether closing down of plaintiff's business was

direct, natural and foreseeable result of seven-day strike was properly for jury.

15. Labor Relations. In action for breach of labor agreement, question of whether union's discipline of certain of its members

who were ��0 �� ,��


in plaintiff's employ had prompted diffidence of other union members to work for plaintiff was relevant to

issue of damages.

16. Trial. Rejection of special interrogatories was within discretion of the trial court.

OPINION


Respondent Stine was the successful plaintiff below. The appellant union was defendant.

They are referred to as they appeared in the district court or by their respective abbreviated

names. Plaintiff sued for damages for defendant's alleged breach of a labor agreement,

charging that the defendant union called a work stoppage, destroyed plaintiff's business by

depriving him of the assurance that journeymen plumbers would be available to work for

him, that his contract jobs were brought to a halt, and that the strike was in violation of

provisions of the labor agreement setting forth certain grievance and arbitration machinery.

Plaintiff also sought a temporary restraining order and a preliminary and permanent

injunction against the strike. Judgment was entered against defendant upon the jury's verdict

for $50,000 damages, and the court thereafter denied defendant's motion for judgment

notwithstanding the verdict or, in the alternative, for a new trial. Defendant has appealed from

the judgment and from these orders.

Allied or associated matters in connection with this situation have heretofore been before

this court. Stine and his employee, James D. Ringelberg, had appealed from the trial court's

order denying them an injunction pendente lite against the union enjoining the strike. They

sought from this court an injunction pending appeal. This we denied. Ringelberg v. United

Association of Journeymen, 72 Nev. 156, 297 P.2d 1079. Thereafter the union moved this

court for an order assessing damages upon the injunction bond, which Ringelberg and Stine

resisted, contending that the proper course of the union was an independent action upon the

bond. The �� )8��3#:�;�� 0 ��


motion that this court assess damages on the injunction bond was based on NRCP Rule 65(c)

to the general effect that the surety's liability might be enforced on motion without the

necessity of an independent action. We concluded however that the rule did not apply to this

court and denied the motion. Ringelberg v. United Association of Journeymen, 73 Nev. 185,

314 P.2d 380. Thereafter counsel for both parties advised the court that the appeal from the

court's order denying injunction was moot, and on August 19, 1957 we dismissed that appeal.

This however left pending in the district court the suit for damages resulting in the judgment

and orders from which the present appeal is taken.

Plaintiff, doing business as A-1 Plumbing Supply Company, had been engaged in that

business for a number of years. Some 60 percent of that business resulted from plumbing

contracts and some 40 percent from the retail sale of prefabricated plumbing fixtures. It

enjoyed a gradual growth to a peak of some $305,000 annual gross sales in 1954, and

resulting in a net profit of $31,500 in 1955, with proportionate returns until the strike of April

13, 1956.

About three weeks before the strike of April 13, 1956, according to Stine's testimony, in

response to a letter from the union, he appeared before its executive board and Frank Long,

its business agent. The witness testified: “There was quite a lengthy discussion as to the

tactics or the advertising program that I had put on to operate my business. There was a great

deal of criticism on the part of the executive board. * * * Well, I'd been advised at that time

by the executive board that if my conduct of business was not changed they would close my

shop.” This was further explained by Long concerning that meeting: “We were disturbed in

the plumbing industry by materials being made and sold to customers. Q. Prefabricated

fixtures? A. Now you are talking. Q. Your executive board was concerned with the fact A-1

Plumbing was selling prefabricated fixtures to retail customers? A. We were concerned to a

certain extent with any hardware store selling prefabricated materials.” It was pursuant to that

concern that Stine �� 0 ��


was requested to appear before the union's executive board.

Mickey Kern, called by the defendant, a member of the plumbers' union and an executive

board member and vice president and later chairman of the board, was present at the meeting

of March 21, 1956, and testified that in the Stine matter: “Mr. Stine was advertising plumbing

trees for sale. The members of the board felt that this was causing unemployment among the

plumbing trade and also it was detrimental to the plumbing industry, so it was discussed and

Mr. Stine was asked if he would refrain from this, but Mr. Stine he thought it was actually

bringing more work to the plumbing industry rather than harming it.” He denied that any

member of the board stated that the union would close Stine's shop unless he changed his

method of conducting business. It was conceded that the sale of prefabricated plumbing

material and the advertising of such material for sale was not a breach of the plumbing

contract hereinafter discussed at length.

On April 11, 1956 it was reported to the union that Ringelberg was cutting pipe contrary to

the contract. Ringelberg was not a journeyman plumber and was accordingly not permitted to

cut pipe. He was employed by Stine as a sales clerk and shop clerk and 75 percent of his time

was occupied in this capacity. The union however had given Stine permission to have

Ringelberg cut pipe for over-the-counter sales. This service occupied 25 percent of his time.

On the following day, April 12, Long reported this as a breach of the contract and a strike

was called for the morning of April 13. That morning no plumbers appeared for work. Stine

phoned McKee, managing director of the Federated Employers of Nevada to see what could

be done about it. McKee unsuccessfully tried to reach Long by telephone and the latter called

back later in the day. A meeting was arranged for 1:30 p.m. that day between McKee and

Long. What was said at that meeting is in dispute, but the jury had the right to conclude that

the meeting concerned other matters, that �� ,��


Stine was not present, and that the matter of the strike was not discussed. The first day of the

strike, April 13, was a Friday. On the following Monday, April 16, Stine commenced his

action for an injunction against the strike and for damages. On April 20, a temporary

restraining order was issued and bond thereon filed April 23. The strike lasted seven days. No

pickets were posted, there was no violence, and Stine was not placed on “we do not

patronize” lists. The case was fully tried on the motion for temporary injunction, which was

denied May 3. The strike however was not renewed. On June 8 this court denied an injunction

pending appeal.

On September 29, 1956 Stine closed his shop.

In May or June, 1956 Ringelberg left Stine's employment to take employment with the

City of Las Vegas, and August 8, 1956 he withdrew as plaintiff in the action.

Defendant's answer denied that the work stoppage violated the obligations of its contract

and justified the strike on the asserted ground of plaintiff's breach by his failure to pay health

and welfare contributions; by working Ringelberg, not a qualified journeyman, on

pipe-cutting machines for contract jobs without journeyman supervision; by employing

Ringelberg as a second apprentice at a time plaintiff was entitled to employ only one

apprentice and by working Ringelberg and other employees on Saturday without paying the

overtime rate.

Defendant first lists a number of separate legal issues revolving about the grievance and

arbitration machinery set up in the contract between the employers' association and the union;

whether a “no-strike” clause may be implied from the contract provisions; whether there has

been a waiver by the parties of the provisions concerning arbitration because those parties

have not gone about the business of setting up arbitration machinery; whether the union, in

the belief that the employer had violated certain covenants of the agreement, may strike

without resorting to the grievance and arbitration machinery; whether despite the calling of a

strike by �� ,��

� �� ,�-�� ,�� ,�� 0 �� -�� 0 ��


the union without resorting to agreed arbitration machinery the employer must nonetheless

himself resort to such arbitration machinery before seeking damages resulting from the strike;

whether the employer thus seeking damages resulting from the strike, thus initiated without

the union's attempt to arbitrate, must limit his damages to a time not exceeding the point in

which he in turn might have sought arbitration; whether the employer has not rendered the

union's repudiation of the agreement nonactionable because he thereafter accepted benefits

from the union in furnishing him laborers.

We may for the most part treat these matters together.

The agreement in question is entitled “Labor Agreement,” and the parties to the same are

Master Plumbers' Assn. of Clark County, Nevada, on the one hand, and the appellant union

on the other. The agreement provides that the Master Plumbers' Assn. and the union shall be

the bargaining agency for all agreements pertaining to the plumbing, piping, and heating

industry in the territory, including Clark County. Stine, like many others similarly situated,

had executed a power of attorney authorizing the Master Plumbers' Assn. to act for him and

to enter into a collective bargaining agreement with the union, which would be binding upon

Stine.

The agreement sets up a permanent joint committee to consist of two representatives from

the association and two from the union, with provision for alternates, the removal of the

members and alternates, requirement for credentials and filling of vacancies. It provides for

organization of the joint committee by election of a chairman and secretary and the manner of

voting, and further: “The Committee shall be vested with power to adjust disputes and

grievances that may arise, and shall be empowered to interpret and make such rules and

regulations as may be necessary to give force and effect to the intent, purpose and meaning of

this Agreement. They shall be empowered to have access to all records pertaining to any case

where violations of this Agreement are involved. The Committee shall have the power to

require all parties to testify under oath before a ��8��'


Notary Public.” The following provision has particular significance: “That for and in

consideration of the harmonious relations between the parties referred to and the public, and

the maintenance and stability of the conditions of employment and other mutually beneficial

relations, and for the purpose of prevention of strikes and lockouts by facilitating just and

peaceful adjustments of disputes and grievances that may arise from time to time for the

purpose of protecting and safeguarding the health and safety of the parties concerned, the

parties hereto have agreed that the understanding hereinafter set forth shall be binding on all

members of the parties hereto individually and collectively.” (Emphasis supplied.)

The agreement reads in part: “It is hereby agreed that the [Master Plumbers'] Association

and the union shall be the bargaining agency for all agreements pertaining to * * * the

Plumbing * * * Industry.”

It further provides that an employer in the plumbing industry is any person who contracts

and supplies labor or material. He is required to employ regularly at least one journeyman

plumber. A journeyman is defined as a member in good standing of the local union.

The members of the union may work only for employers having a plumbing contract or

license and a master plumbing license and carrying Workmen's Compensation Insurance and

complying with all of the rules and regulations of the Nevada Industrial Commission. Union

members may work only for employers who are parties to the collective bargaining

agreement.

Under the title “Board of Arbitration,” provision is made for the appointment of two

representatives of the union and two representatives of the association as the “Arbitration

Board.” “When the signatories hereto can not agree voluntarily in extending an agreement as

to hours, wages, working conditions, and/or any other contingency that may arise, the dispute

may be submitted to the Arbitration Board.”

“In the event of a dispute, both parties to this Agreement will attempt to settle it by a

meeting between the 9�� 8��6��8��)��


Union Representative and a Representative of the Plumbing, Heating and Piping Contractors.

If no agreement can be reached, the dispute will be referred to the hereinbefore mentioned

Joint Committee. If the Committee cannot reach an agreement, it shall be referred to the

Board of Arbitration for decision.” (Emphasis supplied.)

The arbitration board is required to hear and decide appeals from the joint committee.

When the members of the arbitration board cannot agree, they are authorized to select a fifth

neutral party. “A decision by a majority of the members of the Arbitration Board shall be

accepted as the decision of the said board and shall be binding upon the parties [to the

disputes and grievances mentioned in the preamble].”

As noted above, the union, on April 12, called a strike for eight o'clock on the morning of

April 13 without presenting its grievance or resorting to any of the contract provisions for

submitting the same to arbitration—whether, first, at a meeting between the union

representative and a representative of the contractors, or secondly, in failure of reaching an

agreement, through the joint committee, or thirdly, in failure of a joint committee agreement,

by reference to the board of arbitration.

[Headnote 1]

Appellant first asserts that there was no compulsion upon it to defer a strike without first

presenting its grievance and resorting to the arbitration clauses, for the reason that the

machinery provided in the agreement for such purpose had not been set up. It should be first

noted that Mr. McKee, managing director of the Federated Employers, was Stine's

representative throughout the entire period, and Mr. Long, as the business agent, was the

representative of the union. The evidence shows that in actual practice any complaint on the

part of the association on the one hand or any grievance by the union on the other would be

submitted to the cooperation of these two for settlement of the dispute. There is disagreement

as to whether the joint committee had actually been set up. Yet it would appear that such a

joint ��+��12#3�� C��>��0 ��


committee did function in June 1956 in the matter of a grievance not related to the present

dispute. Mr. Long, the union's business agent, served as a member of the joint committee in

that matter. Minutes in evidence indicated that a joint committee had functioned, though it

does not appear that a board of arbitration had been selected. The union accordingly justifies

the strike without first resorting to arbitration by the fact that neither the joint committee nor

the arbitration board was functioning at the time. But the grievance was that of the union. The

contract provisions are clear. The union did not, before the strike, submit the grievance to

representatives of the two parties. If it had, and if action of the joint committee became

necessary, and if that committee had not been activated, the burden was on the union to take

some steps to activate it. The same is true if it became necessary for the arbitration board to

act. To hold otherwise would deny recognition of the expressed purpose of the arbitration

covenants—to preserve “harmonious relations between the parties * * * and for the purpose

of prevention of strikes and lockouts by facilitating the just and peaceful adjustments of

disputes and grievances that may arise from time to time.” See Aircraft Lodge 703, Etc. v.

Curtiss-Wright Corp., 169 F.Supp. 837, 841; Structural Steel and Ornamental Iron Ass'n. v.

Shopmens Local Union, 172 F.Supp. 354, 360; Cuneo Press, Inc. v. Kokomo Paper Handlers'

Union, 7 Cir., 235 F.2d 108.

[Headnotes 2, 3]

Appellant further contends that because both parties failed to appoint members of either

the joint committee or the arbitration board, the arbitration covenants were waived by both

parties. That the parties could waive these provisions is of course true. But the assertion that

the recited conduct must be construed as a waiver fails to meet the rule laid down by this

court that “the conduct should speak the intention clearly.” Reno Realty and Investment Co.

v. Hornstein, 72 Nev. 219, 301 P.2d 1051, 1054. The assignment that respondent waived the

arbitration provisions of the agreement is without merit.


[Headnote 4]

Appellant contends that the contract included no specific “no-strike” clause, and that,

conceding that a no-strike clause may be implied, no such implication arises from the present

contract. We find it impossible to agree with this contention. To hold that there is not a clear

implication that the respective parties will refrain from enforcing their grievances without

first resorting to arbitration would do violence to the many covenants of the agreement above

recited. In United Construction Workers v. Haislip Baking Co., 223 F.2d 872, 876, 877, the

United States Court of Appeals, Fourth Circuit, in approving an instruction to the jury by the

district judge, said: “It is argued that a strike could not constitute a breach of a contract which

did not contain a no strike clause; but we think it clear that the purpose of the contract was to

require the settlement of disputes and grievances by a procedure which would not cause the

disruption of business that would necessarily result from a strike and that a strike without

following such procedure was necessarily a breach.” W. L. Mead, Inc. v. International

Brotherhood of Teamsters, 126 F.Supp. 466.

[Headnote 5]

Despite these conclusions, the union insists that even if it was in violation of the

arbitration covenants by calling a strike without resorting to arbitration, Stine was nonetheless

likewise bound by those covenants and was in turn bound by his contract to resort to the

arbitration machinery before seeking damages resulting from the strike. This contention is

supported neither by logic nor authority. “ [T]he Union called the strike, without affording the

company any opportunity to request arbitration. The Union must bear the sole responsibility

for its breach and assume the consequences thereof.” Structural Steel and Ornamental Iron

Ass'n. v. Shopmens Local Union, 172 F.Supp. 354, 360. “When [the union] struck, the wrong

was done and the damage to plaintiff began. Then it was that plaintiff's right of action for

damages and injunctive relief to prevent ��'


further damage accrued.” Cuneo Press, Inc. v. Kokomo Paper Handlers' Union, 7 Cir., 235

F.2d 108, 111; Aircraft Lodge 703, Etc. v. Curtiss-Wright Corp., D.C., 169 F.Supp. 837, 841.

Appellant contends that respondent had first breached the contract and, having done so,

may not, under generally recognized principles of the law of contract, then maintain an action

for damages for the subsequent breach of the contract by appellant. In support of this

contention, appellant relies on general principles of contract law and upon general principles

of labor law to the end that a peaceful strike for a lawful objective (including the compelling

of performance by an employer of an agreement made for the benefit of his employees) is

now universally recognized. Despite the fact that this contention simply ignores the

effectiveness of the arbitration covenants (Shirley-Herman Co. v. International Hod Carriers,

Etc., 2 Cir., 182 F.2d 806, 810, 17 A.L.R.2d 609), we may note briefly the asserted breaches

of the contract by respondent.

It is first contended that the strike was justified because Stine was delinquent for three

monthly payments to the welfare fund. This we may dismiss as trivial. The union had a

number of times in the past accepted payments from Stine and others for several months'

delinquencies. This particular delinquency had not been called to Stine's attention. Nor need

we discuss the charge that Stine's employees had worked on Saturdays without receiving

overtime payment. Stine produced and was cross-examined at length with reference to

employees' individual time cards. None of these showed any case of failure to pay for

overtime. Long admitted that he had no proof of Stine's failure to pay overtime and that his

conclusion of Stine's failure to pay overtime arose from rumor. It does not appear that the

business agent or other representative of the union called any supposed failure to pay

overtime to Stine's attention prior to the strike or that any grievance growing out of such a

charge had ever been filed. The union's assertion of a breach by Stine because he had

permitted an employee to use his own truck on company business �� ,��


between shop and job was satisfactorily explained and may be likewise classified as trivial.

[Headnote 6]

Next is asserted Stine's breach of the contract by permitting his employee Ringelberg to

cut pipe on contract jobs without journeyman supervision. The evidence is in conflict on this

item. A further breach relied upon was the employment of Ringelberg as one apprentice while

Stine was employing an additional apprentice. The employment of two apprentices exceeded

the permitted ratio of apprentices to journeymen. This alleged breach is in turn predicated on

Ringelberg's cutting of pipe for contract jobs, which activity, as noted above, is in dispute.

These items were likewise breaches (if proved to be such) that required resort to the filing of

a grievance and to the utilization of arbitration. No such resort was had. The arbitration

covenants were ignored. This assignment presents no legal ground for reversal.

Appellant contends that the judgment for damages based upon the verdict of the jury must

be reversed because, as a matter of law, the plaintiff's pleading and proof failed to establish

any claim upon which relief can be granted. This contention is based upon the fact, which

may be conceded, that the verdict and judgment, consistent with the pleadings and the proofs,

are for damages growing out of defendant's breach of the contract—the work stoppage, the

strike, without resorting to the arbitration machinery set up and agreed to by the contract in

question. The union's brief says: “Clearly, then, plaintiff's claim is one for breach of contract,

or, possibly, for repudiation of the contract.” Conceding then that although a labor contract

does not contain an express “no-strike” clause, it has been held that the same may be implied

where the contract contains machinery for adjustment of disputes through the grievance

procedure terminating in arbitration (Lewis v. Benedict Coal Corporation, 6 Cir. (1958), 259,

F.2d. 346, and cases therein cited), the rationale of the rule, says the union, presupposes that

the arbitration machinery is valid and legally enforcible. It contends, however, that a no-strike

clause may be implied only in a jurisdiction ��$� � ��


which recognizes such agreement to submit any and all future disputes arising under the

agreement to arbitration. This is followed by the contention that Nevada has adopted no such

statute but has on the contrary adopted by statute the rule that “The common law of England,

so far as it is not repugnant to or in conflict with the Constitution and laws of the United

States, or the constitution and laws of this state, shall be the rule of decision in all the courts

of this state,” NRS 1.030; that under the common law of England agreements to submit any

and all future disputes to arbitration are unenforcible; that such is the rule in this country with

the exception of ten states and the United States which have enacted special arbitration

statutes; that Nevada is not one of such states; that the overwhelming weight of authority is to

the effect that the common-law rule must be followed. Appellant's contention relies for

support on the annotation contained in 135 A.L.R. 79, under the title “Validity of agreement

to submit all future questions to arbitration,” which supports the common-law rule by citation

of cases from the Supreme Court of the United States (but see Textile Workers Union of

America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 923, 1 L.Ed.2d 972) and the courts of

last resort of over half of the states of the union, as well as England and Canada. This is

indeed a formidable array of authorities. Yet they are not unanimous, and we are impelled by

reason and logic, by the fallacies inherent in the common-law doctrine, by reason of the

nature of the development of the common law itself and by reason of the inapplicability of the

common-law doctrine of unenforcibility of arbitration contracts in this state, as particularly

illustrated by the appeal now before us, to adopt the minority view.

[Headnote 7]

It should first be noted that we are not compelled by reason of the statutory adoption of the

English common law to apply it in this case. We have heretofore held in the most conclusive

language that, despite such statute, we may reject the common law in instances where it � ��


is not applicable to local conditions. Such was the case when we refused to adopt the

common-law doctrine of riparian rights. Jones v. Adams, 19 Nev. 78, 87, 6 P. 442, 3

Am.St.Rep. 788 (overruling Vansickle v. Haines, 7 Nev. 249); Walsh v. Wallace, 26 Nev.

299, 327, 67 P. 914; Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 P.317, 4 L.R.A. 60,

19 Am.St.Rep. 364. The last-mentioned case is cited and discussed by the Supreme Court of

Oregon in In re Hood River, 114 Ore. 112, 227 P. 1065, 1083. In like manner the Supreme

Court of Colorado in Crippen v. White, 28 Colo. 298, 64 P. 184, 186, said: “The law of

necessity rendered the common-law doctrine of riparian rights wholly inapplicable in this

jurisdiction, and, as has frequently been stated, required its abrogation; so that,

notwithstanding the declaration of the statute, it has never been recognized as controlling in

the matter of water rights.”

In People v. Appraisers, 33 New York 461, as quoted in Boquillas Land & Cattle Co. v.

Curtis, 11 Ariz. 128, 89 P. 504, 508, it was said: “It is contrary to the spirit of the common

law itself to apply a rule founded on a particular reason to a case when that reason utterly

fails.” And in the Hood River case, supra, the court said: “The very essence of the common

law is flexibility and adaptability * * *. It finds widely different expression in different

jurisdictions. If the common law should become so crystallized that its expression must take

on the same form wherever the common-law system prevails, irrespective of physical, social,

or other conditions peculiar to the locality, it would cease to be the common law of history,

and would be an inelastic and arbitrary code. It is one of the established principles of the

common law, which has been carried along with its growth, that precedents must yield to the

reason of different or modified conditions.” Id. 227 P. 1086, 1087.

The two main reasons assigned for holding that covenants for arbitration of all future

disputes are unenforcible are that such covenants are contrary to public policy and that they

oust the courts of jurisdiction. More logically expressed, this is but one reason—that such

covenants are contrary to public policy because they oust the courts of jurisdiction.


The writer of the annotation in 135 A.L.R. at page 91, comments: “As it now stands, the

case law in regard to the validity of general arbitration clauses is confused in statement and

theory, poorly reasoned, arbitrary, and not well designed to accomplish a useful purpose.”

The comment is well supported. Note the statement in McCullough v. Clinch-Mitchell Const.

Co. (8 Cir. 1934), 71 F.2d 17, 20 (certiorari denied 293 U.S. 582, 55 S.Ct. 96, 79 L.Ed. 678):

“It can hardly be said that the decisions as to the validity of provisions in contracts for

arbitration of disputes between the parties thereto are in a very satisfactory condition.” With

reference to the support of the so-called common-law rule on the ground of public policy, it

was said in Mogul S.S. Co. v. McGregor, G. & Co. AC (Eng.) 25-HL: “But it has been well

said that ‘public policy is an unruly horse, and dangerous to ride'; and that ‘judges are more to

be trusted as interpreters of the law than as expounders of what is called public policy.'”

In some jurisdictions the common-law rule is apparently justified as a means of preventing

the arbitration of questions of law. However the rule is not so limited, but operates against

stipulations to arbitrate future disputed questions where all such questions, including those of

fact and law without exception, are to be arbitrated. And it is indicated in other cases that if

the stipulation does not embrace all future disputed questions, whether of law or fact, there is

no clear rule against such a covenant. Some of the cases upheld such covenants which,

though broad in themselves, did not include all future questions.

The second reason for the rule, that compulsory arbitration is an ouster of the jurisdiction

of the courts, does not fare much better in reason. In Chippewa Lumber Co. v. Phenix Ins.

Co., 80 Mich. 116, 44 N.W. 1055, 1056, the court notes: “Any person may violate the most

solemn contract he has made, but he thereby becomes responsible to the injured party for

such violation.”

We are disposed to quote with approval the A.L.R. annotator's further comment: “Since

there is nothing immoral, or detrimental to the public, in stipulations to arbitrate any and all

disputes that may arise between ��


the parties to a private contract, it seems that the most that can be said in support of the rule

against such stipulations is that they are, in general, unwise. But unwisdom is surely a strange

ground for the invalidation of contracts.” The reported case which is followed by the

annotation to which such extensive reference has been made is Park Constr. Co. v.

Independent School Dist. No. 32, 209 Minn. 182, 296 N.W. 475, 476, 135 A.L.R. 59. There

is, we concede, a distinction in the status of the arbitration. In the case at bar we have a strike

called in violation of the arbitration covenants and a judgment for damages resulting from

such violation. In the Park Construction case, as defined by the court: “There was actual

submission, full hearing, and award. All was the action of competent parties. They got the

result intended and for which they had the right to contract. Because of their competence and

the lawful nature of both means and end, it would be sheer caprice for us to nullify the whole

proceeding.” Nevertheless, what the parties intended and accomplished was a common-law

arbitration, and thus raised the precise point relied upon in the instant appeal. The lower court

had sustained a demurrer to the complaint which sought to recover the award made to the

plaintiff in the arbitration. An application of the principle contended for by the union in this

appeal would have required an affirmance. The Supreme Court of Minnesota, in the opinion

of the court delivered by Stone, J., reversed. Overruling a number of prior Minnesota cases,

the court refused to invalidate the covenant providing for arbitration of all future disputes. It

dealt, first, with the contention that such executory agreements were void as against public

policy. The court said that this contention as to the historical basis for prior holdings is open

to serious question. Referring to the much quoted case of Scott v. Avery, 25 L.J. [N.S. Exch.]

308, it quoted the comment of Lord Campbell as “eminent authority” that “the rule was the

product of judicial jealousy rather than judicial reasoning” and arose “in the time when ‘the

emoluments of the judges depended mainly, or almost entirely, upon fees.' In those days they

had no fixed salary and so ‘there was great competition to get as much as possible of

litigation into K� �� 6�� A�A�A�� 0�=�

�� A�A�A�


Westminster Hall, and a great scramble * * * for the division of the spoil.' In consequence,

they had great jealousy of arbitrations * * *. Therefore they said that the Courts ought not to

be ousted of their jurisdiction, and that it was contrary to the policy of the law to do so.” The

court went on to explain that there never was a factual basis for the holding that such

agreement ousted the jurisdiction of the courts; that it simply removed a controversy from the

arena of litigation; that it was no more an ouster than an agreement of compromise and

settlement, or a covenant not to sue; that such agreements simply disposed of issues without

litigation; that jury trials even in criminal cases may be waived; that the parties to arbitration

simply agreed on the decision of a tribunal of their own choice and erection; and that they had

a legal right to erect such tribunal. In overruling five earlier decisions of its own court the

Minnesota Supreme Court emphasized that the earlier cases were disapproved [209 Minn.

182, 296 N.W. 478.] “notwithstanding their accord with a prevailing view of decision law

elsewhere,” and admitted that its decision was contrary to the Restatement of the Law of

Contracts. In thus adopting the reasoning of the Minnesota court, we are not unaware of the

fact that the Minnesota legislature had enacted arbitration statutes, but the case cited arose not

under the statute but under the question of the applicability of the common-law rule.

In Latter v. Holsum Bread Co., 108 Utah 364, 370, 160 P.2d 421, 423, the Supreme Court

of Utah rejected as a defense to a suit for additional wages, under a labor contract, the failure

of the plaintiff's assignees to submit the dispute to arbitration as provided for in the contract.

Wolfe, J., concurred, “with great regret,” stating that in the absence of contrary legislation he

was not prepared to say that the rule that commercial arbitration contracts are unenforcible

because against public policy, should be applied to industrial arbitration agreements. 1 “In the

field of industrial disputes between labor ��

____________________

1

The foregoing reference to Judge Wolfe's distinction between arbitration in commercial agreements and

arbitration of industrial agreements is clearer in the light of Prof. Williston's discussion of the same subject

matter. 6 Williston on Contracts, Revised Ed., p. 5402, § 1930.


and management the uniform trend in legislation has been toward the encouragement of

collective bargaining. A labor-management agreement encourages labor and management to

settle disputes without resort to force. The grievance machinery in these contracts provides

for a peaceful means of disposing of future controversies arising under the agreement by

arbitration. There is no good reason why such machinery should not be set up in the

agreement and used by the parties. The long history of labor disputes indicates a trend away

from the courts and a trend toward arbitration and conciliation. The rule adhered to by courts

that commercial arbitration agreements are against public policy has long been criticized by

the courts, but the rule has been considered too firmly embedded to be overturned without

legislation.” Judge Wolfe then refers to the discussion and origin and growth of the

common-law rule against enforcement of arbitration agreements in Kulukundis Shipping Co.

v. Amtorg Trading Corporation, 2 Cir., 126 F.2d 978, and in United States Asphalt Refining

Co. v. Trinidad Lake Petroleum Co., D.C., 222 F. 1006, both of which criticized the

common-law rule. The opinion summarizes the reasons for the rule (relying on United States

Asphalt Refining Co. v. Trinidad Lake Petroleum Co., supra) as (a) revocability of the

contract; (b) that such contracts are against public policy, (c) that the covenant to refer is but

collateral to the main contract and may be disregarded, leaving the contract keeper to his

action to damages for breach, (d) ouster of the jurisdiction of the courts, and (e) likewise

causes such ouster, unless the arbitration is simply a condition precedent to suit. 2 It then thus

discusses Lord Campbell's statement ��5��9�� 5 ��)��

____________________

2

Added to the confusion is the addition from time to time in the various cases of reasons other than public

policy and the ouster of the courts to the reasons for the common-law rule.

In Utility Workers v. Ohio Power Co., 21 Labor Relations Reference Manual 2308 (1947), 77 N.E.2d 629,

the following additional reasons are recited for refusing to enforce arbitrations under the common law: (1) that

the arbitrators at common law had no authority to administer oaths or to compel the attendance of witnesses or

the production of books, documents or papers; (2) that under the common law, contracts to arbitrate could

always be revoked by a party prior to the making of an award; and (3) that the court could not compel the

arbitrators to make an award.


in Scott v. Avery quoted above and the comment thereon in United States Asphalt Refining

Co. v. Trinidad Lake Petroleum Company that “a more unworthy genesis cannot be

imagined.” [222 F. 1007.] The opinion then quotes at considerable length from the

Kulukundis case, supra. Reference is made to the opinion in that case. Much of it is pertinent

to our own holding but is too long to quote. The concurring opinion then refers to an earlier

Utah case affirming the common-law rule relative to commercial arbitration agreements and

says [108 Utah 364, 370, 160 P.2d 426.]: “However, there is no reason to interject that same

rule into other fields of the law unless compelled to do so by legislation. We should not

hesitate to shake ourselves free from this rule whenever legislation indicates a change in

public policy. In the absence of legislation to the contrary, courts should not hold that

arbitration of disputes arising out of labor contracts are unenforceable as against public

policy. * * * It is time that courts generally evidenced a change in attitude to encourage rather

than discourage use of arbitration machinery in cases where such machinery is well adapted.”

Justice Wolfe was finally impelled under the rule of stare decisis to uphold earlier decisions

of the Utah court upholding the common-law rule. 3 Justice McDonough concurred in the

opinion of Justice Wolfe.

Although Oregon has a statute authorizing settlement of future disputes, as well as existing

disputes, by arbitration and although in the case next noted the litigation revolved about an

executed arbitration award, the court specifically considered and determined the question as

to the validity in general of arbitration agreements for the settlement of future disputes. In

Rueda v. Union Pacific R. Co., 180 Ore. 133, 175 P.2d 778, 790, the court used the following

language: “Consideration of the authorities compels us to repudiate the theory on which the��

____________________

3

Justice Wolfe was also impelled to concur by reason of the Utah statute U.C.A. 1943, 104-36-1 (in all

respects similar to the Nevada statute) authorizing arbitration of existing disputes, but refraining from

authorizing arbitration of future disputes. We do not reach the same conclusion as Justice Wolfe that this

omission indicated the public policy of the state as approving the common-law rule.


plaintiff has argued his case. The rule that ‘parties can not stipulate beforehand to submit

their rights generally to the judgment of a designated third party for a final determination' is

unsound. The rule that such agreements oust the courts of jurisdiction has an unworthy

genesis, is fallacious in reasoning and has been followed merely because of ancient

precedent.” The court then expressly disapproved the dictum of an earlier case which

intimated that agreements making the decision of the arbitrators final and conclusive are void

because they oust the courts of jurisdiction. It also rejected the Restatement of the Law of

Contracts following the common-law rule as to executory arbitration agreements. It also

quoted at length with approval Scott v. Avery, 5 H.L.Cas. 811 (1856), cited above, rejecting

the earlier common-law rule and holding definitely that “it would be a most inexpedient

encroachment upon the liberty of the subject if he were not allowed to enter into such a

contract.” Lord Campbell said further in Scott v. Avery: “I can see not the slightest ill

consequences that can flow from such an agreement, and I see great advantage that may arise

from it. Public policy, therefore, seems to me to require that effect should be given to the

contract.”

In Local 1111, Etc. v. Allen-Bradley Co., 259 Wis. 609, 49 N.W.2d 720, 723, specific

enforcement of an arbitration agreement was denied, the court deciding to adhere to the

common-law rule above discussed. It quoted however with sympathy the following: “Many of

the courts call such contracts illegal and void, but this characterization has been criticized as

wanting in strict accuracy, in view of the authority sustaining enforcement of executed

agreements, and other cases which apparently support a right to recover damages in case of

breach.”

Note that in the Allen-Bradley case it was the union that sought specific performance as

against the present situation in which the employer sought damages for breach of the

arbitration covenants. This evokes reference to appellant's statement that Stine had breached

his covenant to employ only journeymen plumbers in the �� 0 �� ,��


cutting of pipe on contract jobs, and that the performance by Stine of this covenant was the

quid pro quo for the union's surrender of its proverbial right to strike and to submit to

arbitration. This, we think, is not entirely accurate. The quid pro quo for the union's surrender

of its right to strike was the employer's surrender of his right to a lockout.

We note further at this point the additional confusion in the application of the

common-law rule. Many of the courts in upholding that rule rely on it in denying the right to

specific performance or injunction. Some of the cases seem to include “enforcement” by an

action for damages for the breach of the covenant. Others would appear to permit an action

for damages but to restrict such an action to nominal damages only. Throughout there appears

to be confusion in the consideration of the “enforcibility” of arbitration covenants whether in

law or in equity. Specific performance and injunction are of course equitable remedies.

Action for damages for breach is an action at law. Ordinarily, of course, equitable relief will

not be awarded where complete relief by an action at law is available.

To the foregoing we should add the well-recognized trend in this state for a number of

years for parties to insert in all manner of contracts clauses whereunder they agree to submit

to arbitration all disputes that may arise with reference thereto. The particular contract

involved here is a renewal of earlier contracts containing arbitration clauses. And for the most

part, nay, almost invariably, these contracts are drawn by expert counsel. Unquestionably

such contracts are drawn in good faith with the intention of the parties to carry them out.

We have noted what appears to us to be an ever-increasing trend to depart from or to

abrogate the common-law rule, and the reasons for such trend. We think this is apparent too

in the constant recurrence of dissenting opinions in the cases where the common-law rule has

been upheld. This court does not suffer from the embarrassment of the courts that have felt

impelled to bow to stare decisis in their own jurisdictions. In this ��


state the question is res integra. We heretofore pointedly reserved the right to pass on the

question. Appellant refers us to In re Mollart, 58 Nev. 329, 337, 65 P.2d 676, 78 P.2d 93, 94,

in which we held that Nevada's Uniform Arbitration Act, Laws 1925, ch. 7, secs. 510-534

(dealing with existing controversies), had repealed an earlier act and so held that the later act

was the exclusive statutory method of arbitration in this state, so that an award under the

procedure of the early act was void. The case is not in point as to any of the present issues,

but significant is the following statement made by the court: “Something is said in the briefs

to the effect that the award is good as a common-law award. As to that, we express no

opinion.” We are therefore entirely at liberty to consider the uncertain and questionable origin

of the common-law rule, the apparent reason behind the rule, the conditions under which the

rule was originally enunciated, the question whether those conditions presently exist in this

state, whether the original reason or basis for the rule was valid and finally whether we should

or should not adopt or reject the rule as applicable or inapplicable to present conditions. For

conditions existing in the times of Lord Coke, we can perhaps do no better than refer to

Catherine Drinker Bowen's book “The Lion and the Throne.” No one can question the vast

change since those days or the vast difference in conditions now existing in Nevada without

reference to conditions in other states. When the states first adopted the common law of

England the population of the United States comprised some eight million inhabitants

occupying the Atlantic seaboard. Employment of labor was in its infancy. Industries were

confined to a moderate amount of agriculture, raising of cotton and tobacco, a few head of

livestock, trapping, fishing, and hunting, some interstate commerce, and like pursuits. The

settlement of the west was yet to commence. Today's vast industries were unknown,

transportation by steam was to come and virtually to go. The whole great automotive industry

(now selling seven million cars a year) was not dreamed ��


of, nor was the rubber industry or the oil industry, the manufacture of the phonograph, the

telephone, radio, television, airplanes and many others, or the incidental industries connected

therewith. Many millions of people are engaged in these industries which were not even

conceived in the days of the adoption by the original states (and by other states from time to

time) of the common law of England, to say nothing of the days of Lord Coke. A half-million

union employees are said to be engaged in the steel industry alone. And one need but observe

the small number of reports of law and equity cases in the early days as compared with the

volumes of reports of the state and federal courts today, or to compare the number of courts

and judges of the earlier times with the number of courts and judges of the American courts

of today to note the preoccupation of the courts with the disputes presented to them. This is

so without even mentioning the many commissions in this country and in this state to which

are assigned the determination of issues which would otherwise be submitted to the courts.

To this we need only add the disputes in commercial and industrial issues which the courts

throughout the nation are daily deciding. Perhaps it is not amiss to refer to the constant and

inconsistent suggestions that the thousands upon thousands of personal injury suits that

congest our court calendars be submitted to commissions to be created for the purpose. When

we superimpose upon these conditions the acknowledged advisability of avoiding industrial

warfare, strikes, work stoppages, and lockouts that involve the lives of millions of our

population so that harmonious relations may be preserved, that labor may continue

uninterruptedly at work and that our vast industries may continue to function without

interruption, we should be gravely at fault if we felt that our hands were tied by a

common-law rule enunciated 350 years ago, of doubtful justification even then and of

confused and uncertain interpretation ever since.

The force of our conclusions may perhaps be illustrated by the following statement

contained in the ��0 ��M�&=��<��<�� ,��'


union's brief: “If plaintiff had abided by the contract and permitted Ringelberg to cut pipe

only for over-the-counter sales, there is no reason to believe the strike would have been

called.” To this we might add: “If defendant had abided by the contract and its business agent

Long had called upon defendant's agent McKee to lodge the union's grievance that Ringelberg

was cutting pipe for contract jobs, there is no reason to believe that Stine would not have

discontinued such practice (if it existed) so that there would have been no occasion for the

strike.”

[Headnote 8]

We must reject the contention of appellant that the judgment must be reversed because the

common-law rule declaring unenforcible agreements for arbitration of future disputes robs

the complaint of all force as stating a claim against the defendant.

The union asserts that even if Stine made out a case for damages growing out of the

union's work stoppage without resorting first to arbitration, the verdict for damages in the

sum of $50,000 was grossly excessive. The item of damages occupied a large proportion of

the trial, involved the admission of numerous exhibits, and appellant has devoted a large part

of its briefs to the subject. It calls attention to the fact that the strike lasted only seven days in

April 1956, and contends that Stine's closing down of his plumbing business in September of

that year could not possibly be a direct, natural, and foreseeable result of the seven-day strike

in April; that any damages caused directly by the seven-day strike would be restricted to the

possible standby costs which, under the evidence, ranged from $300 to a sum not exceeding

$2,400; that Stine's closing out of his plumbing business was a voluntary act not caused by

any breach of the union's duties under the labor agreement; that in any event Stine made no

attempt to sell the business as a going concern, or otherwise to mitigate his damages; that the

$50,000 verdict, or such part thereof in excess of $2,400, must stand or fall on the

justification of this item as a measure of the value of the good will of his business claimed to

have been lost by �� ,��


reason of the strike. We devote ourselves, as briefly as may be, to these items.

[Headnotes 9-11]

As we read appellant's brief attacking what it characterizes as “this monstrous verdict,”

appellant's main contention appears to be that it was the result of the court's prejudicial error

in admitting testimony, characterized as hearsay, of “reports allegedly made to him by

plumbers and general contractors as to the effect of the strike on his ability to obtain

journeymen plumbers and to obtain plumbing sub-contracts from general contractors”; 4 that

it was error for the court to admit the plaintiff's hearsay testimony “that in the fall of 1956 his

accountant, a member of a firm of certified public accountants, had placed a valuation of

$50,000 on his business”; 5 that it was error for the court to admit in evidence a purchase and

sale agreement between plaintiff and his superintendent, made about one year before the

strike, which provided that in the event of plaintiff's death, the superintendent would purchase

plaintiff's business, including the good will and equipment, but �� .#%�%%%�3�=�� 0 ��

____________________

4

After the objection was made the court ordered: “The testimony is to be allowed not to prove the truth but to

prove why the plaintiff did something. The jury is instructed to take this testimony into consideration, whatever

Mr. Stine testifies to that somebody else told him may not have been true but that is the reason Mr. Stine did

certain things. It is for a limited purpose.” The question asked was: “And just for the limited purpose of

proving—just state what you did and why you did it, not for the purpose of proving the truth of what he may

have told you—would you tell the jury what Mr. McKee reported to you?” Thus limited, the ruling was proper.

Las Vegas Sun v. Franklin, 74 Nev. 282, 329 P.2d 867; International Longshoremen's, Etc. v. Juneau Spruce

Corp. (9 Cir. 1951), 189 F.2d 177, 191, af'd 342 U.S. 237, 72 S.Ct. 235, 96 L.Ed. 275.

5

Stine's testimony was in effect that he and his accountant arrived at the figure of $50,000 for the value of the

good will. “[This figure] was his opinion as well as my opinion at the time. Q. That you had arrived at after

consultation? A. I think around $50,000.” Stine's testimony of such concerted action and his testimony of the

value of the good will (in essence his opinion of the value of the good will) was not incompetent as hearsay

because that opinion was formed and was more or less dependent upon the figure arrived at by his accountant

from Stine's books and records and communicated by the accountant to Stine. Gulf Refining Co. v. Smith, 164

Ga. 811, 139 S.E. 716, 720; Powers v. Powers, 213 Ga. 461, 99 S.E.2d 818. See also Chaffee v. United States,

18 Wall. 516, 21 L.Ed. 908, 913.


excluding the land and building, for the sum of $50,000. 6 It would appear then that if the

evidence thus admitted was competent, relevant, and material and that the objections thereto

were properly overruled, the weight to be given thereto and all reasonable inferences to be

drawn therefrom were proper subjects for the jury's consideration. We have carefully

reviewed appellant's able briefs and oral argument on these issues, as well as other

assignments of error in rulings on admissibility of evidence, and have concluded that the

court's rulings are free of error. It would add nothing to the body of the law of evidence for us

to discuss these in detail, and would serve only to prolong unduly this already too long

opinion.

[Headnote 12]

We are satisfied that there was substantial evidence to support the jury's verdict of $50,000

damages even if we concede that the jury allocated almost all of this amount to the

respondent's loss of the good will of the business. Annual profits over a period of years

averaged over $37,000. One expert witness, after allowing a reasonable return on the capital

investment and the labor of Stine, concluded that over $11,000 of the annual profit was

allocable to good will. Capitalizing this at various percentages, he fixed the value of the good

will ��.#/�%%%��.2#�%%%�/�(��0 �� .1"�%%%�� $��

____________________

6

Defendant's counsel, in cross-examining Stine, secured an admission that by the terms of a written

agreement between Stine and one Lewis, the latter was made the beneficiary of an insurance policy on Stine's

life—the proceeds, on Stine's death, to go to Lewis to buy the business from Stine's estate. From this the jury

might infer that such inducement to Lewis to remain with the plumbing company indicated his importance as a

key man, to whom, rather than to Stine, was due the credit of any item of good will. When, on redirect, Stine

offered the entire agreement, defendant objected on the ground that the contract had “nothing to do with the

issues of this case.” The entire contract, however, showed that Lewis could resign whenever he desired, and

made no provision that if Lewis should die his estate should in any way profit from the insurance. Such situation,

or any other provision that might counteract any persuasive force of the admission, was properly admissible

under the general rule. Perrin v. United States (9 Cir. 1909), 169 F. 17, 26. 7 Wigmore on Evidence, 3d Ed., §

2113, pp. 523-528. As to the nature of the objection urged, see State v. Kuhl, 42 Nev. 185, 175 P. 190, 196, 3

A.L.R. 1694.


at from $57,000 to $95,000. 7 The union's expert witness placed a value of $13,000 on the

good will, but a number of factors existed that might have caused the jury to discount his

minimizing of this value. The jury had before it the full history of the plumbing company, its

revenues, costs, and profits, as well as information reflected from its income tax returns over

the years, prepared by certified public accountants and other sources. The learned trial judge,

in denying the union's motion for judgment notwithstanding the verdict and its alternative

motion for a new trial, said: “There is evidence ample to support a verdict ranging anywhere

from, the Court recalls from three to four thousand dollars up to as high as seventy to ninety

thousand dollars, possibly more. The Court has no way of knowing how the jury arrived at the

figure of $50,000.”

In Ostertag v. La Mont, 9 Utah 2d 130, 339 P.2d 1022, 1025, the court said: “There is

another important factor to consider in determining whether the verdict should be interfered

with: that is, the deliberate action of the trial court upon the question of damages in his ruling

upon the motion for a new trial. When the trial judge, with his obvious advantages in close

contact with the parties and their witnesses has reviewed the situation and given his opinion

on the question, it lends some additional verity to the judgment. It will not lightly be

disturbed by this court, nor at all unless it is unreasonable in view of the whole record before

us.”

Both parties rely on Lewis v. Benedict Coal Corporation, 6 Cir., 259 F.2d 346, 352. It

supports respondent's main contention that a strike to settle a dispute which a collective

bargaining agreement provides shall be settled by an exclusive and obligatory alternative

procedure constitutes a violation of the agreement. Appellant relies on that part of the

decision and opinion which sets aside an item of damage found by the jury in the sum of

$21,000 resulting from a destruction by fire of a certain cable �� 0 � ��,��

____________________

7

See Standard Oil Co. of Cal. v. Moore (9 Cir. 1957), 251 F.2d 188, 219; Greenwood v. Hotel Employees

Alliance, 19 LRRM 2073 (CC Ala. 10th Cir.).


on a construction project which was abandoned after construction was interrupted by the

union's strike. The court said: “Clearly this loss, if it be treated as such, is an item of special

damages which could not have been within the contemplation of the parties to the contract.”

In the instant case the jury was specifically instructed: “If the Plaintiff is entitled to damage

then recoverable damages include compensation for all injury to the plaintiff's business

resulting from the commission of wrongful acts for which the defendant is responsible

provided such injury resulted in the natural and usual course of events so that it can fairly and

reasonably be said that if the parties had thought about such a breach when the contract was

made, loss of such character would have been within their contemplation.”

[Headnote 13]

Appellant asserts that the evidence shows that Stine took no steps to mitigate his loss, and

that for such reason the $50,000 verdict cannot be sustained. Stine was examined and

cross-examined at great length on this point. The jury was properly instructed as to Stine's

duty to attempt to mitigate his loss. The question was one for the jury and beyond the scope

of our review. Shirley-Herman Co. v. International Hod Carriers, Etc., 2 Cir., 182 F.2d 806,

810, 17 A.L.R.2d 609. The assignment is without merit.

[Headnote 14]

In support of its contention that the closing down of plaintiff's plumbing business in

September 1956 could not be a direct, natural, and foreseeable result of the seven-day strike

in April of that year, appellant relies on Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Reprint

145, 5 Eng.Rul.Cas. 502; General Magnetic Corp. v. United E. R. & M. W., Etc., 328 Mich.

542, 44 N.W.2d 140; and Lewis v. Benedict Coal Corporation, 6 Cir., 259 F.2d 346. These

cases have to do with impropriety of allowance for speculative lost profits, items of damage

not reasonably contemplated by the parties under their contract, and similar items under

which the law is ��


undoubtedly correctly stated. These items were likewise properly submitted to the jury under

appropriate instructions.

Appellant argues at considerable length that the evidence shows that the closing down of

plaintiff's business was the plaintiff's voluntary act and decision caused by the down trend of

the construction and plumbing industry in the district and by his own desire to divert his

capital and assets to another business enterprise, and was not caused by any breach of

appellant's duties under the labor agreement. In support of this argument appellant reviews

the testimony at length. Appellant's entire discussion presents, in our opinion, issues of fact

that were properly submitted to the jury.

[Headnote 15]

The same is true with reference to appellant's prolonged discussion concerning evidence of

an incident under which the union had disciplined three of its members who were plumbers

who had worked for Stine. Appellant's contention is that this had to do entirely with the

internal workings and procedures of the union and had no proper place in the evidence

submitted to the jury. Respondent's theory is that these men were disciplined apparently

because they had not reported to the union that Ringelberg was cutting pipe, and that this

promoted the diffidence of other plumbers to work for Stine in fear of likewise being

disciplined by the union. We do not intend to be drawn into this prolonged argument other

than to remark that the situation was relevant to the issue of damages. It too presented

questions of fact for the jury's determination.

Appellant discusses a number of other issues involved in the case, but these discussions

are, in our opinion, devoted to the contention that the evidence does not support the verdict.

In each instance the evidence was in conflict or was such that proper inferences might be

drawn by the jury in favor of one of two resulting conclusions. In none of these instances do

we feel called upon to interfere with the jury's verdict. An indication of the extent to which

we would otherwise have to go � ��0 �� !� ��


is found in the appellant's request for 24 special interrogatories which however were not

given.

[Headnote 16]

Appellant assigns error in the refusal to give several of its requested instructions. For the

most part the rejected instructions were embraced in other instructions which correctly stated

the law. Other rejected instructions were incomplete as requested and properly refused. The

rejection of appellant's special interrogatories was a matter within the discretion of the trial

court. 5 Moore's Federal Practice, 2nd Ed., § 49.05, pp. 2217-2218.

Appellant has discussed other matters to which we have given careful attention but which,

in our opinion, point to no substantial prejudicial errors, or involve questions of fact

submitted to and determined by the jury under substantial evidence supporting the verdict.

The judgment is affirmed with costs.

Pike, J., and Brown, District Judge, concur.

McNamee, C. J., having disqualified himself, the Governor commissioned Honorable

Merwyn H. Brown, District Judge of the Sixth District, to sit in his place.

____________

��76 Nev. 220, 220 (1960) Mahan v. Hafen��

L. W. MAHAN, Individually, and as Administrator of the Estate of ROBERT MAHAN,

Deceased; LARRY TAYLOR; CECIL E. CLUFF, Individually, and as Administrator of the

Estate of PHILLIP CLUFF, Deceased, Appellants, v. MAX HAFEN, Respondent.

No. 4254

April 25, 1960 351 P.2d 617


Department No. 1.

Action for injuries to, and death of, passengers in automobile which ran into rear end of

defendant's truck as defendant was making left turn into side road. The ��

��76 Nev. 220, 221 (1960) Mahan v. Hafen��

trial court rendered judgment for defendant, and plaintiffs appealed. The Supreme Court,

McNamee, C. J., held that it was for jury to say whether defendant had been negligent in

failing to give signal 300 or more feet before commencing to turn, in failing to look to rear

immediately before making turn, or in cutting corner of intersection.

Affirmed.

(Petition for rehearing denied May 17, 1960.)

Foley Brothers, of Las Vegas, for Appellants L. W. Mahan and Cecil E. Cluff.

Earl and Earl, of Las Vegas, for Appellant Larry Taylor.

Morse, Graves and Compton and James H. Phillips, of Las Vegas, for Respondent.

1. Automobiles. In action for injuries to, and death of, passengers in automobile which ran into rear end of defendant's

truck as defendant was making left turn into side road, it was for jury to say whether defendant had been

negligent in failing to give signal 300 or more feet before commencing to turn, in failing to look to rear

immediately before making turn, or in cutting corner of intersection.

2. Negligence. No liability attaches unless there is causal connection between negligence and injury.


truck as defendant was making left turn into side road, defendant could not be held liable unless his

negligence, if any, had been proximate cause of accident.

4. Negligence. Proximate cause is any cause which in natural and continuous sequence, unbroken by any efficient

intervening cause, produces injury complained of and without which result would not have occurred.

5. Negligence. Where two or more causes contributed proximately to injuries contained of, recovery may be had against

either one or both of joint tortfeasors.


truck as defendant was making left turn into side road, even if jury had found �� 0 ��

��76 Nev. 220, 222 (1960) Mahan v. Hafen��

that both drivers had been negligent, defendant could have been relieved of liability only if automobile

driver's negligence had been sole proximate cause of accident.


truck as defendant was making left turn into side road, whether defendant's negligence, if any, was

proximate cause of accident was factual matter, regardless of whether negligence arose by violation of

statute or by ordinary negligence.


truck as defendant was making left turn into side road, question as to which driver's negligence had been

proximate cause of accident, if in fact both drivers had been negligent, was for jury.

9. Appeal and Error. That, as triers of fact, judges of reviewing court might have concluded that defendant had been negligent

and that his negligence had been a concurring proximate cause of motor vehicle collision, would not permit

reviewing court to set aside jury's contrary finding.

10. Automobiles. In rural areas, where traffic conditions differ and intersecting roads more often than not vary in size and

in degree of intersecting angle, driver need not execute left turn in such manner that his vehicle is entirely

to right of center of roadway into which he is making left turn.

11. Witnesses. In action for injuries to, and death of, passengers in automobile which ran into rear end of defendant's

truck as defendant was making left turn into side road, wherein witness for plaintiffs testified that there

were no restrictions on passing in area where accident took place, inquiry as to whether statute prohibited

driving on left side of road within 100 feet of intersection constituted proper cross-examination.

12. Appeal and Error. Where statute prohibiting driving on left side of roadway when approaching within 100 feet of or

traversing intersection was already in evidence without objection in motor vehicle collision case, reading of

statute to jury during argument without objection at that time was not error which would be considered for

first time on appeal.

13. Appeal and Error. In absence of any objection to reading of statute to jury in motor vehicle collision case, trial court was not

called upon to make any ruling which could be deemed excepted to under Rule. NRCP 46.

14. Trial. Under circumstances of motor vehicle collision case, plaintiffs were in no manner prejudiced by

reference to fact that plaintiffs' attorney was brother of local district attorney, where reference was ordered

stricken from record.

��76 Nev. 220, 223 (1960) Mahan v. Hafen��

15. New Trial. In action for injuries to, and death of, passengers in automobile which ran into rear end of defendant's

truck as defendant was making left turn into side road, one plaintiff's implied consent to action of court in

permitting reading of probate petition, disclosing that a coplaintiff had made claim against estate of

deceased driver of automobile in which plaintiffs had been riding at time of accident, would have to be

assumed from his silence with respect to such exhibit: and trial court would not be put in error for denying

such plaintiff's new trial motion predicated upon “surprise which ordinary prudence could not have guarded

against.”

16. New Trial. Where evidence is relevant to only one of several consolidated cases, it is incumbent upon counsel to see

that such evidence is limited to particular case to which it is legally admissible, and failure of counsel to

request instruction in such matter or otherwise to act, and his speculating instead on chance of a favorable

verdict, precludes him from claiming surprise after verdict of jury.

OPINION


This is an appeal from a judgment on a jury verdict in favor of respondent. Two actions for

wrongful death and one for personal injuries, all resulting from the same mishap and each

based on a charge of negligence, were consolidated for trial in the court below.

On December 12, 1956 six college students were traveling on U. S. Highway 91 from

Provo, Utah, to their homes in Los Angeles, California, for Christmas vacation. As they were

motoring along in an automobile owned by the father of the driver, Joan Sperry, at a point

approximately one mile southwest of Mesquite, Nevada, they ran into the rear end of a truck

being driven by respondent which was loaded with bales of hay. Respondent at the moment

of collision was leaving the highway on the left thereof and entering a side road. The accident

happened during daylight. As a result of the collision Joan Sperry and two other passengers

were killed. Plaintiffs below were a surviving passenger, Larry Taylor, and the legal

representatives of said two other passengers. Joan Sperry's personal representative was not a

party to the action.

��76 Nev. 220, 224 (1960) Mahan v. Hafen��

One of the errors assigned by appellants was the failure of the trial court to grant their motion

for judgment notwithstanding the verdict or in the alternative a new trial. It is their contention

that the evidence shows without conflict that respondent was negligent in that he failed to

give a left-hand signal 300 or more feet before commencing to turn, that he failed to look to

the rear immediately before making the turn, and that he was in the process of cutting the

corner of the intersection at the time of the collision, the first two alleged acts of negligence

being in violation of state law. Respondent on the other hand contends that these as well as

the question of proximate cause were all factual questions based on conflicting evidence, and

thus the conclusion of the jury in favor of respondent cannot be set aside on appeal.

[Headnote 1]

The transcript of the evidence contains testimony of respondent that he did not give the

signal of his intended left-hand turn (the signal was a standard mechanical arm operated by a

lever on the dashboard of the truck) until he was 150 or 200 feet from the intersection, that he

did not look to the rear after he gave the turn signal, and that he started his left turn some 50

to 75 feet before he reached the intersection. On the other hand the transcript discloses that

respondent also testified that he was 300 or 400 feet from the turnoff when he raised the

signal arm, and that thereafter when he was “100 feet, probably a little more” from the

turnoff, he looked back through his rearview mirror. Oscar Abbott, a deputy sheriff who

arrived at the scene shortly after the collision, testified that respondent had told him there that

he had not looked back to see if a car was coming, but respondent denied making such a

statement to Abbott. With respect to cutting the corner, exhibits in evidence, together with

respondent's testimony in explanation thereof, created the possibility that reasonable men

might differ as to whether or not respondent was making a proper turn at the time of the

accident. All of the appellants' assertions of negligence on the part of � ��

��76 Nev. 220, 225 (1960) Mahan v. Hafen��

respondent became factual issues, the determination of which was solely the function of the

jury.

[Headnotes 2-4]

Even if the jury considered that the respondent was negligent in one or more respects

(which cannot be ascertained because of the absence of special interrogatories), nevertheless

unless such negligence was a proximate cause of the accident, liability of respondent would

not result. Smith v. Taylor-Button Co., 179 Wis. 232, 190 N.W. 999; Dieckmann v.

Signorini, 47 Cal.App.2d 481, 118 P.2d 319. Proximate cause is any cause which in natural

and continuous sequence, unbroken by any efficient intervening cause, produces the injury

complained of and without which the result would not have occurred. Rimco Realty & Inv.

Corp. v. La Vigne, 114 Ind.App. 211, 50 N.E.2d 953. No liability attaches unless there is a

causal connection between the negligence and the injury. Clark v. Chrishop, 72 Ida. 340, 241

P.2d 171; Smith v. Taylor-Button Co., supra.

[Headnotes 5-7]

Where two or more causes proximately contribute to the injuries complained of, recovery

may be had against either one or both of the joint tort-feasors. Smith v. Payne, 85 Ga.App.

693, 70 S.E.2d 163. If the jury found that Joan Sperry and respondent were both negligent,

then, to relieve respondent of liability to these appellants it must have found that Joan

Sperry's negligence was the sole proximate cause of the accident. Whether respondent's

negligence, if any, was a proximate cause of the accident is a factual matter regardless of

whether the negligence arose by violation of statute or by ordinary negligence. Styris v. Folk,

62 Nev. 208, 209, 139 P.2d 614, 146 P.2d 782. “Negligence per se and proximate cause are

two separate and distinct issues. While one is presumed as a matter of law, the other must,

nevertheless, be proved as a matter of fact.” Smith v. Zone Cabs, 135 Ohio St. 415, 21 N.E.2d

336, 339.

Evidence was presented to the jury that the automobile driven by Joan Sperry was going

somewhere between 50 and 90 miles per hour before she applied her ��,� � ��1!!��-��,��#%%�� (��

��76 Nev. 220, 226 (1960) Mahan v. Hafen��

brakes some 144 feet before the point of impact; that back up the road 500 feet from this

point there was a highway sign indicating a T type of intersection. She attempted to pass to

the left despite the said intersection sign. The six students were laughing and singing while

and after passing this sign. It was daylight and the truck was plainly visible, proceeding at a

speed of from 5 to 10 miles per hour.

[Headnotes 8, 9]

Under this evidence we cannot say that only one inference may be drawn as appellants

contend. Thus the question of whose negligence was the proximate cause of the accident, if in

fact respondent was negligent, was for the jury. That as triers of the fact we might have

concluded that the respondent was negligent and that his negligence was a concurring

proximate cause does not permit us on appeal to set aside the jury's contrary finding. Murphy

v. Murphy, 65 Nev. 264, 193 P.2d 850.

[Headnote 10]

Error is assigned in the court's failure to give the following instruction:

“You are instructed that ordinary care requires that the driver of any vehicle making a left

turn into an adjoining roadway must keep to the right of the center line of the highway along

which he has been proceeding, until he passes the center of the adjoining roadway. Ordinary

care further requires that the driver shall not commence to turn before he reaches the center of

the adjoining roadway. Thus, in the exercise of ordinary care, the driver must execute a left

turn so that the vehicle is entirely to the right of the center of the roadway he is entering at the

time he is entering it.”

It is admitted in appellants' brief that at the time of the accident there was no Nevada

statute defining how turns of this type were to be made. In the absence of statute, such

instruction in our opinion does not state the law with respect to turns made in rural areas

where traffic conditions differ and intersecting roads more often than not vary in size and in

the degree of the intersecting angle. It was a question for the jury to determine from the

evidence whether respondent was making ��

��76 Nev. 220, 227 (1960) Mahan v. Hafen��

a proper turn under the circumstances. The court properly refused to give said instruction.

[Headnotes 11-13]

Respondent submitted an instruction which the court refused to give to the effect that the

law of Nevada provides that no vehicle shall at any time be driven to the left side of a

roadway when approaching within 100 feet of or traversing any intersection. The court

however permitted counsel in his final argument to the jury to state that such was the law, and

to refer to the pertinent statute.

On direct examination Oscar Abbott, a witness for appellants, testified that in the area

where the accident took place passing was not restricted. On cross-examination he was asked

if it was not a fact that a Nevada statute prohibits a motorist to drive on the left-hand side of a

road within 100 feet of an intersection. Being relevant to impeachment this was proper

cross-examination. Appellants objected to the question only on the ground that the junction of

the highway and side road was not an intersection. Thereafter, without further objection,

respondent was permitted to read the said statute to the witness in the presence of the jury and

to ask the witness if he were aware of said statute. Under these circumstances where the

statute was already in evidence without objection, the reading of the statute to the jury during

argument without objection at that time was not error which will be considered for the first

time on appeal. In the absence of any objection, the trial court is not called upon to make any

ruling which could be deemed excepted to under Rule 46, NRCP. Cranford v. State, 76 Nev.

113, 349 P.2d 1051.

[Headnote 14]

During his argument to the jury respondent's counsel in referring to one of the attorneys for

appellants stated: “Maybe he wanted to have his brother bring criminal proceedings and bring

his brother in to prosecute.” The brother referred to was at that time the local district attorney.

Appellants contend that this statement was untrue and inflammatory, and amounted to

prejudicial misconduct of counsel. Inasmuch as these remarks �� ,�� 0 �� ,��

��76 Nev. 220, 228 (1960) Mahan v. Hafen��

were ordered stricken from the record and the jury admonished to disregard them, and

respondent's counsel himself asked that they be disregarded, we fail to see that appellants

were in any manner prejudiced thereby. Lawson v. Town & Country Shops, 159 Cal.App.2d

196, 323 P.2d 843.

The final assignment of error is raised in the separate brief of appellant Larry Taylor.

[Headnote 15]

During the examination of L. W. Mahan, one of the appellants, after counsel had

approached the bench to confer about the exhibit hereinafter mentioned, Mr. Morse, one of

the attorneys for respondent stated to the court in the presence of the jury: “Your honor, with

the stipulation of counsel we have the Case #86554, Department Two of the Eighth Judicial

District Court of the State of Nevada, in and for the County of Clark. It is the petition for

probate of the estate of Joan Sperry, deceased. Your honor indicated that he would take

judicial notice of the filing of the pleadings and we offer same in evidence.” Without

objection by any of the appellants the court then stated: “Judicial notice is so taken of said

file.” As Mr. Morse commenced to read the petition in said file, Mr. Joseph M. Foley, one of

the attorneys for the appellants, other than appellant Taylor, stated: “I wonder if he could read

the entire file, have the file dates.” Mr. Morse then read the file date and the balance of the

petition which stated in part that Mr. Foley was the petitioner; that he had been retained as an

attorney by L. W. Mahan who was the father and heir at law of Robert Mahan, deceased (one

of the victims of the accident); that L. W. Mahan had a claim for the wrongful death of his

said son against the estate of Joan Sperry, deceased; that said claim resulted from the said

Joan Sperry, “negligently, recklessly and carelessly, or in a manner grossly negligent” driving

an automobile against a truck driven by Max Hafen and as a direct and proximate result said

Robert Mahan was killed. The entire petition including the verification thereof by Joseph M.

Foley was read to the jury.

��76 Nev. 220, 229 (1960) Mahan v. Hafen��

The first time any of the appellants made objection to this evidence was after the verdict in

the motion of appellant Taylor for a new trial based on “surprise which ordinary prudence

could not have guarded against.”

In view of the record we are not impressed with the merits of appellant Taylor's argument

in support of his claim of surprise. His implied consent to the action of the court if not in fact

his stipulation thereto must be assumed from the silence of appellant Taylor with respect to

this exhibit. As to the other appellants, it appears that the taking of judicial notice of the

contents of the petition and the reading of the same to the jury was with their approval if not

in fact upon their stipulation.

[Headnote 16]

It may well be true that said exhibit, upon proper objection, would not be competent

evidence insofar as appellant Taylor's case was concerned. But as it often happens in the trial

of consolidated cases that some evidence is relevant only to one of the several cases, under

such circumstances it becomes incumbent upon counsel to see that such evidence is limited to

the particular case to which it is legally admissible. The failure of counsel to request an

instruction in such matters or otherwise to act and thereby speculate on the chance of a

favorable verdict precludes him from claiming surprise after verdict of the jury. Noble v.

Tweedy, 90 Cal.App.2d 738, 203 P.2d 778; Robbins v. Robbins, N.D., 70 N.W.2d 37.

As no prejudicial error appears in the record the judgment is affirmed.


____________

��76 Nev. 230, 230 (1960) Timney v. Timney��

FLORENCE TIMNEY, Appellant, v.

WALTER J. TIMNEY, Respondent.

No. 4259

April 26, 1960 351 P.2d 611


Department No. 2.

Divorce proceeding. The lower court rendered a judgment, and wife appealed. The

Supreme Court, McNamee, C. J., held that fact that trial court determined that wife was not a

proper person to have custody of children, and gave custody to husband, was a sufficient

implied finding that husband was a fit and proper person.

Affirmed.

Harry E. Claiborne, of Las Vegas, for Appellant.

Edward G. Marshall, of Las Vegas, for Respondent.

1. Divorce. That trial court in divorce proceeding determined that wife was not a proper person to have custody of

children, and gave custody to husband, was a sufficient implied finding that husband was a fit and proper

person. NRCP 52(a).

2. Divorce. On appeal in divorce proceeding, reviewing court assumed that trial court considered the present comfort

and future well-being of children in awarding custody. NRS 125.140.

3. Infants. Trial court has large discretion in determining what is best for child's welfare, and unless such discretion

is abused, judgment will not be disturbed.

4. Divorce. Evidence in divorce proceeding supported trial court's findings and conclusions awarding custody of

children to husband.

OPINION


This is an appeal from a judgment awarding the respondent husband a divorce. The only

question raised on appeal concerns the award of custody of the children to respondent.


The trial court found that the children, two boys aged respectively 11 and 5, were in the

custody of the respondent during the pendency of the action and it was the court's conclusion

that they should remain there, except for certain visitation periods. It expressly found that

appellant “is not a proper person to have custody of these minor children.”

It was admitted by appellant during the trial and conceded by her attorney in his opening

brief herein that appellant had been guilty of adultery. Other evidence in the record showed

appellant's neglect of the children and of the household. Appellant nevertheless contends that

since the court did not expressly find that respondent was a fit and proper person to have

custody, the award of custody to him was error, particularly in view of the fact that he was 55

years of age while appellant was 41, and because of evidence that he had used improper

language in the presence of the children. In our opinion this contention is devoid of merit.

[Headnote 1]

Rule 52(a) N.R.C.P. provides that in all actions tried without a jury “the court shall find

the facts specially and state separately its conclusions of law thereon.” There was no

allegation in respondent's complaint that he was a fit and proper person, although respondent

in his answer to appellant's cross-complaint did deny that she was a fit and proper person to

have custody of the minor children. The trial court made express findings on all of the

material matters pleaded and the finding that the children should remain in the custody of

respondent is an implied finding that he was a fit and proper person. Rule 52(a), therefore,

was not violated. Garibaldi Bros. Trucking Co. v. Waldren, 74 Nev. 42, 321 P.2d 248.

[Headnote 2]

It will be assumed that the court considered the present comfort and future well-being of

the children as required by NRS 125.140. “The court's keen desire to make such arrangement

as seemed for the best interests of the children is manifest throughout the hearing.” Couturier

v. Couturier, 76 Nev. 60, 348 P.2d 756.


[Headnote 3]

The trial court is vested with a large discretion in determining what is for a child's best

welfare. Murphy v. Murphy, 65 Nev. 264, 193 P.2d 850. Unless such discretion is abused, the

judgment will not be disturbed. Goto v. Goto, 52 Cal.2d 118, 338 P.2d 450.

[Headnote 4]

The lower court had the opportunity to see and observe the parties and from their

demeanor on the witness stand appraise their relative fitness. Furthermore the two boys were

interviewed by the judge in chambers. These circumstances, together with the abundance of

evidence in the record to support the court's findings and conclusions require affirmance of

the judgment.

Judgment affirmed.


____________

��76 Nev. 232, 232 (1960) Von Hofen v. Oncken��

FREDERICK VON HOFEN, HOWARD ANDERSEN, GORDON SHERWOOD, Jr., and

C. E. McLAUGHLIN, Appellants, v. EDWARD ONCKEN and MERL SAGE, Respondents.

No. 4240

April 27, 1960 351 P.2d 614



Action to recover the price of corporate stock against buyers who claimed breach of

warranty. Judgment for the sellers in the trial court, and the buyers appealed. The Supreme

Court, Pike, J., held that the evidence failed to sustain the defense of breach of warranty.

Judgment affirmed.


Goldwater and Singleton, of Las Vegas, for Appellants.

Denton and Smith and George F. Ogilvie, Jr., of Las Vegas, for Respondent Oncken.

Foley Bros., of Las Vegas, for Respondent Sage.

1. Corporations. In action by sellers to recover the price of stock against buyers who pleaded breach of warranty in that

financial statements of the corporation forming part of the agreement did not fairly present the financial

condition of the corporation because certain accounts carried as “accounts receivable” as prepared by

corporation's bookkeeper should have been written off as bad debts because uncollectible, evidence failed

to sustain the defense of breach of warranty.

2. Appeal and Error. Findings and judgment of the trial court supported by substantial evidence will not be disturbed.

OPINION


Appellants who were defendants in two separate actions in which respondents Oncken and

Sage, respectively, were plaintiffs, appeal from judgments for money in favor of each of the

respondents. The two actions, involving identical issues, were consolidated for purposes of

trial and also on this appeal.

Respondents Oncken and Sage, together with a third person not a party to this litigation,

owned all of the issued and outstanding corporate stock of Nevada Broadcasting Company,

Inc., a Nevada corporation, which operated a radio broadcasting station in Las Vegas,

Nevada. By written agreement of purchase and sale dated May 1, 1957 appellants agreed to

purchase all of the stock owned by each of the respondents and, upon the failure of appellants

to pay for the same within the time provided in the agreement, each respondent separately

brought suit for the sum of $2,250. The answers filed by appellants in each of the two actions�� .3�#%%�


denied the indebtedness and, by way of affirmative defense, pleaded that, by reason of a

breach by each seller of a warranty contained in the contract, appellants had been damaged in

the sum of $6,500. In addition to this affirmative defense, appellants also claimed certain

offsets due either under the contract or a letter executed by the sellers in connection

therewith.

The trial court entered a judgment in favor of Oncken as seller in the sum of $1,783.26

together with interest and costs and for an attorney's fee. An identical judgment was entered

in favor of Sage in the action brought by him.

The principal amount of the judgment entered in favor of each seller was the amount

sought to be recovered by each from appellants as the agreed purchase price of the stock,

stated in the agreement, reduced by the amount of certain offsets claimed by the purchasers

and allowed by the court.

This consolidated appeal is taken from each of those two identical judgments against

appellants and in favor of respondents Oncken and Sage, respectively. As the amount of the

offsets accorded the purchasers against the agreed purchase price of the stock is not involved

in this appeal, we are concerned solely with the affirmative defense asserted by appellants to

the effect that, by reason of a breach by each seller of a warranty contained in the contract,

appellants were damaged in an amount in excess of the amount sought by each seller as the

purchase price of his stock. More specifically the purchasers sought to establish before the

trial court that certain financial statements of the radio broadcasting corporation forming part

of the written agreement between the parties, did not fairly present the financial condition of

said corporation and had not been prepared in accordance with “generally accepted

accounting principles” as stated in the agreement. In such agreement respondents as sellers

had represented and warranted that the balance sheet of the corporation as of March 31, 1957

and the profit and loss statements for the years ending March 31, 1956 and March 31, 1957,

all of which ��


were part of the agreement, correctly and fairly represented the financial condition of the

corporation at the date of said balance sheet and the results of its operations for said years.

Further, the agreement provided that “all such financial statements have been prepared in

accordance with generally accepted accounting principles.”

In this connection appellants, as purchasers, maintained that three accounts due the

broadcasting company from Las Vegas concerns totaling $5,268.34 had been carried in a

record of “accounts receivable” dated about April 22, 1957 and prepared by the corporation's

bookkeeper, and that under generally accepted accounting principles each of said accounts

should not have been so treated and should have been written off the books of the corporation

as bad debts because each was, in fact, an uncollectible account.

The purchasers tendered evidence in support of this affirmative defense, which included

the testimony of C. E. McLaughlin, one of the purchasing group, who had been a practicing

certified public accountant in another state for many years prior to the corporate stock

transaction which is the subject matter of this appeal. McLaughlin testified that, prior to

entering into the agreement, he was familiar with the accounting procedures followed by

Rudd in preparing the March 31, 1957 financial statement, but that his knowledge of the

accounts receivable was confined to what appeared in the general ledger, showing totals only.

Other purchasers in their testimony also claimed lack of knowledge of individual accounts

receivable.

The sellers maintained that they had not breached the warranty contained in the agreement,

and that the factual status relating to each such account was such as to justify its inclusion in

the list of accounts receivable in accordance with generally accepted accounting principles.

They introduced evidence in support of such contention and also that the purchasers had been

informed concerning the collectibility of each of the accounts under discussion, as well as the

accounting ��


practices followed in the preparation of the financial statements prior to entering into the

written agreement, and that the purchasers had suffered no damage.

Merl Sage, who had been manager of this radio broadcasting station business, and one of

the sellers herein, and Mrs. Leona Mitchell, bookkeeper, both testified concerning the

examination into the financial condition of the corporation which had been made by the then

prospective purchasers prior to the signing of the contract of purchase of May 1, 1957. Sage

testified concerning his discussion with the purchasers of the accounts receivable and of their

checking into the collectibility of certain of the same as early as March 1957, and that the list

of such accounts, hereinafter referred to, prepared by the bookkeeper, had been asked for by

McLaughlin, one of the prospective purchasers. The testimony of the buyers disputed much

of this evidence, particularly as it related to their knowledge of the collectibility of the

accounts receivable of the corporation.

Upon this conflicting evidence the trial court found that, on entering into the contract, the

buyers had full and complete knowledge of the affairs of the broadcasting company and its

financial condition and the information contained in its books and records of account, and

that no misrepresentations were made by either of the respective sellers to the buyers to

induce the buyers to enter into such contract.

Included in the evidence was the list of accounts receivable above referred to, a copy of

which had been handed to purchasers about April 24, 1957, according to the testimony of the

corporation's bookkeeper and secretary who had prepared them. This list, which included the

three accounts under discussion, consisted of a total of more than 90 accounts, setting forth

the name and address and the total amount of each account, and the balance of the account as

of December 31 (1956). It also showed any sums paid on each account during the months of

January, February and March (1957). In addition, under a “remarks” column of such

tabulation, there was a brief statement characterizing the accounts' status as “see Merl” [Merl

Sage], “to be ��'�&�� '�&��'��


written off,” “out of business,” “current,” pertaining to the great majority of the individual

accounts. The contract between the parties credited a total agreed amount to the purchasers as

an allowance for doubtful accounts. However, such allowance was applied to accounts other

than the three particular accounts now under consideration. As to these three accounts, which

were the three largest carried in the list of accounts receivable, there appear in the

compilation of accounts receivable, just mentioned, statements of the following import

relating to the status of each of them: (1) referring to a debtor advertising agency account,

stated that one of its principals who had been with such agency when the indebtedness had

been incurred, was presently associated with another individual in a new advertising agency;

(2) to see the owner of the particular debtor club, naming him; (3) “Gov't. Padlocked A/C.

Failure to pay taxes. Check with Merl for latest status.”

The sellers called Jack Rudd as a witness at the trial. He was the certified public

accountant, practicing in Las Vegas, who had prepared the financial statement of the

broadcasting company dated March 31, 1957 charged by the purchasers not to have been

prepared in accordance with “generally accepted accounting principles.” This accountant

testified that his firm had not been retained to perform an audit, but had prepared the

statement from the ledger of the corporation. He also testified that he had first met

McLaughlin about February or March of 1957, before he prepared the financial statement just

mentioned, and had discussed the preparation of the March 31 financial statement with him

and also with Von Hofen. This particular financial statement became an exhibit on the

contract of purchase, and a copy was also furnished to the Federal Communications

Commission in connection with the transfer of the control of the station and its license to

purchasers. His testimony also referred to a telephone conversation which he had with

McLaughlin, prior to the signing of the contract, in which he discussed with McLaughlin the

collectibility of certain of the accounts receivable.


[Headnotes 1, 2]

In order for appellants to have sustained their affirmative defense of breach of warranty in

the trial court it was, of course, necessary that they establish that generally accepted

accounting principles had not been followed in the preparation of the particular financial

statements. McLaughlin testified that he was familiar with the accounting methods and

procedures followed by Rudd in the preparation of the statements. No objection was made to

such procedures until several months after the signing of the contract when the buyers

notified the sellers of their refusal to pay the agreed purchase price for the stock. Any

evidence before the trial court tending to show a failure to follow generally accepted

accounting principles would necessarily be found in the testimony of the three certified public

accountants. They were McLaughlin, Clifford E. Roop, and Rudd, all of whom undertook to

testify as expert witnesses. Each was asked hypothetical questions pertaining to the inclusion,

under generally accepted accounting principles, of each of the three accounts as a current

account receivable. Each such hypothetical question had as one of its elements an assumed

knowledge on the part of the accountant of the existence of tax liens filed against the

particular debtor. With this presupposed element of knowledge of tax liens having been filed

against the person owing the money interjected into each hypothetical question, each expert

witness testified in effect that, under acceptable accounting principles, the account would not

have been carried as a current account receivable as of May 1, 1957. However, Rudd, who

prepared the statement under consideration, testified that he had prepared it from material in

the corporation's general ledger. There is nothing in the record indicating that such source

from which Rudd prepared the financial statement disclosed the existence of any tax liens,

and there is a complete lack of evidence that Rudd had any knowledge of the liens at the time

that he prepared the statement. Likewise, we find no evidence in the record that generally

accepted accounting principles required Rudd to go outside and beyond ��

��


the material contained in the general ledger for the purpose of determining the existence of

any tax liens. This being true, we find a failure of proof as to any contended noncompliance

with the asserted warranty. Accordingly, the buyers having failed to introduce evidence

showing a breach of the asserted warranty, there was a failure on their part to establish such

affirmative defense to payment of the purchase price of the stock; and the findings and

judgment of the trial court in favor of each respondent, supported by substantial evidence,

will not be disturbed. Goldsworthy v. Johnson, 45 Nev. 355, 363; 204 P. 505, 507. Judgment

in favor of each respondent affirmed.

McNamee, C. J., and Badt, J. concur.

____________

��76 Nev. 239, 239 (1960) Conforte v. Hanna��

JOSEPH CONFORTE, Also Known as JOE CONTE, Petitioner, v. THE HONORABLE

RICHARD R. HANNA, Judge of the First Judicial District Court of Nevada, in and for the

County of Storey; CECIL J. MORRISON, Sheriff of Storey County; URSULA MacHENRY,

County Clerk of Storey County; ROBERT H. MOORE, District Attorney of Storey County,

Respondents.

No. 4303

April 28, 1960 351 P.2d 612

Original proceeding in certiorari to review action of respondent court in adjudging

petitioner guilty of contempt for failure to comply with an order to abate a nuisance. The

Supreme Court held that where district court had entered judgment permanently enjoining

petitioner from operating a house of prostitution, declaring premises a nuisance and ordering

abatement of the same, based on affidavit of deputy sheriff showing personal service of

summons in action and of temporary restraining order upon petitioner, and thereafter upon �� ,��


showing that nuisance had not been abated district court issued order to show cause why

petitioner should not be punished for contempt in failing to comply with injunction and order

of abatement, district court had jurisdiction to adjudge petitioner guilty of contempt,

notwithstanding affidavit of petitioner and affidavits and testimony of others attacking service

of summons and temporary restraining order.

Petition for writ of certiorari dismissed.

(Petition for writ of certiorari was denied by the Supreme Court of the United States

October 10, 1960.)

Gordon W. Rice, of Reno, for Petitioner.

Roger D. Foley, Attorney General, and Robert H. Moore, District Attorney, Storey

County, for Respondents.

Nuisance.

Where district court entered judgment permanently enjoining petitioner from operating house of

prostitution, declaring premises involved a nuisance and ordering abatement of the same, on affidavit of

deputy sheriff showing personal service of summons in action and temporary restraining order upon

petitioner, and thereafter upon showing that nuisance had not been abated, issued order directing

petitioner to show cause why he should not be punished for contempt, district court's finding that

affidavits of petitioner and others and oral testimony of process server were not sufficient evidence to

overcome the presumption of validity of the affidavit of service of summons was proper, and district

court had jurisdiction to adjudge petitioner guilty of contempt.

OPINION

Per Curiam:

Petition for writ of certiorari to review action of respondent court in adjudging petitioner

guilty of contempt for failure to comply with an order to abate a nuisance.

In 1957 the District Court of the First Judicial District in and for the county of Storey

entered a judgment permanently enjoining the petitioner herein from operating a house of

prostitution, declaring the premises ��


involved a nuisance, and ordering abatement of the same. The affidavit of Robert L. Peek, a

deputy sheriff, showed personal service of the summons in said action and of the temporary

restraining order upon petitioner Joseph Conforte in Storey County on November 26, 1956.

Petitioner made no appearance in said action and his default therein was entered.

Thereafter upon a showing that the said nuisance had not been abated and that the said

petitioner was continuing to use said premises as a house of prostitution, the said district

court on February 3, 1960 issued an order directing petitioner to show cause why he should

not be punished for contempt in failing to comply with said injunction and the order of

abatement.

Conforte and his counsel were present at the time and place specified in said

last-mentioned order and by special appearance moved to dismiss the contempt proceedings,

supporting his motion by the affidavits of Conforte, one Salley E. Burgess, apparently one of

the girls on said premises, and said Robert L. Peek. The Conforte and Burgess affidavits

stated that Conforte was not served with summons as shown on the return of summons, the

Conforte affidavit saying that at the stated time he was not in Storey County, and the Burgess

affidavit saying that Conforte was not on “said premises” on the particular day. The Peek

affidavit stated that at the time of service of summons, service was made “on a person then

believed by me to be Joseph Conforte or Joe Conforte. Since said 16th and 26th days of

November, 1956, I have become acquainted with Joseph Conforte, also known as Joe

Conforte, and I am not certain whether I made said service on the person I know now to be

Joseph Conforte, also known as Joe Conforte, or upon some other person who was then in the

premises affected by this litigation.”

At the hearing on said motion to dismiss the order to show cause, with Honorable Richard

R. Hanna, District Judge, presiding, in addition to the record of the case from which said

order had issued and the said three affidavits in support of the motion, petitioner called said

Peek as a witness. In open court he testified that in ��12#3�� -�� ,��+ ��)��-�� -�� 0�� )��&5�� =��0��,��+��)�� A�A�A�'


November 1956 he made the affidavit of service of summons in good faith; that he had gone

to the said premises and asked the man who came to the door if he were Joseph Conforte; that

when the man answered affirmatively he handed him the summons; that now, more than three

years later, he couldn't say one way or the other whether the person served was Conforte.

“After these years I wouldn't know whether Joe Conforte was this man * * *.” Based on such

evidence, the motion to dismiss was denied.

Thereupon petitioner and his client refused to participate in any further hearing on the

order to show cause. The court then proceeded to hear evidence in support of the charges

against petitioner and finding them to be true adjudged petitioner guilty of contempt.

A perusal of the record before us discloses that the original judgment enjoining petitioner

was based on proper service of summons thereby giving the court jurisdiction to enter said

judgment. Evidence to impeach said judgment consisted of affidavits made more than three

years later and also the oral testimony of the process server. The nature of this evidence has

already been disclosed. The court apparently was skeptical of all such impeaching evidence

and in denying the motion to dismiss relied upon the original affidavit of personal service.

Certainly this court cannot say that Judge Hanna acted improperly in failing to give

credence to the self-serving affidavit of Conforte, the affidavit of a woman frequenting such

type of premises, and the uncertain affidavit and oral testimony of the process server

attempting to relate facts occurring more than three years before, or that Judge Hanna acted

improperly in failing to hold that the weight of such evidence was sufficient to overcome the

presumption in favor of the validity of the affidavit of service of summons. Chader v.

Wilkins, 226 Iowa 417, 284 N.W. 183; Couch v. International Brotherhood of Teamsters,

Okl., 302 P.2d 117; Jones v. Reser, 61 Okl. 46, 160 P. 58.

The judgment being valid on its face, and the respondent court's determination that the

evidence offered for ��


the purpose of impeaching said judgment was insufficient to overcome the legal presumption

of its validity, we must necessarily hold that the court had jurisdiction to hear and determine

the contempt proceedings.

Petition for writ of certiorari dismissed.

____________

��76 Nev. 243, 243 (1960) Zubieta v. Tarner��

FRANK ZUBIETA, Appellant, v.

ADA M. TARNER, Respondent.

No. 4204

May 6, 1960 351 P.2d 982

Appeal from the Second Judicial District Court, Washoe County; Clel Georgetta, Judge,

Dept. No. 3.

Statutory action to quiet title to land included in deeds to both plaintiff and defendant, on

theory that plaintiff had acquired title thereto by adverse possession. From judgment of the

trial court for plaintiff, defendant appealed. The Supreme Court, McNamee, C. J., held that

evidence sustained finding of adverse holding by plaintiff, and that payment by plaintiff of

taxes on property for requisite period was a sufficient compliance with statutory requirement

that she pay all taxes of every kind levied or assessed and due against property, although

taxes on entire area in dispute were assessed to each party and each party paid amount so

assessed to him.

Affirmed.


Goldwater, Taber and Hill, of Reno, for Respondent.

1. Adverse Possession. In statutory action to quiet title to land included in deeds to both plaintiff and defendant on theory of

adverse possession by plaintiff, there was substantial evidence to support trial court's finding that plaintiff

had actual, exclusive and adverse possession of property continuously for more than required period of

time. NRS 40.090 to 40.120.


2. Adverse Possession. Under statute providing that to establish title by adverse possession one must have paid all taxes of every

kind levied or assessed and due against property during period of five years next preceding filing of

complaint, the number of times land may have been assessed to and taxes paid by other parties than holder

of land was immaterial, and where strip of land was included in deeds to both plaintiff, who had possession

under claim of title, and defendant, and same property was assessed to both of them and both paid all taxes

levied against property assessed to them, payments by plaintiff were sufficient compliance with statute.

NRS 40.090, subd. 1.

3. Adverse Possession. Personal property taxes and water taxes assessed against owner of real property, although a lien upon all

of such owner's real property, are not taxes levied or assessed and due against property within statute

providing that all taxes of every kind levied or assessed and due against property must have been paid by

adverse claimant for given period of time in order to acquire title by adverse possession. NRS 40.090,

subd. 1.

OPINION


This is a statutory action 1 to quiet title to .4 acre of land in Washoe County, Nevada. The

parcel results from overlapping of descriptions in the deeds to respondent and to appellant

and to his predecessors in interest.

Respondent and her husband acquired 9.5 acres of land which embodied said disputed .4

acre from one Wogan in 1915. The metes and bounds description in the deed located the

south and east boundary of the land along the north and west bank of the North Truckee

Irrigation Ditch. The respondent and her husband moved on the land in 1916, at which time a

survey was made and a fence erected along said boundary line on the north and west bank of

said ditch. In 1919 they acquired an adjoining 9.5 acres. From 1916 to the commencement of

this action the property was occupied and used by respondent, her husband, and their lessee in

the operation of a dairy, for grazing and pasturing cattle, ��

____________________

1

The action is brought pursuant to the provisions of NRS 40.090, 40.100, and 40.110. The remedy provided

by these provisions is cumulative and is not exclusive of the remedy which a district court in this state,

exercising equity jurisdiction, may allow. NRS 40.120.


for training hunting dogs, and for raising fish. The fence was still standing and in existence at

the time of the trial.

In 1932 appellant purchased land lying south and east of the North Truckee Irrigation

Ditch. The description in appellant's deed is by lot and block number in the Prater Addition to

Sparks, Nevada. That the description in appellant's deed overlapped the description in

respondent's deed to the extent of said disputed .4 acre was unknown to the parties until a

survey was made in 1956. Prior to this survey appellant asserted no claim to the disputed area

and recognized respondent's right of possession to all land on her side of the fence.

Appellant's chain of title extends back to 1907, some eight years prior to the

commencement of respondent's chain of title.

During the periods of their ownership both appellant and respondent or their privies paid

all taxes assessed against the property described in their deeds with the result that there was a

double assessment and double payment of taxes with respect to said .4 acre.

From the foregoing and other evidence the lower court found that respondent was the

owner of the disputed parcel and entered judgment quieting her title to the same against

appellant. This appeal is from said judgment.

The only issue involved herein is whether respondent had met the statutory requirements

of adverse possession.

Subsection 1 of NRS 40.090 provides: “An action may be brought to determine the

adverse claims to and clouds upon title to real property by a person who, by himself, or by

himself and his predecessors in interest, has been in the actual, exclusive and adverse

possession of such property continuously for more than 15 years prior to the filing of the

complaint, claiming to own the same in fee, or by any other freehold estate, against the whole

world, and who has by himself or his predecessors in interest, paid all taxes of every kind

levied or assessed and due against the property during the period of 5 years next preceding the

filing of the complaint. The �� '


action shall be commenced by the filing of a verified complaint averring the matters above

enumerated.”

[Headnote 1]

The question of whether or not respondent and those in privity with her had actual,

exclusive and adverse possession of said property continuously for more than 15 years prior

to the filing of the complaint was a question of fact resolved against the appellant by the trial

court. There is substantial evidence to support that court's finding in this regard.

Even if such be true, appellant maintains that respondent did not claim more land than that

which originally she and her husband were legally entitled, and consequently for the required

period of 15 years they did not claim “to own the same in fee.” This assertion is based on the

testimony of respondent that her intention was to claim only the land that legally belonged to

her and her husband. From other testimony of the respondent it appears, and the trial court so

found, that during the entire period of her possession she claimed all of the land she held in

possession, which was the same land described in her deed and enclosed within her fence.

This assertion of appellant is therefore without merit.

Appellant's chief ground for reversal appears to be his contention that respondent did not

pay all of the taxes levied against the property during the period of five years next preceding

the filing of the complaint.

[Headnote 2]

It is conceded that respondent and her privies paid all the taxes levied against the property

which were assessed to them, but appellant argues that inasmuch as there was double taxation

on the said .4 acre, respondent has not paid the taxes on the .4 acre which were assessed to

appellant and therefore she has not paid “all taxes of every kind levied or assessed and due

against the property” as required by NRS 40.090.

A similar question was before the California Supreme Court in the case of Cavanaugh v.

Jackson, 99 Cal. 672, 34 P. 509. There in a suit for the recovery of real property, the

defendant set up title by adverse possession for ��


the time prescribed by statute. The California statute like the Nevada statute provided that the

party in adverse possession must pay all the taxes which have been levied and assessed upon

such lands. The same land in that case was assessed each year both to plaintiff and defendant

and as a result of such assessments both parties paid the amounts of their respective

assessments. The court affirmed the judgment in favor of defendant and in its majority

opinion said:

“As an element entering into the creation of defendant's title, the payment of all taxes

levied upon the land during the five years' term of occupation is necessary, but it was never

intended by the lawmaking power that he should pay the taxes for any stated year more than

once. Having had the land assessed to him, and having paid the taxes levied thereon, we think

he has fulfilled the conditions of the statute, and that it is immaterial as to the number of

times the land may have been assessed to, and the taxes paid by, other parties. * * * Illinois

has a provision of law quite similar to the one under present investigation, and it is there held

(Bolden v. Sherman, 101 Ill. 489) that, in case of double payment of the taxes for any one

year, priority of payment prevails. * * * But in Brown v. Clark, 89 Cal. 196, 26 Pac.Rep. 801,

this court declined to follow that rule, and neither are we, in the present case, willing to hold

that priority of payment by the true owner of itself nullifies the time which has actually run,

and starts anew the statute. We see no great necessity for the enactment of the provision in the

first instance. If for the purpose of giving notice to the true owner that, perchance, an adverse

claimant has appeared upon the scene, his payment of the taxes as notice of that fact is

entirely insignificant when compared to the circumstance of his open and notorious

possession of the land. Whatever may be the object and purpose of the law, it should receive

a reasonable construction, and to hold that priority of payment by the true owner of itself

defeats the occupant's plea of the statute of limitations would be an unreasonable

construction. If such were the law, upon the first day that taxes became due and payable �� 0 ��


it would result in a scramble at, or a race to, the tax collector's office by the respective parties

to secure priority of payment. The destruction of old titles and the creation of new ones would

thus be dependent upon the strongest man or fleetest horse.” Accord: Owsley v. Matson, 156

Cal. 401, 104 P. 983; Cummings v. Laughlin, 173 Cal. 561, 160 P. 833; Pereira Farms

Corporation v. Simas, 69 Cal.App. 159, 230 P. 976; Bell v. Germain, 12 Cal.App. 375, 107 P.

630; Kendrick v. Klein, 65 Cal.App.2d 491, 150 P.2d 955; Hobson v. Miller, 64 N.M. 215,

326 P.2d 1095.

There has been some criticism of the decision in the Cavanaugh case (Commercial Nat.

Bank v. Schlitz, 6 Cal.App. 174, 91 P. 750; Carpenter v. Lewis, 119 Cal. 18, 50 P. 925) but it

is now settled law in California, the conflict that existed in prior decisions having been

resolved in Owsley v. Matson, supra, which held that the adverse claimant's compliance with

the applicable statute depends only upon a showing that he paid the taxes for the years in

question, and that a prior or subsequent payment by the legal owner is of no consequence.

We are in accord with the decisions in the Cavanaugh and Owsley cases. It must be noted,

however, that these two cases as well as the present case involved a double assessment as

well as a double payment. We express no opinion at this time whether the holdings in those

cases, insofar as the priority rule of payment is concerned, would be applicable to cases of a

single assessment with double payment of taxes. See 20 Calif. L. Rev. 436-438 (1931-1932).

[Headnote 3]

Appellant further contends that because NRS 40.090 required respondent to have paid all

taxes of every kind levied or assessed and due against the property during the five-year

period, and since the evidence showed that during this period personal property taxes and

certain water taxes were assessed against appellant and not paid by respondent and that such

taxes became a lien �� 0 �� &�� '


against appellant's real property, such personal property taxes and water taxes were “levied or

assessed and due against the property.” However, we reject the contention that the statutory

requirement that the respondent pay all taxes of every kind levied or assessed and due against

the property includes the taxes on appellant's personal property and the water tax assessed for

the use of water on other property of appellant. Such personal property and water taxes were

not levied or assessed against the real property. That they became a lien upon all of

appellant's real property amounts to nothing more than providing a better or surer method of

collection.

Judgment affirmed.


____________

��76 Nev. 249, 249 (1960) Heidenreich v. District Court��

HENRY E. HEIDENREICH and MINNIE E. HEIDENREICH, His Wife, Petitioners, v. THE

SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the

County of Washoe, and the HONORABLE CLEL GEORGETTA, District Judge,

Respondents.

No. 4305

May 13, 1960 352 P.2d 249

Original petition for writ of certiorari to review order of District Court, in proceeding to

condemn land for highway purposes, awarding immediate possession of premises in which

petitioners owned an interest, without bond, upon pledge of public faith and credit of the

state. The Supreme Court, Badt, J., held that pledge of public faith and credit of state was

enforcible against the state by the court determining the damages in condemnation action and,

if necessary, issuing mandate that they be �� ,��


paid, and thus the order did not amount to a taking without just compensation being secured.

Writ denied.

Ernest S. Brown and Jack I. McAuliffe, of Reno, for Petitioners.


Attorneys General, for Respondents.

1. Eminent Domain. Order of district court, in proceedings to condemn land for highway purposes, awarding department of

highways immediate possession of premises, without bond, upon pledge of public faith and credit of the

state, was not a taking of the land without just compensation being secured, in view of fact that the pledge

of public faith and credit was enforcible against the state in the event the state should abandon the

condemnation by court in the condemnation action by determining damages for the possession and entering

judgment which could be enforced by mandamus in the event of state controller's refusal to issue his

warrant upon the state treasurer. Const. art. 1, § 8; art. 4, § 19; NRS 37.009 et seq., 37.080-37.120,

37.100, subds. 1-7, 37.180 and subd. 2, 408.970 and subd. 4, 408.975.

2. Eminent Domain. A state which has instituted and voluntarily made itself party to a condemnation proceeding cannot

deprive the owner of land being condemned of compensation by dismissal after possession has been taken.

Const. art. 1, § 8; art. 4, § 19; NRS 37.009 et seq., 37.100, subds. 1-7, 37.120, 37.180, and subd. 2,

37.080-37.120, 408.970 and subd. 4, 408.975.

3. States. Constitutional provision that no money shall be drawn from state treasury except in consequences of

appropriations made by law would not bar the protection of citizens against abuse of power of eminent

domain, and would not prohibit state controller from issuing his warrant to pay damages assessed by court

in proceedings for condemnation of land for highway purposes. Const. art. 1, § 8; art. 4, § 19; NRS

37.009 et seq., 37.100, subds. 1-7, 37.120, 37.180, and subd. 2, 37.080-37.120, 408.970 and subd. 4,

408.975.

4. Eminent Domain. District Court, in awarding department of highways immediate possession of land condemned for

highway purposes upon the faith and credit of the state without first determining damages occasioned

thereby to owners of land, did not act in excess of its jurisdiction, as requirement for first finding and

determining damages is only for the purpose of determining amount of bond to be fixed by court. Const.

art. 1, § 8; art. 4, § 19; ��"/�%%2��


NRS 37.009 et seq., 37.100, subds. 1-7, 37.120, 37.180, and subd. 2, 37.080-37.120, 408.970 and subd.

4, 408.975.

OPINION


Petitioners seek a writ of certiorari to review the action of the respondent district court in

entering an order for the immediate occupancy of the premises in which petitioners own an

interest, in a proceeding in eminent domain. Such proceeding was commenced by the State of

Nevada on relation of its Department of Highways seeking to condemn the land for highway

purposes. The order of immediate occupancy was supported by the pledge of the public faith

and credit of the State of Nevada for the payment of damages, in lieu of bond.

The main question of law presented is whether the order, based upon such pledge, is

sufficient to satisfy the requirement of Article 1, section 8, of the Nevada constitution,

reading as follows: “nor shall private property be taken for public use without just

compensation having been first made, or secured * * *.”

It is the contention of petitioners that the mere pledge of the full faith and credit of the

state is not such security as contemplated by the constitution, in that there is no adequate

provision for enforcing the pledge.

To substantiate the contention that no adequate provision has been made for enforcing the

pledge, petitioners assert (1) that it cannot be enforced by writ of execution (State ex rel.

Department of Highways v. Olsen, 75 Nev. 75, 334 P.2d 847); (2) that it cannot be enforced

by mandamus against the state treasurer or state controller to compel the payment of

unliquidated damages (State ex rel. Davis v. Eggers, 29 Nev. 469, 91 P. 819, 16 L.R.A., N.S,

630); (3) nor can it be enforced by an action against the state in absence of its waiver of its

sovereign immunity from suit. Determination of these questions requires an examination of

the statutes involved.

Provisions concerning the exercise of the right of ��"/�


eminent domain are contained in NRS, chapter 37. Provisions for obtaining an order

permitting occupancy pending entry of judgment are for the most part contained in NRS

37.100, although other sections of the chapter bear directly upon the matter under

consideration. Subsection 1 of section 37.100 permits the plaintiff to move for an order

permitting such occupancy. Subsection 2 requires the court or judge to take proof and to grant

or refuse the motion according to the equity of the case and the relative damages which may

accrue to the parties. Subsection 3 requires the filing of a bond in a penal sum to be fixed by

the court conditioned to pay the adjudged value of the premises, all damages in case the

property is condemned, “and to pay all damages arising from occupation before judgment in

case the premises are not condemned * * *.” Subsection 4 permits the deposit of money in

court in lieu of bond and provides for manner of withdrawal thereof by the defendant, etc.

Subsection 5 provides that the amount fixed for the bond or the deposit shall be only for the

purposes of the motion for an order of immediate occupancy and shall not be admissible in

evidence on final hearing. Subsection 6 permits the court to restrain the defendant from

interfering with the plaintiff's occupancy. Subsection 7 reads: “The provisions of this section

requiring the execution and filing of a bond shall not apply in any action or proceeding in

which the State of Nevada is the plaintiff, but the public faith and credit of the State of

Nevada is hereby pledged as security in lieu of the bond.”

NRS 37.180 provides that the plaintiff may abandon the condemnation proceedings upon

notice and motion, upon which judgment may be entered dismissing the proceeding and

awarding the defendants their costs and disbursements, including expenses incurred in

preparing for trial and reasonable attorney fees. Subsection 2 of this section reads: “If the

plaintiff has been placed in possession of the premises under the provisions of NRS 37.100 to

37.170, inclusive, the defendant is entitled to all damages arising from such occupancy.”


[Headnote 1]

Petitioners assert that section 37.180 presents no procedure to determine the amount of

damages to which they are “entitled,” or how they may receive or recover it. We may assume

as contended by petitioners, that mandamus against the state controller to issue his warrant in

any sum upon such an unliquidated claim would not lie. However, we see no reason why the

amount of petitioners' damages, on abandonment by the state of its condemnation proceeding

and surrender of the occupied premises, should not be determined by the same court in the

same action, resulting in a judgment for a precise amount in favor of petitioners, which would

be recognized by the state controller by the issuance of his warrant upon the state treasurer,

and which would, in the event of the state controller's refusal, be enforced by mandamus.

State ex rel. Decker v. Yelle, 191 Wash. 397, 71 P.2d 379; State ex rel. Peel v. Clausen, 94

Wash. 166, 162 P. 1. NRS, chapter 37, is replete with provisions indicating that all damages

accruing to petitioners by reason of the condemnation shall be determined by the court in that

same proceeding. 1

In Guaranty Loan & Trust Co. v. Helena Improv. Dist. No. 1, 148 Ark. 56, 228 S.W. 1045,

the court said: “[A]n order permitting the appellee as plaintiff to voluntarily �� A�A�A��

____________________

1

Section 37.009, in defining the terms used in the chapter, says that “judgment” means the judgment

determining the right to condemn property “and fixing the amount of compensation to be paid by the plaintiff.”

Section 37.080 provides for the appearance of any persons having an interest in “the damages for the taking.”

Section 37.090 defines the power of the court or judge in the proceeding, among other things, to hear and

determine all claims to the damages to the property sought to be condemned. Section 37.100 permits the

pledging by the plaintiff of the public faith and credit of the state as security in lieu of the bond, which is

conditioned, among other things, “to pay all damages arising from occupation before judgment in case the

premises are not condemned * * *.” Section 37.110 requires the court, jury, commissioners, or master to take

testimony, ascertain and assess, not only the value of the property sought to be condemned, but the damages

resulting from the severance or damages resulting even if no part of the property is taken. Section 37.120 defines

when such damages are deemed to accrue. Section 37.180, as above noted, provides in general terms that if the

plaintiff has been placed in possession, “the defendant is entitled to all damages arising from such occupancy.”


dismiss the action * * * was erroneous. Under the statute referred to, the party seeking the

condemnation of property cannot withdraw from the proceedings after having taken

advantage of the process of the court to obtain possession of the land. The owner had, on

demand, the right to a trial for the purpose of recovering damages, and this right is given in

that action without having to institute a separate action for that purpose.”

It is therefore clearly evident to us that, despite absence of any express provision in NRS

37.180 as to the precise procedure under which the condemnees might call up for hearing and

determination the amount of damages suffered by them by reason of the occupancy of the

condemnor, in the event of any abandonment of the proceedings by the condemnor, the

setting of this issue for hearing could be compelled by the court.

With the availability then of liquidating the damages of petitioners and the consequent

availability of mandamus if the state controller should refuse to recognize the solemn

judgment of the court, we are satisfied that petitioners' main contention is without merit. Nor

should we fail to remark that even if a bond were given, there would still have to be an

ascertainment of the damages, if any, in the event condemnation should ultimately be denied,

or in the event the proceedings should be abandoned.

[Headnote 2]

None of these procedures would necessitate an action against the state and so the question

of the sovereign immunity from suit need not be considered. 2 This conclusion is further

reinforced by the fact that when the state has initiated and voluntarily made itself a party, not

only to the condemnation it sought but to the fixing of the damages resulting therefrom, it has

thus voluntarily made itself plaintiff as to one phase of the litigation and defendant as to

another phase and cannot be ��

____________________

2

But see NRS 408.975 permitting the filing of a claim for damages with the state highway department, the

payment thereof, if approved, out of the state highway fund, and permitting any person aggrieved by an adverse

determination to commence an action for the recovery thereof.


heard to assert that it may remain in court in the one capacity but withdraw in the other.

Moyle v. Salt Lake City, 111 Utah 201, 176 P.2d 882, 887. The court there said, citing

authorities, “Under general principles, as well as under our statute, the condemnor cannot

deprive the owner of compensation by dismissal after possession has been taken.” See also

Guaranty Loan & Trust Co. v. Helena Improv. Dist. No. 1, supra.

[Headnote 3]

Petitioners assert however that they are still without adequate remedy; that the state

controller would be prohibited from issuing his warrant to pay the damages awarded by the

court by reason of the provisions of Article 4, section 19, of the state constitution, reading as

follows: “No money shall be drawn from the treasury but in consequence of appropriations

made by law.” State ex rel. Davis v. Eggers, 29 Nev. 469, 91 P. 819, 820, 16 L.R.A., N.S.,

630, upon which reliance is placed in support of this contention, is not in point. It is true that

this court denied mandamus in that case so far as concerned the payment of the unliquidated

and unlimited traveling expenses of the chairman of the State Industrial and Publicity

Commission created by the legislature, but it did direct the issuance of a writ of mandate

compelling the state controller to draw his warrant upon the state treasurer in favor of the

plaintiff for his salary. 3 In State ex rel. Decker v. Yelle, 191 Wash. 397, 71 P.2d 379, 380,

the Supreme Court of Washington found no inconsistency between the constitutional

restrictions against withdrawal of moneys from the treasury other than by appropriation made

by law, on the one hand, and that provision, on the other hand, &� �� '��

____________________

3

We do not deal at length with the opinion in State v. Eggers, but since it deals with Article 4, section 19, of

the constitution prohibiting money to be drawn from the treasury, “but in consequence of appropriations made

by law,” and since it contains expressions to the effect that “all appropriations must be within the legislative

will,” we refer to NRS 408.970 under whose provisions the state highway department is authorized to acquire

privately owned property necessary for highway construction and to exercise, on behalf of the state, the power of

eminent domain for the purpose. Subsection 4 provides that the cost thereof “shall be paid out of the state

highway fund.”


“essential to the existence of free government,” that private property may not be appropriated

for public use without just compensation. We agree with that court's conclusion that, while

respecting the reservation to the legislature of the exclusive power of deciding how, when,

and for what purpose public funds should be used by governmental agencies in carrying on

the state's business, it was never intended that such provision should be a bar to the protection

of the citizens against the abuse or misuse of the power of eminent domain, an inherent

attribute of the state's sovereignty, by appropriating the citizen's property and then remitting

him to succeeding legislatures for compensation.

[Headnote 4]

Petitioners further contend that the respondent court acted in excess of its jurisdiction in

granting the state the right to immediate entry and possession without first finding and

determining the damages occasioned thereby to petitioners, and that in such respect the court

disregarded the requirements of NRS 37.100, subsection 2. This requirement however is only

for the purpose of determining the amount of bond to be fixed by the court, and is not

applicable where the public faith and credit of the state are pledged as security in lieu of

bond.

The petition for certiorari is denied and the proceedings are dismissed.


____________

��76 Nev. 257, 257 (1960) Nelson v. Sierra Construction Corp.��

HERBERT E. NELSON and WALLACE R. NELSON, Appellants, v. SIERRA

CONSTRUCTION CORPORATION, a Nevada Corporation, Respondent.

Nos. 4262 and 4263

May 16, 1960 352 P.2d 125

Appeals from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,

Department No. 2.

Proceedings wherein motions were made to dissolve attachments. The trial court refused

to dissolve attachments and movants appealed. The Supreme Court, McNamee, C. J., held

that where reviewing court did not know what evidence was considered by lower court,

reviewing court would assume that lower court's conclusion was supported by competent

evidence.

Affirmed on both appeals. [Reporter's note: Petition for writ of certiorari was denied by the Supreme Court of the United States

November 7, 1960.]

Morton Galane, of Las Vegas, for Appellants.

Morse, Graves and Compton and James H. Phillips, of Las Vegas, for Respondent.

Appeal and Error.

Where reviewing court did not know what evidence was considered by lower court prior to issuing

order refusing to dissolve an attachment, reviewing court would assume that lower court's conclusion was

supported by competent evidence. Dstrict Court Rules, rule 20.

OPINION


Two cases of the same title have been consolidated for oral argument on appeal. The

questions involved pertain to each case except as hereinafter noted.

Appeal is from an order refusing to dissolve an attachment.

In case number 4262 the court had personal jurisdiction over appellants by reason of their

appearance in ��


said action. They made the following three motions in the court below:

1. Motion to quash the levy of a writ of attachment, filed October 5, 1959;

2. Motion to dissolve, vacate, and discharge the attachment and garnishment purportedly

levied by service on Nevada Savings and Loan Association on April 15, 1959, filed October

22, 1959;

3. Motion to dissolve, vacate, and discharge the attachment and garnishment purportedly

levied by service on Nevada Savings and Loan Association on October 19, 1959, filed

October 22, 1959.

The grounds for motion number 1 were (a) the sheriff failed to serve upon the Nevada

Savings and Loan Association a notice that the debts owing by it to appellants or the credits

or other personal property in possession or under its control belonging to the defendants were

attached in pursuance of said writ as required by subsection 4 of NRS 31.060; (b) the sheriff

failed to serve upon the Nevada Savings and Loan Association a notice stating the stock or

interest of the defendants was attached in pursuance of the writ of attachment as required by

subsection 3 of NRS 31.060; (c) the sheriff failed to actually seize stock certificates, and the

certificates had not been surrendered to Nevada Savings and Loan Association and their

transfer by the holder had not been enjoined as required by NRS 79.170; (d) the contract

whereby Nevada Savings and Loan Association would pay cash for the stock of the

defendants was not attachable.

The grounds for motion number 2 were (a) the amount payable to appellants by Nevada

Savings and Loan Association under contract contemplates a cash transaction not a

debtor-creditor relationship and was not subject to attachment and garnishment; (b) the

sheriff in serving the writ of attachment on Nevada Savings and Loan Association failed to

accompany it with any notice that the debts owing by it to the appellants or the credits or

other personal property in its possession or under its control belonging to the defendants were�� -�:�;�� >��5 �� ,�� -�:�;�� $�� ,�� >��5 �� -�:�;�C��7�


attached in pursuance of said writ of attachment; (c) the sheriff served a writ of attachment to

Nevada Savings and Loan Association but failed to accompany it with any notice stating that

the stock or interest of the defendants was attached in pursuance of said writ of attachment;

(d) the sheriff failed to actually seize any of the stock certificates and the certificates had not

been surrendered to the Nevada Savings and Loan Association and their transfer by the holder

have not been enjoined; (e) Marilynn D. Nelson and Mary Virginia Nelson were not joined as

parties defendant in the main action and the records of the Nevada Savings and Loan

Association indicate that they have an interest as joint tenants in the stock purportedly levied

upon.

The grounds for motion number 3 were (a) the amount payable by Nevada Savings and

Loan Association under contract contemplates a cash transaction not a debtor-creditor

relationship and is not subject to attachment and garnishment; (b) the sheriff failed to actually

seize any of the stock certificates and the certificates had not been surrendered to Nevada

Savings and Loan Association and their transfer by the holder had not been enjoined; (c)

Marilynn D. Nelson and Mary Virginia Nelson were not joined as parties defendant in the

main action and the records of the Nevada Savings and Loan Association indicate that they

have an interest as joint tenants in the stock purportedly levied upon.

In case number 4263 appellants were not personally served in this action and entered no

general appearance therein. By special appearance they filed a motion to dissolve, vacate, and

discharge the attachment and garnishment purportedly levied by service on Nevada Savings

and Loan Association on October 19, 1959.

The grounds for the motion in this case were (a) the amount payable to appellants by

Nevada Savings and Loan Association under contract contemplated a cash transaction not a

debtor-creditor relationship and is not subject to attachment or garnishment; (b) the sheriff

failed to actually seize any of the stock certificates and the certificates had not been

surrendered to Nevada �� >��5 �� -�:�;�C��7�


Savings and Loan Association and their transfer by the holder had not been enjoined; (c)

Marilynn D. Nelson and Mary Virginia Nelson were not joined as parties defendant in the

main action and the records of the Nevada Savings and Loan Association indicate that they

have an interest as joint tenants in the stock purportedly levied upon.

The three motions in case number 4262 and the one motion in case number 4263 were

consolidated for argument in the lower court and all four motions were denied on October 26,

1959 and a written order to this effect was filed in the cases. Appeal in each case is from “the

order refusing to dissolve an attachment made and entered on the 26th day of October 1959.”

The statutory grounds for discharge of attachment are found in NRS 31.200 which reads as

follows:

“1. The defendant may also, at any time before trial, apply upon motion, upon reasonable

notice to the plaintiff, to the court in which the action is brought or to the judge thereof, for a

discharge of the attachment on the following grounds:

(a) That the writ was improperly issued.

(b) That the property levied upon is exempt from execution.

(c) That the levy is excessive.

“2. If the court or the judge thereof on the hearing of such motion shall find that any of the

grounds stated in subsection 1 exist, the attachment and levy thereof shall be discharged. If

the motion is based upon paragraph (c) of subsection 1 only, and the same is found to exist,

the discharge of attachment shall be only as to the excess.”

It is apparent from the foregoing that none of the grounds stated in appellants' several

motions for discharge of attachment was one of the statutory grounds specified in NRS

31.200. Each of the grounds upon which the motions were based pertains to the improper

levy of the writ as distinguished from an improper issue thereof.


The record on appeal does not contain any of the proceedings which took place at the

hearing on said motions other than the oral decision of the court wherein the learned judge

thereof stated:

“I think the argument is highly technical. I think the transaction by the letters is a closed

transaction. I think now the stock belongs to the Nevada Savings and Loan Association. I

think they would have a right to transfer that stock on their books whether they had actual

possession of the stock certificate or not.

“I think when the Nelsons made that offer to sell the stock to the Nevada Savings and

Loan Association and Nevada Savings and Loan Association has by Resolution on their

minutes accepted it that transaction became closed.

“The only difference would be the payment of the money. So, they wrote a check but they

could not pay the money because it was attached; so, inasmuch as it was a closed transaction I

think the money was attachable.

“Now, the next question is whether or not the writ of attachment contains a sufficient

allegation as to owing the debt and I think it is a rule you have to comply with the law in

every respect.

“The law is highly technical. I think the Association holds the money now that belongs to

the Nelsons.

“I cannot see any sufficient grounds to discharge or dissolve the attachment.

“Was the writ improperly issued? I don't think so.

“Was the property levied upon exempt from execution? There was nothing shown as to an

exemption.

“Was the levy excessive? Nothing was shown.

“So the motion to quash the levy or writ of attachment and the motion to dissolve and

vacate and discharge the attachment and garnishment purportedly levied by service on

Nevada Savings and Loan Association be denied.”

What evidence was considered by the court, if any at all, in support of or in opposition to

the grounds upon which appellants' motions were based does not appear ��


from the record. We have only the court's bald statement in said decision, to wit, “I cannot see

any sufficient grounds to discharge or dissolve the attachment.” 1

Whether it would have been proper for the court below on a motion for discharge of

attachment to grant a discharge on grounds other than the three statutory grounds is a question

unnecessary for us to decide on these appeals. The court refused to grant the motions and

nothing appears in the records on appeal from which this court can determine that error was

committed.

On the oral argument herein, counsel for respondent conceded that the purported levy on

the stock was ineffectual because the stock certificates were not seized by the officer making

the levy or surrendered to Nevada Savings and Loan Association which issued it, or the

holder had not been enjoined, as required by NRS 79.170, but this concession loses

significance in view of the lower court's decision that Nevada Savings and Loan Association

was the owner of the stock and that the purchase price therefor in the hands of said

association at the time of the levy was attachable.

We do not know what evidence was considered by the lower court which resulted in this

conclusion and in the absence thereof we must assume that the lower court's conclusion was

supported by competent evidence. State ex rel. Lyon v. Lyon, 75 Nev. 495, 346 P.2d 709.

The order appealed from is affirmed in each case.


____________________

1

The opening sentence of the quoted oral decision of the district judge indicates that the decision was

rendered immediately following oral argument—and apparently immediately following the reply argument of the

movant. What preceded the argument is left to conjecture. Under Rule 20 of the District Court Rules, regulating

procedure on motions, the moving party reads his moving papers or introduces oral evidence. The party

opposing reads his opposing papers or introduces his oral evidence. The moving party then proceeds in like

manner in rebuttal. Counsel then make their respective arguments. Not only was the hearing of the motions

apparently unreported, but the record is devoid of even the clerk's court minutes. Appellants' designation of

contents of the record on appeal designates the pleadings, the motions, the orders of court, and “all minutes of

court on each and every hearing of any matter or motion concerned herein.” Respondent made no counter

designation. No minutes appear nor any evidence by way of affidavits or otherwise.

____________

��76 Nev. 263, 263 (1960) White Pine Power v. Public Service Commission��

WHITE PINE POWER DISTRICT NO. 9, a Municipal Corporation, Appellant, v. PUBLIC

SERVICE COMMISSION OF NEVADA, and Its Members, J. G. ALLARD, NOEL A.

CLARK, and RICHARD G. CAMPBELL; WELLS POWER COMPANY, a Corporation;

WELLS RURAL ELECTRIC COMPANY, a Corporation; ROBERT R. WRIGHT, a

Subscriber for Electric Power Proposed to be Served by the Wells Rural Electric Company;

CHARLES C. READ, a User of Electric Power Served by Wells Power Company; Said

ROBERT R. WRIGHT and CHARLES C. READ Being Made Defendants for Themselves

and All Other Persons Similarly Situated, Respondents.

No. 4306

May 18, 1960 352 P.2d 256

Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.

Motion for injunction and stay of proceedings during pendency of appeal. Action to enjoin

a power company from selling its assets to another electric company, and for certain other

relief. Plaintiff moved to enjoin defendant from consummating the sale in question. The

Supreme Court held that in view of lack of showing of any irreparable injury which plaintiff

might suffer through failure to grant the motion, it would be denied.

Motion denied.

Robert R. Gill, of Ely, Nevada, and Elias Hansen, of Salt Lake City, Utah, for Appellant.

Roger D. Foley, Attorney General, for Respondent Public Service Commission of Nevada

and its members.

Orville R. Wilson, of Elko, for Respondent Wells Power Company.

Vaughn & Hall, of Elko, for Respondents Wells Rural Electric Company, Robert R.

Wright and Charles C. Read.


Appeal and Error.

A motion to enjoin consummation of a sale of assets pending plaintiff's appeal from an order

dismissing its action to enjoin a sale of such assets would be denied where there was no showing of any

irreparable injury which plaintiff might suffer through failure to grant requested motion.

OPINION

Per Curiam:

Appellant commenced an action in the court below seeking to enjoin respondent Wells

Power Company from selling its assets to respondent Wells Rural Electric Company and

praying that the court declare null and void the approval by the respondent Public Service

Commission of Nevada of such sale. The motion of respondents to dismiss the action was

granted on the ground that the complaint failed to state a claim against respondents. Appeal is

pending from the order of dismissal. The present proceeding is a motion by appellant

pursuant to Rule 62(g) NRCP to enjoin respondent Wells Power Company from

consummating the sale of its assets to respondent Wells Rural Electric Company and

enjoining respondents Public Service Commission of Nevada and its members from

transferring to respondent Wells Rural Electric Company the certificate of public convenience

and necessity heretofore issued to Wells Power Company during the pendency of the appeal.

The granting or denial of the present motion lies within the sound discretion of the court.

Nev. Tax Commission v. Mackie, 74 Nev. 273, 330 P.2d 496. This was conceded by

appellant during oral argument.

It has not been pointed out in appellant's points and authorities on this motion nor in its

oral argument any irreparable injury which it might suffer through our failure to grant said

motion. In fact, how appellant could suffer an irreparable injury during the pendency of the

appeal would be difficult to understand in light of the admitted facts that appellant has not

been granted a certificate of public convenience and necessity by the Public Service

Commission of the State of Nevada, nor �� )��?�,��)��K�� )��?�,�� K�� 8��)�� K�� 8��)��


has it been granted a franchise by the State of Nevada or the County of Elko, State of Nevada,

or the City of Wells, County of Elko, State of Nevada, to serve any of the residents or

inhabitants of that area of Nevada included within the existing franchise of the Wells Power

Company or the certificate of public convenience and necessity heretofore issued to Wells

Power Company and under which said company is now operating. See Lovelock Merc. Co. v.

Lovelock Irr. Dist., 51 Nev. 179, 272 P. 1.

“We do not regard such requested relief as relating to a preservation of the status quo.

Save as a provisional remedy in aid of collection of a money judgment such relief does not

appear to relate to the effectiveness of any judgment we might render. That the effectiveness

of our ultimate judgment might be defeated should we fail to act does not appear at all.”

Kassabian v. Jones, 72 Nev. 314, 304 P.2d 962, 963.

Motion denied.

McNamee, C. J., Pike, J., and Bowen, D. J.

Badt, J., being disqualified, the Governor designated Honorable Grant L. Bowen, Judge of

the Second Judicial District, to sit in his stead.

____________

��76 Nev. 265, 265 (1960) Kraemer v. Kraemer��

MARGARET KRAEMER, aka MARGARET HAHN, Individually, and dba FORTY NINER

MOTEL, Appellant, v. WILLIAM D. KRAEMER, Respondent.

No. 4261

May 20, 1960 352 P.2d 253



Action by husband to recover amount that represented money and value of materials

allegedly furnished by him as loan to wife. The trial court rendered judgment for �� (��)��8�,��+��


husband and wife appealed. The Supreme Court, Pike, J., held that evidence sustained finding

that sums advanced by husband to wife were intended to be and were understood to be a loan.

Judgment affirmed.


Edward G. Marshall, of Las Vegas, for Appellant.

G. William Coulthard and Franklin N. Smith, of Las Vegas, for Respondent.

1. Husband and Wife. Under statute providing that husband and wife may make contracts with each other, contract whereby

husband agreed to advance money to wife as a loan with money to be used in improving wife's separate

property was permissible. NRS 123.070.

2. Husband and Wife. In action by husband against wife to recover amount that represented money and value of materials

allegedly furnished by him as loan to wife, evidence sustained finding that sums advanced by husband to

wife are intended to be and were understood to be a loan. NRS 123.070.

3. Frauds, Statute of. Refusal to permit wife several months after conclusion of trial to amend her answer to include affirmative

defense that statute of frauds precluded recovery by husband of amount of alleged loan was not an abuse of

discretion. NRS 123.070.

OPINION


The parties are husband and wife, and this appeal is by the wife from a judgment in favor

of the husband for $43,065.

The amount of the judgment represents the principal amount sought to be recovered by the

husband in his suit against the wife. At the trial he had produced evidence in support of his

claim that it represented money and the value of materials furnished by him as a loan to the

wife. The purpose of the loan was to enable the wife to enlarge and improve motel premises

owned by her before marriage and constituting her separate property.


The wife conceded the receipt of the money and the materials and that they were used to

improve her separate property, but denied any indebtedness to the husband, contending that

the money and materials constituted a gift from him to her. She also disputed the value of the

materials furnished by the husband as being that of $6,050, seeking to prove that they had a

lesser value and contended that as he had furnished no support to her during coverture, certain

sums included in the total amount sought to be recovered by the husband should be deducted

therefrom, in the event that the court should conclude that the money and materials were not a

gift to the wife.

[Headnote 1]

The husband testified that prior to the construction work being performed he and the wife

had agreed that he was to advance the money to her as a loan. A contract of this nature

between the spouses was permissible under provisions of the Nevada law, NRS 123.070.

Although the husband produced no direct corroboration of his testimony relating to the actual

entering into of the asserted oral agreement with his wife, two other witnesses called by him

testified to being present and participating in conversations, with both spouses present, prior

to the commencement of construction work on the motel premises. Each recounted a separate

occasion when, with the wife and the witness both present, the husband had referred to

lending the money to the wife to enable her to have the improvements added to her motel.

There was no evidence that the wife expressed a view contrary to such arrangements on either

occasion. The husband admitted that he had not furnished support for the wife, stating in that

regard, “She had the income of the court [motel].” The wife had received money from

property owned by her in another state and also from her mother, as well as rental income

from the motel, in addition to the funds received from respondent during the period under

consideration. She deposited and commingled the funds from these several sources. The

construction costs for the ten units which were added to her motel, and the other

improvements to the ��


motel, were included in the disbursements made by her from such deposits.

The wife's testimony denied that there had been an agreement between the parties that the

advances by the husband to her constituted a loan, and also denied having participated in the

conversations recounted by other witnesses which tended to show her knowledge or

acquiescence relating to any such agreement. She did not testify and did not offer any other

evidence to the effect that the husband ever made any direct statement to her that the

advances were to be considered a gift from him to her. She did testify, however, that in

connection with discussions between them relating to the contemplated improvements, the

husband had said that he “would help me in any way he could.” Language of this import was

reiterated by her throughout her testimony.

The parties to this litigation were of mature years when they first became acquainted at the

wife's motel in Las Vegas, Nevada about early September 1955. Two thousand dollars in cash

was received by the wife from the husband in November 1955 prior to their marriage about

January 15, 1956. This initial sum was followed by the delivery of a check for $15,000 from

the husband to the wife in April 1956 and, including a sum transmitted by him to her on

October 23, 1956, a total of some $34,700 of the funds under consideration had been received

by the wife by that date. As indicated, all of these funds were advanced by the husband within

a period of less than a year following the initial advance made by him in November 1955.

There is evidence that the new motel units and certain other improvements had been

completed prior to the final advance made by the husband in the sum of $1,000 by check

dated December 9, 1956. The proceeds of this last-mentioned check were used to pay for

costs of paving in the motel area which, according to the husband, was not within the purview

of the contemplated improvements to the premises.

The wife had purchased the motel premises, which then had some 17 rental units, in 1955

for a purchase ��.1�%�%%%�


price of $120,000. Shortly after acquiring the premises she had listed them for sale and after

the improvements here under discussion had been made and a swimming pool had been

added, the premises were listed for sale with an asking price of $185,000.

The trial court, sitting without a jury, tried the issue of whether or not the entire amount

advanced by the husband constituted a loan as contended by the husband or constituted a gift

as claimed by the wife. Although the wife denied any oral agreement between the parties that

the advances from the husband to her constituted a loan and had construed his oral

expressions of wishing to do whatever he could to be of help to her as indicating his intention

to treat the advances as a gift to her, she also placed reliance in a legal presumption asserted

by her as applying to the factual situation relating to the advances. She argued that, in the

absence of a specific agreement to the contrary, the use of the husband's separate property to

improve the wife's separate property created a presumption of a gift from him to her, citing a

decision of this court in Lombardi v. Lombardi, 44 Nev. 314, 195 P. 93. The decision of this

court just referred to held that the expenditure by the husband of his separate funds to

improve the wife's separate property, does not operate to change the title; that, as between

them “in the absence of any specific agreement to the contrary,” the title to the improvement

follows the land.

The husband did not dispute the proposition of law referred to and relied upon by the wife,

but urged that, as there had been a “specific agreement to the contrary” between the parties,

namely, that the advances were to be considered loans, the oral agreement between them was

within the recognized exception to the rule asserted by the wife.

[Headnote 2]

Upon this conflicting evidence the trial court entered its written decision in favor of the

husband, stating that he had “sufficiently carried the burden of proof and that the sums

advanced by the plaintiff to the defendant �� '


were intended to be, and were understood to be between the parties, a loan.” This written

decision of the court was followed by its findings and judgment in favor of the husband. As

there is substantial evidence supporting the judgment, it must be affirmed. Bloomfield v.

Koval, 72 Nev. 17, 19; 292 P.2d 1073, 1074.

Certain specifications of error by appellant, not already disposed of herein by the

foregoing, require consideration. (1) Appellant refers to the fiduciary relationship existing

between the husband and wife and reviews legal authorities, stating the requirement that any

contract between them be fair and reasonable. We find the substance of the same requirement

stated in the Nevada statute hereinabove referred to pertaining to contracts of this nature

between the spouses. At the close of all the testimony the trial court reviewed at some length

the relationship of the parties and stated, prior to the filing of its written decision and

judgment, “That is the finding of this court with no dirty hands on either side.” This and other

concurrent expressions of the court negate any failure on the part of the husband to comply

with the requirements of the law based upon the confidence and trust of the marital

relationship, in entering into the agreement with the appellant. The agreement asserted by the

husband was that the funds had been loaned by him to her. The relief sought by him was the

repayment by her of the loan, together with the interest. The trial court entered judgment in

favor of the husband for the principal amount of the loan and refused a judgment for interest,

stating in its written decision as a basis for such denial that there was no proof that the loan

was to bear interest, and in its findings that no rate of interest for the loans had been specified

by the parties.

[Headnote 3]

(2) Appellant also assigns error on the part of the trial court in its denial of appellant's

motion to amend her answer to include the affirmative defense that the statute of frauds

precluded recovery by the husband. This motion to amend was filed on August 24, 1959,

several months after the conclusion of the trial. The ��


denial of the motion to amend was within the discretion of the trial court. Ramezzano v.

Avansino, 44 Nev. 72, 80; 189 P. 681, 684.

Judgment affirmed.

Badt, J., and Gregory, D. J., concur.

McNamee, C. J., having disqualified himself, the Governor designated Honorable Frank B.

Gregory, Judge of the First Judicial District Court to sit in his place and stead.

____________

��76 Nev. 271, 271 (1960) Riff v. Kowal��

GEORGE RIFF and NETTIE RIFF, Appellants, v. JACK KOWAL, aka JOHN KOWAL,

PENNY KOWAL, Respondents.

No. 4224

May 25, 1960 352 P.2d 819



Action by creditors against debtors to recover sum of money lent to debtor and value of

jewelry purchased by debtors from plaintiffs. From judgment of the trial court dismissing the

complaint, plaintiffs appealed. The Supreme Court, Pike, J., held that where cause of action

had become barred by statute of limitations, and thereafter defendants made a part payment,

not accompanied by written promise to pay the remainder, the statute of limitations was not

tolled, and cause of action was barred.

Judgment affirmed.

Robert Cohen, of Las Vegas, for Appellants.

Murray Posin, of Las Vegas, for Respondents.

1. Limitation of Actions. Where cause of action for money lent to defendants and for value of jewelry purchased by defendants

from plaintiffs had become barred by statute of limitations, and thereafter ��

��76 Nev. 271, 272 (1960) Riff v. Kowal��

defendants made a part payment, not accompanied by a written promise to pay the remainder, the statute of

limitations was not tolled, and the cause of action was barred. NRS 11.190, 11.200, 11.390.

2. Limitation of Actions. Under statute providing that whenever any payment on principal or interest has been made upon an

“existing contract”, the limitation shall commence from the time the last payment was made, the phrase

“existing contract” refers to an existing enforcible contract, and part payment of an amount due does not

extend the period of time within which suit may be brought where the enforcement of the contract has

already been barred by the statute of limitations at the time of the payment. NRS 11.200.

OPINION


Appellants, who were plaintiffs in the trial court, appeal from a judgment of dismissal,

with prejudice, of plaintiffs' complaint. The complaint alleged that about October 1945

defendants had agreed to pay to plaintiffs the sum of $2,777 representing money borrowed

and the value of jewelry then purchased by defendants from plaintiffs. It also alleged that,

although demand had been made for payment, no part of the obligation had been paid except

the sum of $100 paid about August 1958. Plaintiffs sought judgment for the unpaid balance

of $2,677.

Thus the allegations of the complaint disclose that, after the obligation was incurred by the

defendants, nearly 13 years had elapsed before defendants made any payment on account of

the same.

Defendants' motion to dismiss was based upon the ground that the complaint failed to state

a claim upon which relief could be granted. In presenting such motion defendants relied upon

the statute of limitations as barring the enforcement of the indebtedness. Reference was made

to NRS 11.190 as supporting authority. That statute provides that suit must be brought within

four years upon an open account or obligation not founded upon an instrument in writing.

Defendants also cited the decision of this court in Wilcox v. Williams, 5 Nev. 206, as

authority for the �� ,��

��76 Nev. 271, 273 (1960) Riff v. Kowal��

proposition that the part payment made by defendants and unaccompanied by any written

acknowledgment or promise to pay the indebtedness executed by defendants, was not

sufficient to toll the statute. The statute then under consideration, § 30, Ch. 12, Stats. of Nev.

1861, p. 31, was identical with NRS 11.390, hereinafter set forth, except for the italicized

language of the present statute which was added by amendment after the decision in Wilcox

v. Williams, supra. “No acknowledgment or promise shall be sufficient evidence of a new or

continuing contract whereby to take the case out of the operation of this chapter, unless the

same be contained in some writing signed by the party to be charged thereby, except as

provided in NRS 11.200.”

NRS 11.200 provides, “The time in NRS 11.190 shall be deemed to date from the last

transaction or the last item charged or last credit given; and whenever any payment on

principal or interest has been or shall be made upon an existing contract, whether it be a bill

of exchange, promissory note or other evidence of indebtedness if such payment be made

after the same shall have become due, the limitation shall commence from the time the last

payment was made.” NRS 11.190, referred to in NRS 11.200, prescribes the periods of

limitations for the commencement of actions based upon particular types of obligations.

[Headnotes 1, 2]

Appellants assert that, by reason of the amendment of the statute, the decision in Wilcox v.

Williams, supra, is no longer controlling and that the part payment made by respondent was

sufficient to remove the bar of the statute. In this connection appellant construes NRS 11.200

to provide that any payment on principal or interest made on an “existing contract” after the

same shall have become due, extends the period of time within which suit may be brought,

not limiting the effect of such payments to those made prior to the running of the statute. We

are unable to agree with appellants' construction of the statute. There is a clear distinction

between an “existing contract” which “shall have become due” within the purview of NRS

11.190 and a contract ��

��76 Nev. 271, 274 (1960) Riff v. Kowal��

which has not only become due but the enforcement of which has become barred by the

statute of limitations. Rather, the language “existing contract,” as used in NRS 11.200, when

considered with its context and the language of related statutory provisions hereinabove

referred to, must be construed to mean an existing enforcible contract and not a contract the

enforcement of which has already been barred by the statute of limitations.

Appellants refer to the decision of the California Supreme Court in Eilke v. Rice, 45

Cal.2d 66, 74, 286 P.2d 349, 353, construing a 1947 amendment to the California statute as

persuasive authority supporting appellants' contentions. However, the following statement

contrary to appellants' contentions appears in that decision: “Any payment made after the first

four years have run without extension or after four years have passed since the last extension

by part payment, will not have the effect of tolling the statute.”

Judgment affirmed.


____________

��76 Nev. 274, 274 (1960) Pinana v. State��

THELMA PINANA, Appellant, v. THE


No. 4216

May 31, 1960 352 P.2d 824


Department No. 1.

Defendant was found guilty of murder in the first degree. The trial court rendered

judgment and defendant appealed. The Supreme Court, McNamee, C. J., held, inter alia, that

court did not err in refusing to permit pretrial inspection of autopsy report, blood alcohol test,

��


and statements of defendant and that it did not err with respect to instructions and that

evidence sustained conviction.

Affirmed.


Roger D. Foley, Attorney General, William J. Raggio, District Attorney, Washoe County,

and Emile J. Gezelin, Chief Deputy District Attorney, Washoe County, for Respondent.

1. Courts. Statute providing that rules of evidence in civil actions shall be applicable to criminal actions, except as

otherwise provided, had no application to rules of civil procedure which were adopted subsequent to its

enactment. NRS 178.225; NRCP 34-37.

2. Criminal Law. Statute providing that rules of evidence in civil actions shall be applicable to criminal actions, except as

otherwise provided, does not refer to procedure and does not authorize pretrial inspection of an autopsy

report, blood alcohol test, and statements of defendant. NRS 178.225.

3. Criminal Law. Unless trial judge is required by statute to permit particular type of inspection, it is not erroneous for him

to deny inspection where the basic rights of defendant would not be thereby prejudiced.

4. Criminal Law. As trial court's denial of request that defendant be permitted pretrial inspection of autopsy report, blood

alcohol test, and of her statements, in murder prosecution, did not prevent her from having fair trial, it was

not error.

5. Criminal Law. Defendant was not prejudiced in respect to a substantial right by trial court's denial of her motion that she

be given pretrial psychiatric and medical examination at expense of county where she was examined before

trial by physician and surgeon of her own choosing who was specialist in psychiatry and who testified that,

at time of shooting giving rise to prosecution, she suffered from mental disease, that she had acute

psychosis, that she was in state of confusion and did not know nature of act which was committed.

6. Pardon and Parole. The constitutional provision empowering the Governor, justices of the Supreme Court, and Attorney

General to remit fines and forfeitures, commute punishments, and grant pardons after convictions does not

preclude the legislature from conferring power of parole upon a court, and the statutory provi ��


sion permitting jury to fix penalty for first degree murder at life without possibility of parole is not violative

of such constitutional provision. NRS 200.030, subd. 4; Const. art. 5, § 14.

7. Pardon and Parole. A “parole” is distinguishable from a “pardon.”

8. Pardon and Parole.

Parole is not a constitutional right; it is bestowed by legislative grace. NRS 200.030, subd. 4; Const.

art. 4, § 1.

9. Criminal Law. Legislature has exclusive power to determine length of imprisonment for a felony, and statutory provision

permitting jury to fix penalty for first degree murder at life without possibility of parole was merely an

exercise of constitutional powers. NRS 200.030; Const. art. 4, § 1.

10. Constitutional Law; Criminal Law. Statutes giving courts or juries discretion in fixing punishment, with respect both to nature thereof (a fine

or imprisonment or both) and to extent thereof within certain fixed limits are not violative of constitutional

equal protection provisions. NRS 200.030, 213.120, subd. 1.

11. Criminal Law. Until maximum sentence, as fixed by parole board for sentence of life imprisonment, would have been

served, defendant sentenced to life without possibility of parole would be deprived of no substantial right

by such sentence. NRS 200.030, subd. 4.

12. Criminal Law. Trial court did not err in sustaining State's objection to production of statements made by defendant,

pursuant to subpoena duces tecum directed to prosecuting attorney where subpoena was being used solely

for purposes of discovery, necessity for production of such statements at that stage of proceedings was not

shown and such statements were later received in evidence.

13. Witnesses. The office of a subpoena duces tecum is not to require production of books and papers for a party's

inspection.

14. Criminal Law. Proceedings, in justice court, stating that complaint was filed against defendant “being present in court,

she was duly and regularly arraigned, and upon being advised of her rights, and of her right to obtain

private counsel to defend her at time of her preliminary hearing,” time for such hearing was set and

defendant was held to answer, sufficiently disclosed compliance with requirements of statute that

magistrate immediately inform defendant of charge. NRS 171.370.

15. Criminal Law. Term “arraignment” refers to initial appearance of a defendant in district court after indictment or

information has been filed. NRS 174.130.

16. Criminal Law. Where defendant proceeded to trial on merits without raising any objection to proceedings in justice's

court, she ��


thereby waived any irregularities which might have occurred therein.

17. Criminal Law. Instruction, in murder prosecution, that all murder which is perpetrated by means of lying in wait is

murder in first degree was not erroneous under claimed infirmities of failing to state that murder must first

be established before question of lying in wait can be considered, where, in other instructions, court

defined murder and stated that to find defendant guilty, all elements must have been proven beyond

reasonable doubt, and instruction as given was warranted by the evidence.

18. Homicide. Instruction in murder prosecution, paraphrasing statutory provision stating degrees of murder was

properly and necessarily given in order to inform jury of nature of its duty in event it found defendant

guilty of first degree murder and no further guidance to jury in fixing punishment was required. NRS

200.030.

19. Homicide. In murder prosecution, instruction properly defining second degree murder was not erroneous for court's

refusal to add thereto repetitious sentence stating definition in similar but rearranged words.

20. Criminal Law. Instruction in murder prosecution explaining when drunkenness is no excuse for commission of a crime

was proper statement of law.

21. Criminal Law. A mind capable of knowing right from wrong is a mind capable of entertaining intent, and of deliberating

and premeditating.

22. Criminal Law. Instruction, in murder prosecution, stating that a mind capable of knowing right from wrong is a mind

capable of entertaining intent and of deliberating and premeditating was proper statement of law and was

not misleading when considered with other instructions.

23. Criminal Law. Court properly refused to give instructions where subject matter thereof was substantially and properly

covered in instructions given. NRS 169.110.

24. Criminal Law. Affidavits concerning hearsay statements of one of the jurors, and amounting to indirect way of

permitting juror to impeach his own verdict, were not entitled to consideration on motion for new trial.

25. Criminal Law. Personal testimony of jurors, as to asserted misconduct, proffered as attempt to have jurors impeach their

own verdict by showing that they had answered questions on voir dire examination improperly and that

they had considered facts outside record was properly refused.


26. Homicide. Evidence sustained murder conviction.

27. Criminal Law. Duty of an appellate court to review evidence has been performed when it has determined that there is

substantial evidence to support the verdict.

OPINION


Appellant by jury verdict was found guilty of murder in the first degree and the jury by its

verdict fixed the penalty at confinement in the state prison for life without possibility of

parole. Appeal is from the judgment based on said verdict and from the order denying a new

trial.

On September 14, 1958, in the home of appellant and her husband in Reno, Nevada,

appellant shot her husband. The shooting occurred at 8 o'clock in the morning after the parties

had been out all night visiting several bars and consuming a number of drinks. Immediately

preceding the shooting they had engaged in an argument and had discussed a divorce.

According to appellant's testimony the pistol had been in a drawer of the nightstand in the

bedroom. She stated she intended to unload the gun and while it was in her hands it

discharged. After being shot, the victim walked outside the house and fell dying in the street.

Appellant was interrogated by police officials on the day of the shooting before she knew her

husband had died and also on the next day after she had been informed of the death of her

husband. An autopsy was performed on the deceased, revealing that three bullets had pierced

the body of the victim.

Several weeks after the shooting, appellant was examined by a psychiatrist at the request

of the district attorney. Thereafter a motion by her counsel that she be examined from a

medical and psychiatric standpoint at county expense was denied. A motion for an order

compelling the pre-trial disclosure of an autopsy and blood alcohol report on the deceased, a

blood alcohol test on appellant, and of certain statements made by appellant to law officials

was denied. A petition for a writ of �� <��


mandamus to compel such pre-trial disclosure was filed in this court and denied upon the

ground that mandamus does not lie to control judicial discretion or to review the propriety of

judicial action. Pinana v. Second Judicial District Court, 75 Nev. 74, 334 P.2d 843.

The specifications of error are hereinafter considered separately:

(1) Did the trial court err in refusing to permit pretrial inspection of the autopsy report,

blood alcohol tests, and statements of appellant?

[Headnotes 1, 2]

Appellant concedes that there was no common-law right of discovery or inspection prior to

trial in criminal cases. Such right was created in England in modern times upon the adoption

there of a pre-trial procedure which permits counsel for a defendant to have in his possession

before the trial begins all of the evidence that can be presented at the trial. Of course, this

change of the common law occurred long after the adoption of the common law in this state.

Appellant contends that the adoption of the Nevada Rules of Civil Procedure which provide

for pre-trial disclosure in civil cases should be likewise applied to criminal actions because of

NRS 178.225 which provides: “The rules of evidence in civil actions shall be applicable also

to criminal actions, except as otherwise provided in this Title.” This statute is identical with

section 604 of the 1911 Act regulating proceedings in criminal cases found in NCL(1929) §

11251. It obviously could have no application to Nevada Rules of Civil Procedure which

were adopted January 1, 1953. People v. Wilkins, 135 Cal.App. 2d 371, 287 P.2d 555. See

State ex rel. Keast v. District Court, 135 Mont. 545, 342 P.2d 1071. Furthermore, by its very

terms it refers to “evidence in civil actions” and not to procedure.

In the absence of statute giving a defendant the right to pre-trial inspection of the

prosecution's evidence, the decisions are not harmonious in dealing with this matter. The

general rule is that in the absence of statute the allowance of such inspection rests within the

discretion of the trial court. Appellant concedes this in the ��


oral argument. We assumed such to be the rule in Nevada, when in refusing to issue a writ of

mandamus to compel the lower court to permit inspection we stated that mandamus would

not lie to control judicial discretion. Pinana v. Second Judicial District Court, supra.

[Headnotes 3, 4]

There are many good reasons why courts in the exercise of their discretion should be

liberal in allowing pre-trial inspection of prosecution evidence, but proper limitations to such

inspections must be respected. See People v. D'Andrea, 20 Misc.2d 1070, 195 N.Y.S.2d 542.

Unless a trial judge is required by statute to permit a particular type of inspection, it is not

erroneous for him to deny inspection where the basic rights of a defendant would not thereby

be prejudiced. The trial judge before whom the situation can easily be presented is able to

determine better than an appellate court what is proper in a particular case. We fail to find

anything in the record to support appellant's contention that this denial of pre-trial disclosure

prevented her from having a fair trial.

In her reply brief appellant states that if the court had inherent discretionary authority to

permit pre-trial inspection it refused to exercise such discretion. This assertion is based upon

this statement of the court: “However, it may be a good thing to have pre-trial discovery in

criminal cases, but until the Legislature tells me otherwise, the motion will be denied.” All

that the court's statement amounts to is that, absent statutory compulsion, he would not grant

the particular motion, under the particular circumstances, in the particular instance. But, in

any event, as heretofore stated, no prejudice was shown to appellant by the court's ruling and,

thus, no reversible error can be claimed therefrom. State v. Squier, 56 Nev. 386, 54 P.2d 227;

NRS 169.110.

[Headnote 5]

(2) Appellant claims that the court erroneously denied appellant's motion that she be given

a pre-trial psychiatric and medical examination at the expense of the county.

Counsel concede that there is no statutory basis for �� &�� '


such a motion but contend that the court has inherent discretionary power to grant such a

motion, and for it to decline to consider the motion “upon the ground that there is no statutory

authority represents an abuse of discretion.” The record does not disclose that such was the

reason for the court's denial of the motion. Nor does anything appear in the record to show

that the court was of the opinion that it had no inherent power to grant such a motion. In our

opinion this contention is without merit.

The court's denial of this motion did not result in a miscarriage of justice nor was appellant

actually prejudiced in respect to a substantial right in view of the fact that she was examined

before the trial by Dr. Raymond M. Brown, a physician and surgeon of her own choosing who

was a specialist in psychiatry. His testimony at the trial based upon such examination was to

the effect that appellant at the time of the shooting was suffering from a mental disease, that

she had an acute psychosis, and was in a state of confusion, and that she did not know the

nature and quality of the act which was committed.

We fail to see where appellant could have profited more from testimony given by such a

specialist merely because his services were paid for by the county.

(3) Appellant contends that subsection 4 of NRS 200.030 is unconstitutional in so far as it

permits a jury to fix the penalty for first degree murder at life without possibility of parole.

[Headnote 6]

In her opening brief she fails to distinguish between pardon and parole. It is her contention

that Article 5, § 14, of the Nevada Constitution, which empowers the governor, justices of the

supreme court, and attorney general to “remit fines and forfeitures, commute punishments,

and grant pardons, after convictions” precludes the legislature from conferring the power of

parole upon a court. The contention is without merit.

[Headnote 7]

A parole is distinguishable from pardon. Ex parte Anderson, 191 Ore. 409, 229 P.2d 633,

230 P.2d 770, �2�5�>��1%#1-��


29 A.L.R.2d 1051; State ex rel. Murphy v. Superior Court, 30 Ariz. 332, 246 P. 1033, 47

A.L.R. 401; 39 Am. Jur., § 11, Pardon, Reprieve and Amnesty, p. 525. The rule by some

decisions is that the power to pardon includes the power to parole. 67 C.J.S. § 19, p. 600.

However the law seems well settled that no infringement upon the powers of the executive to

grant pardons, reprieves, or commutations of sentences occurs, where a statute empowers an

administrative body to establish a system of parole. Commonwealth ex rel. Banks v. Cain,

345 Pa. 581, 28 A.2d 897, 143 A.L.R. 1473 (Annot., p. 1486); Application of Fredericks, 211

Ore. 312, 315 P.2d 1010.

Likewise the pardoning and sentence-suspending power of the executive could not be

infringed by statute giving the courts power over paroles.

In Commonwealth ex rel. Banks v. Cain, supra, [345 Pa. 581, 28 A.2d 899] the

Pennsylvania Supreme Court said: “The constitutionality of this statute is attacked on two

principal grounds. The first is that it infringes upon the power of the Governor to grant

commutations of sentence and pardons * * * . There is no novelty in this contention; it has

been made many times in the courts of other states in which parole systems are administered

by boards or prison managers, and has been rejected in practically all jurisdictions. (Citing

cases.) There is a radical difference between a pardon and a parole. A pardon is the exercise

of the sovereign's prerogative of mercy. It completely frees the offender from the control of

the state. It not only exempts him from further punishment but relieves him from all the legal

disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in

the eye of the law, he is thereafter as innocent as if he had never committed the offense:

(Citing cases.) A parole, on the other hand, does not obliterate the crime or forgive the

offender. It is not an act of clemency, but a penological measure for the disciplinary treatment

of prisoners who seem capable of rehabilitation outside of prison walls. It does not set aside

or �� -��


affect the sentence; the convict remains in the legal custody of the state and under the control

of its agents, subject at any time, for breach of condition, to be returned to the penal

institution. Neither is a parole a commutation of sentence, within the meaning of that term in

the constitutional provision. When our present constitution was adopted, parole, as a

penological expedient, was unknown to American jurists and legislators, and ‘commutation'

was then generally understood as meaning a reduction in the length of the sentence, effecting

a discharge of the prisoner without any further supervision over him by the state authorities.

The constitutional power of the Governor to grant pardons and commutations of sentence is

exclusive, so that the fact that the legislature has, by various statutes, given the power of

parole to the criminal courts, to the board of managers of the Industrial Reformatory at

Huntingdon, and to the board of trustees of the State Industrial Home for Women, indicates

that parole has never been considered as being within the category of either pardon or

commutation. The courts in other states have held that a parole is not a commutation as that

term is employed in their respective constitutions.” (Citing cases.)

[Headnote 8]

The subject of parole in this state is within the legislative authority given by the

constitution to the legislature. Art. 4, Sec. 1, Nevada Constitution. Parole is not a

constitutional right; it is a right bestowed by legislative grace. Zink v. Lear, 28 N.J.Super.

515, 101 A.2d 72.

[Headnote 9]

The legislature has the exclusive power to determine the length of imprisonment for a

felony. In re Callahan's Petition, 348 Mich. 77, 81 N.W.2d 669. And in the enactment of NRS

200.030 it was merely exercising its constitutional powers.

[Headnote 10]

Appellant also contends that NRS 200.030 is unconstitutional in that it violates the equal

protection clause �� 1�(�� 0 ��


of the federal constitution by empowering the jury to give some persons convicted of first

degree murder life sentences with the possibility of parole and to deny the possibility of

parole to others. 1 This argument loses force in view of appellant's admission that a jury upon

finding a person guilty of first degree murder may properly determine the punishment at death

or life imprisonment. Statutes giving courts or juries discretion in the fixing of punishment,

with respect both to the nature thereof (a fine or imprisonment or both), and to the extent

thereof within certain fixed limits are not violative of constitutional equal protection

provisions. Cochran v. Simpson, 143 Kan. 273, 53 P.2d 502; cf. Ughbanks v. Armstrong, 208

U.S. 481, 28 S.Ct. 372, 52 L.Ed. 582; People v. Dixon, 400 Ill. 449, 81 N.E.2d 257.

[Headnote 11]

As to the effectiveness of the provision in the verdict against parole, it may be that it can

be considered at the time appellant, in the absence of such a provision, would otherwise

become eligible for parole. Until the minimum sentence as fixed by the parole board for a

sentence of life imprisonment has been served appellant would not be deprived of any

substantial right. In re Current, 76 Nev. 41, 348 P.2d 470. The said provision of course would

not bar a pardon or a commutation of the sentence.

[Headnote 12]

(4) Appellant's counsel had issued a subpoena duces tecum directed to the prosecuting

attorney herein and requiring him to produce certain statements made by appellant on

September 14, 1958. The lower court's action in sustaining the state's objection to the

production of said statements is cited as error. We believe however that this action of the trial

court was proper.

It is to be noted that the prosecuting attorney was willing to take the stand and testify

regarding those matters contained in the statements which were related to him by appellant,

but it is apparent from the record ��0 ��

____________________

1

Subsection 1 of NRS 213.120 provides: “No prisoner imprisoned under a verdict or judgment and sentence

of life imprisonment without possibility of parole shall be eligible for parole.”


that appellant's counsel was not interested in the statements for an evidentiary purpose but

solely to peruse them and become familiar with their contents. In other words the subpoena

duces tecum was being used solely for the purpose of discovery, and an attempted pre-trial

discovery with respect to said statements had already been denied appellant. The necessity for

the production of said statements at this stage of the proceedings was not shown and,

furthermore, the statements were later received in evidence.

[Headnote 13]

The office of a subpoena duces tecum is not to require the production of books and papers

for a party's inspection. American Car & Foundry Co. v. Alexandria Water Co., 221 Pa. 529,

70 A. 867, 128 Am.St.Rep. 749; 58 Am.Jur., § 20, Witnesses, p. 33.

[Headnote 14]

(5) Appellant claims that she is being deprived of her liberty without due process of law

because she was not advised of her rights in the preliminary hearing, and because the state did

not comply with the law pertaining to preliminary hearings.

The proceedings in the justice's court disclose that on September 10, 1958, a complaint

was filed and appellant “being present in court, she was duly and regularly arraigned, and

upon being advised of her rights, and of her right to obtain private counsel to defend her at

the time of her preliminary hearing, said hearing is hereby set for September 29, 1958, at the

hour of 2 p. m.” That at the time so set, the preliminary hearing took place and appellant was

held to answer.

In our opinion this shows a compliance with the provisions of NRS 171.370 which states

that when the defendant is brought before the magistrate upon an arrest on a charge of having

committed a public offense, “the magistrate must immediately inform him of the charge

against him, and of his right to the aid of counsel at every stage of the proceedings.”

[Headnote 15]

The record does not expressly state that she was informed of the charge, but the recital that

she was &��'��


“arraigned” implies that she was so informed. It is true that arraignment refers to the initial

appearance of a defendant in the district court after an indictment or information has been

filed. It consists in part of “reading the indictment or information to the defendant.” NRS

174.130. It is apparent that the justice of the peace in stating that the appellant “was duly and

regularly arraigned” was recording the fact that she was informed of the charge against her by

the reading of the complaint.

[Headnote 16]

Although the record fails to state that appellant was informed of her right to counsel “at

every stage of the proceeding” she was informed of her right to have counsel at the

preliminary hearing, which was the only hearing prior to trial, and at the trial and subsequent

thereto she was at all times represented by counsel. Appellant proceeded to trial on the merits

without raising any objection to the proceedings in the justice's court, and in doing so waived

any irregularities which might have occurred therein. See State v. Dale, 66 S.D. 418, 284

N.W. 770; State v. Reddington, 7 S.D. 368, 64 N.W. 170.

[Headnote 17]

(6) Error is claimed in the giving and refusing to give certain instructions.

a. Instruction 12 states in part: “All murder which is perpetrated by means of lying in wait

is murder of the first degree.” Appellant contends that this instruction was defective because

the court failed to explain that murder must first be established before the question of lying in

wait can arise. In the other instructions given the court defined murder and stated that to find

appellant guilty thereof all of the elements must have been proven beyond a reasonable doubt.

In view of the appellant's own testimony the jury could properly have inferred that she was

“lying in wait” for the victim at the time of the shooting. Under such circumstances this

instruction was proper to aid the jury in determining the degree of the offense in the event

they found the appellant guilty of murder.


[Headnote 18]

b. Instruction 18 paraphrases subsection 4 of NRS 200.030. It was properly and necessarily

given in order to inform the jury of the nature of its duty in the event it found the defendant

guilty of murder in the first degree. No further guidance to the jury in fixing the punishment

is required.

[Headnote 19]

c. In instruction 19 the court properly defines second degree murder. It was not error for

the court to refuse to add thereto a repetitious sentence stating the definition in similar

rearranged words.

[Headnote 20]

d. Instruction 25 explains when drunkenness is no excuse for the commission of a crime. This

instruction substantially states the law on the subject. State v. Thompson, 12 Nev. 140.

[Headnotes 21, 22]

e. Instruction 29 reads: “A mind capable of knowing right from wrong is a mind capable of

entertaining intent, and of deliberating and premeditating.” This is a correct statement of the

law. Fox v. State, 73 Nev. 241, 316 P.2d 924. Considered with the other instructions it could

not be misleading, as claimed by appellant.

[Headnote 23]

f. Appellant contends that it was error for the court to refuse to give her requested

instructions on intent, reasonable doubt, presumption of innocence, state of mind, insanity,

and intoxication. All of these matters were substantially and properly covered in the

instructions given. If it were error not to have given any particular requested instruction, the

same will not be considered on appeal in the absence of a showing that appellant was

prejudiced thereby. NRS 169.110.

(7) Appellant claims error in the court's refusal on the motion for new trial to permit her to

show that the jury was guilty of misconduct.

The motion for new trial was grounded upon the alleged errors heretofore considered and

also upon the ground that the jury was guilty of misconduct in that ��&�� '


it received evidence out of court and that the “verdict has been decided by a means other than

a fair expression of opinion on the part of all of the jurors.”

[Headnote 24]

In support of this latter ground appellant offered in evidence the affidavits of Leslie B.

Gray, one of appellant's counsel, and of Ernest R. Ferguson. These affidavits concerned only

hearsay statements of Richard Haman, one of the jurors, and amounted to an indirect way of

permitting a juror to impeach his own verdict. The court properly held that they were entitled

to no consideration. Priest v. Cafferata, 57 Nev. 153, 60 P.2d 220.

[Headnote 25]

The motion for new trial stated that in addition to said two affidavits it would be based on

the personal testimony of the jurors. When several of the jurors were called to testify,

objection to the admission of such testimony was sustained by the trial court. From the offer

of proof presented the purpose of this testimony was an attempt to have the jurors impeach

their own verdict by showing they had answered questions on their voir dire examination

improperly and that they had considered facts outside the record. As stated in Priest v.

Cafferata, supra: “Scarcely any rule of law is more thoroughly entrenched in the jurisprudence

of this country than the general one that a juror will not be heard to impeach his own verdict.”

The court did not err in refusing to permit the jurors to testify under these circumstances. So.

Nev. M. Co. v. Holmes M. Co., 27 Nev. 107, 73 P. 759, 103 Am.St.Rep. 759.

[Headnote 26]

(8) Appellant's last assignment of error is that the verdict is contrary to the law and that the

evidence is insufficient to sustain a verdict of murder in the first degree.

It clearly appears from the record that there was sufficient evidence from which the jury

could determine that appellant consciously conceived an intent to kill her �� ,��


husband, that she had the capacity at the time of the shooting to reflect and to understand the

consequences of her actions, that the killing was willful, deliberate, and premeditated, and, as

stated before, there was evidence of lying in wait which with the other evidence establishing

murder would support a verdict of murder in the first degree. 2

[Headnote 27]

The duty of an appellate court to review the evidence has been performed when it has

determined that there is substantial evidence to support the verdict.

In State v. Bourdlais, 70 Nev. 233, 255, 265 P.2d 761, 771, this court said:

“It has been the rule in the State of Nevada, long established and consistently adhered to

by this court, that if there is substantial evidence to support the verdict of the jury, the

evidence will not be weighed by this court, nor the verdict or judgment disturbed. This court

cannot reverse the judgment upon the ground of insufficiency of the evidence where there is

substantial evidence to support the verdict of the jury.”

No prejudicial error appearing, the judgment and order denying the motion for a new trial

are affirmed, and the application for modification of the judgment by reducing the degree of

the crime is denied.


____________________

2

Some of the evidence in the record which supports the verdict is as follows: a pillow in front of the

bathroom door with an apparent bullet hole through it, evidentiary of an attempt to silence the shots; appellant's

act of tearing up her marriage license prior to the shooting; the existence of three bullet wounds in the body of

the victim and the testimony that the shots “weren't real close together”; appellant's taking the gun into the

bathroom from where the first shot was fired; appellant's concealing herself in the bathroom with the door

partially open; and appellant's statement immediately after the shooting that “I shot him. I killed him. He was

going to leave me and I fixed him good.”

____________

��76 Nev. 290, 290 (1960) St. John v. Building Trades Council��

THEODORE B. ST. JOHN, dba TED'S PLUMBING, Appellant, v. BUILDING TRADES

COUNCIL OF RENO AND VICINITY and PLUMBERS AND STEAMFITTERS UNION,

LOCAL NO. 350, and ADAM ALGER, Respondents.

No. 4266

June 2, 1960 352 P.2d 820


Department No. 1.

Action brought by plumber, who did his own work and employed no help, to recover from

building trades union for losses sustained by reason of black-listing of plumber. The trial

court denied the relief sought, and plaintiff appealed. The Supreme Court, Badt, J., held that

inducing plumber to confine his working hours to 40-hour week was a lawful union objective

and that black-listing was a proper means of coercive action to attain such objective.

Affirmed.


Ernest S. Brown, Ray S. Flanary, and Jack I. McAuliffe, of Reno, for Appellant.

Harry A. Busscher and Roger Bissett, of Reno, and Brundage, Neyhart, Grodin and

Miller, of San Francisco, for Respondents.

1. Labor Relations. Inducing plumber, who did his own work and employed no help, to confine his working hours to 40-hour

week was a lawful union objective; and black-listing such plumber was a proper means of coercive action

by building trades union to attain such objective.

2. Labor Relations. In action brought by plumber, who did his own work and employed no help, to recover from building

trades union for losses sustained by reason of black-listing of plumber, evidence sustained finding that

attempted regulation of work week bore reasonable relevance to labor conditions and that it was not

unlawful for union to black-list plaintiff in an attempt to require him to observe 40-hour labor week.


3. Labor Relations. Right to work law did not make it unlawful for union to black-list plumber, who did his own work and

employed no help, in order to coerce him to confine his working hours to a 40-hour week.

OPINION


St. John, who was engaged in the contracting and subcontracting of plumbing work in

Washoe County had bid upon two jobs with T & T Engineering Company to do the plumbing

work on the construction of two service station buildings. His bids were the low bids on these

jobs. He had undertaken the plumbing subcontracts for T & T for a number of years in the

past. He did his own work and employed no help. T & T would have accepted St. John's bid

and would have employed him on these two jobs, but for the fact that the building trades

council and the local union had put St. John on their “We do not patronize” list. The reason

for such action was St. John's refusal to confine the hours of his work to a 40-hour week. St.

John sued for damages for a common-law tort, asserting that by reason of the loss of these

two contracts he had suffered special damages in the amount of $1,500, and further general

damages. From a judgment in favor of defendants, St. John has appealed.

[Headnote 1]

The question presented for our determination is whether the coercive action of the

defendants in putting the plaintiff on their “We do not patronize” list was for a lawful

objective. We have concluded that it was and that the judgment must accordingly be affirmed.

Appellant concedes that the circulating of a “We do not patronize” list is not an improper

means of coercive action.

The district court filed a written opinion and decision which contained its own findings

and conclusions and, without making formal findings, directed that judgment be entered in

accordance therewith.


The trial court found that there were no threats against either St. John or T & T

Engineering Company, that there was no unlawful coercion, no unlawful intimidation, and

that the allegations of the complaint as to these factual issues had not been substantiated. The

court concluded that the circulation of the “We do not patronize” list as a means of coercion

was not unlawful in itself, nor was its purpose unlawful in attempting to require plaintiff to

accede to a 40-hour labor week with no weekend activity, as such “attempted regulation bears

a reasonable relevance to labor conditions * * * and directed towards something which is

reasonably related to employment and working conditions.”

[Headnote 2]

This is amply supported by the record. The business agent testified: “ [I]n our craft, the

plumbing industry, out of the 35 contractors in Reno and Sparks, more than half are

self-employed, because in our books, when a man goes to work with his tools, he's working,

he's self-employed. We have so many plumbing contractors in this area that are in about the

same category as Mr. St. John. They work with tools, and, on occasion, when there is more

work than they can handle, they employ men, and they have agreed to observe the 40 hours

which is so important to the working man, that he has strived for centuries to obtain, and

especially in our community the 40-hour week is essential, in the building construction

industry. * * * If [violation of the eight-hour day] is permitted, we would lose the eight-hour

day. It would impair our ability to enforce a collective bargaining agreement. Other

contractors could not compete against a utility contractor that did not observe the eight-hour

day.”

Appellant has made his position clear by the use of the following language:

“The conflict involved here, however, was not the conflict between employer and

employee. Rather, in essence, it was a conflict between laborers. Requiring appellant to work

only forty hours a week could not possibly advance the welfare of the Union. The Trial Court

suggests that the Union was protecting its hard-earned �,��


working conditions. But the problem seems to be deeper. How did the Union protect itself?

By approaching appellant as an employer? No. It was done by demanding only that appellant

work no more than forty hours a week, which, in effect, is a demand that appellant as a

laborer, not as an employer, comply with the Union standards.

“If this is true, which appellant contends, then this problem cannot be solved by the use of

the privilege to inflict injury because such privilege is accorded only in a conflict with an

employer. This is coercion applied by laborers to another laborer. This is an interference with

the right of appellant to labor and is not and cannot be justified on the basis of the

competition which occurs between labor and management.”

The foregoing contention is amplified throughout many pages of the opening and reply

briefs and was orally argued with great earnestness. Such contention, however, has been

repeatedly rejected by the United States Supreme Court. Senn v. Tile Layers Protective

Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229; Cafeteria Employees Union v. Angelos,

320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58; Bakery Drivers Local v. Wohl, 315 U.S. 769, 62

S.Ct. 816, 86 L.Ed. 1178. These and many other cases were cited and discussed at length in

the prevailing and dissenting opinions both on the original hearing and on the motion for

rehearing in State ex rel. Culinary Workers v. Eighth Judicial District Court (known as the

White Cross Drug case), 66 Nev. 166, 207 P.2d 990, 210 P.2d 454. That case concerned itself

entirely with Nevada's right to work law (sec. 10473 NCL 1929; now NRS 613.130), as did

Jensen v. Reno Central Trades and Labor Council (known as the Lake Street Pharmacy case),

68 Nev. 269, 229 P.2d 908, decided under that same statute and under issues arising prior to

the amendment of March 14, 1951 (Nev. Stats. 1951, 111), now NRS 613.130, and prior to

the effective date of the initiative act passed at the general election of Nov. 4, 1952 (Stats.

1953, 1), now NRS 613.230-613.300.

Many state cases are in accord. In Colorado peaceful picketing to persuade a contractor to

adopt prevailing ��


wage rates was permitted. Pueblo Building and Construction Trades Council v. Harper

Construction Company, 134 Colo. 469, 307 P.2d 468. In Arkansas an injunction against

picketing was denied where the cause of the coercion was that the employer employed

nonunion electricians at wages below the prevailing union wage. Self v. Wisener, 226 Ark.

58, 287 S.W.2d 890. (Incidentally it was claimed there, as here, that the coercion was for the

purpose of enforcing employees to join the union.) In Arizona it was held that the picketing

was not unlawful where the employer refused to discuss the situation with reference to the

economic effect of the wage rate and conditions of employment prevailing on the employer's

job contrary to those prevailing in the state building industry. International Brotherhood of

Carpenters and Joiners v. Todd L. Storms Const. Co., 84 Ariz. 120, 324 P.2d 1002. It should

be noted that Arkansas and Arizona have right to work laws, and Colorado has a restrictive

statute. Appellant distinguishes these cases because in them the coercive pressure was

directed against the respective employers. Under the federal cases discussed, we do not

recognize this as a distinction. In Jensen v. Reno Central Trades and Labor Council, supra,

Justice Merrill, speaking for this court, said (68 Nev. 269, 229 P.2d 912): “Both the Senn and

Hanke cases dealt with injunctions against picketing of self-employers * * *.” (Italics

supplied.) The same is also true in Cafeteria Employees Union v. Angelos, supra.

Appellant contends that this case is controlled by International Brotherhood of Teamsters,

Etc. Union v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995, in which the Supreme Court

of the United States sustained an injunction against picketing a used-car sales business

conducted by the owner himself without employees. The purpose of the picketing was to

compel observance of a restricted work day and work week and a restriction against weekend

sales to conform with union rules and standards. The Supreme Court of the United States

bowed to the judgment of the Washington courts in striking a balance not inconsistent with

rooted traditions of a free people, and refused to say that in making �� )� ��


its choice it offended the Constitution. In such action the supreme court considered that

Washington had concluded that it was more important to safeguard the value which the state

placed upon self-employers. The supreme court said: “The relatively small interest of the

unions considerably influenced the balance that was struck. Of 115 used car dealers in Seattle

maintaining union standards, all but ten were self-employers with no employees. ‘From this

fact,' so we are informed by the Supreme Court of Washington, ‘the conclusion seems

irresistible that the union's interest in the welfare of a mere handful of members (of whose

working conditions no complaint at all is made) is far outweighed by the interests of

individual proprietors and the people of the community as a whole, to the end that little

businessmen and property owners shall be free from dictation as to business policy by an

outside group having but a relatively small and indirect interest in such policy.' 33 Wash.2d at

659, 207 P.2d at 213.” The court found nothing inconsistent in such holding with the holdings

in the A. F. of L. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Bakery Drivers Local

v. Wohl; or Cafeteria Employees Union v. Angelos, both cited supra. Nor does the Hanke

case justify any divergence on our part from recognition of the holdings in those cases.

Appellant also relies upon Building Service Employees International Union v. Gazzam,

339 U.S. 532, 70 S.Ct. 784, 789, 94 L.Ed. 1045, decided on the same day as the Hanke case.

There the United States Supreme Court affirmed Washington's injunction against peaceful

picketing to compel an employer to sign a contract with a labor union which would have

coerced his employees' choice of bargaining representative. It held that the public policy of

Washington was that workers should be free to join or not to join a union and that they should

be free from the coercion or restraint of employers of labor in the designation of their

representatives for collective bargaining, and that coercion by picketing was an attempt to

induce a transgression of this policy. The court said that it was not for it to judge the wisdom

of that policy. “The injunction granted was tailored to prevent a specific violation of an

important state law.”


[Headnote 3]

Appellant argues that such is the case here; that the union's insistence that St. John

conform to union hours could well be extended to an insistence that he conform to union

requirements as to payment of time and a half or payment of double time for overtime work,

provisions for allowance of meal time, requirement for permission of a shop steward or

business agent to work overtime, payment of travel expenses and subsistence under certain

conditions, contributions to a welfare fund, payment of double time for certain kinds of work,

allowance of pick-up time for gathering of tools and equipment, and similar requirements. If

such were true, it would in essence amount to coercion to compel St. John in effect to become

a member of the union, contrary to the provisions of Nevada's right to work law. While such

argument is not without its appeal, this case comes to us on its own limited facts, supported

by evidence as aforesaid, and for its own limited objective of the coercion practiced.

Regulation of hours and wages is basic with all unions. Regulations with respect to other

matters vary in different localities and with different unions within the same localities, and

many of them have no relation to and are without effect on the general economy and welfare.

For the union to insist that St. John conform to the 40-hour week is a far different thing from

insisting that he join the union, or from insisting that he comply with union regulations other

than hours and wages. Self v. Wisner, 226 Ark. 58, 287 S.W.2d 890. We are therefore

compelled to reject this argument.

This court in Jensen v. Reno Central Trades and Labor Council, 68 Nev. 269, 229 P.2d

908, succinctly evaluated the extent of the holdings in the Hanke and Gazzam cases largely

along the lines discussed above. See also International Brotherhood, Etc. v. Vogt, Inc., 354

U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347; United Association of Journeymen Plumbers &

Steamfitters v. Graham, 345 U.S. 192, 73 S.Ct. 585, 97 L.Ed. 946.

Unless and until the legislature of this state should see fit to enlarge or extend the

proscriptions of its present right to work law so as to make unlawful such union ��


activity as that here engaged in, which is now lawful, the same may not be enjoined by the

courts of this state.

Judgment affirmed.


____________

��76 Nev. 297, 297 (1960) Ervin v. Leypoldt��

In the Matter of the Application of Robert

Kenneth Ervin for Writ of Habeas Corpus.

ROBERT KENNETH ERVIN, Appellant v. W. E. LEYPOLDT, Sheriff of

Clark County, Respondent.

No. 4290

June 2, 1960 352 P.2d 718


Department No. 4.

Habeas corpus proceeding by one accused of murder. From order of the trial court denying

writ, petitioner appealed. The Supreme Court, McNamee, C. J., held that fact of death and the

criminal agency of another causing the death constitutes corpus delicti of homicide, and

identity of the perpetrator is not an element of the corpus delicti, and that evidence on

preliminary hearing was sufficient to justify justice of the peace in holding petitioner to

answer for the crime alleged in the complaint.

Affirmed.

Dickerson and Miles, of Las Vegas, for Appellant.

Roger D. Foley, Attorney General; George Foley, District Attorney, Clark County, and

Thomas J. O'Donnell, Deputy District Attorney, Clark County, for Respondent.

1. Criminal Law. Evidence on preliminary hearing was sufficient to justify justice of the peace in holding accused to

answer for murder.


2. Homicide. The fact of death, and criminal agency of another causing the death constitutes the corpus delicti of

homicide and identity of perpetrator of crime is not an element of such corpus delicti.

3. Habeas Corpus. On appeal from order denying application for writ of habeas corpus brought on theory that evidence on

preliminary hearing was insufficient, duty of the Supreme Court is not to pass upon sufficiency of the

evidence to warrant conviction, but merely to determine whether there is sufficient legal evidence to make

it appear that a public offense has been committed and that there is sufficient cause to believe the appellant

guilty thereof.

OPINION


This appeal is from an order denying a writ of habeas corpus.

A complaint was filed in the justice's court of Las Vegas township, Clark County, Nevada,

charging appellant with the murder on July 6, 1959, of Dolores Ann Stafford, a female child

of the age of six years. After a preliminary hearing before the justice of the peace appellant

was bound over for trial in the district court.

The only question before us on this appeal is whether or not sufficient evidence was

presented at the preliminary hearing to justify the justice of the peace in holding the appellant

to answer for the crime charged in the complaint.

Juanita Stafford testified that her daughter, Dolores Ann Stafford left her home at about

2:45 P.M. on July 6, 1959 and she did not again see her daughter alive. Shortly thereafter,

appellant upon leaving his apartment walked by Mrs. Stafford without saying a word. On July

7 the body of Dolores Ann Stafford was found in the attic of appellant's locked apartment

where at the time he was living alone and which was in close proximity to the Stafford home.

Evidence was introduced to show that appellant left Las Vegas, Nevada, for Los Angeles,

California, by train at 4:45 P.M. on July 6, 1959 and arrived in Los 5��


Angeles at midnight the same day. Thereafter and at about 6:30 A.M. on July 7, police officer

James Rose entered appellant's said apartment. The television set was by the front door, there

was broken glass on the floor, a davenport was unfolded with a stain in the center thereof, and

beside the davenport was a pair of child's panties wadded up. On the doorjamb leading into

the bedroom from the living room there was a stain, possibly of blood. On the back porch

there was a long smear of what appeared to be blood by the light switch. The condition of this

apartment as so testified by officer Rose is materially different from what officers Sleeper,

McCauley, and Heenan testified they saw when entering the said apartment at approximately

8:40 P.M. the evening before. None of these last three officers testified as to any stain on the

davenport, as to seeing a pair of child's panties beside the davenport, or as to the position of

the television set by the front door. Officer McCauley testified that the davenport was in an

upright position and that he saw nothing unusual as concerned it at all; that when he returned

the next morning the panties were lying by the couch and had not been there before, and there

was only one light burning while all of the lights were on in the house the night before. He

also noticed that the couch was not in an upright position as it was the night before. Officer

Heenan's testimony similarly related a change in the condition of the apartment from the

evening of July 6 to the morning of July 7. The body of the victim was found the morning of

July 7 and at approximately noon of that day a postmortem examination of the body was

made by Dr. Modglin. He testified that the child died as a result of a wound made by a fairly

dull knife inflicted to the anterior and internal jugular vein, that death would have resulted

within an hour after the wound had been inflicted, that the child had been dead not less than

six hours nor more than thirty hours, that his best estimate as to the time of death was about

14 or 15 hours prior to such examination, and that the wound was not self-inflicted.


With such testimony in the record appellant contends that it would have been impossible

for him to have committed the crime, because 14 or 15 hours prior to the post-mortem

examination would have been approximately 9:00 P. M. on July 6, 1959 and at that time he

would have been on the train.

Other evidence in the record discloses that when officer Rose found the child's body in the

attic he observed a blanket or bedspread and a doll by the side thereof. A knife was found in

the attic and there was evidence that a set of similar knives had been in the possession of

appellant and his wife prior to their separation a few days before. When appellant returned to

Las Vegas on July 8 and while he was enroute to the Las Vegas police station after departing

from the train, in answer to the question asked by one McColl, a newspaper editor, “Did you

kill the girl?” he answered “Yes,” and stated he had killed her because he thought she was his

wife and she had left him and the first time he realized that the girl was not his wife was

when he was in California.

Officer Handlon of the Las Vegas Police Department testified that appellant after his

return from Los Angeles stated to him that he killed the girl with a knife, then took her to the

attic, then left the house returning thereto some time thereafter on the same day, and then he

departed for Los Angeles.

A conversation between appellant and Dr. Shannon, a psychiatrist who was examining him

on behalf of the state, had been tape recorded and the tape recording was produced and heard

by the court. This conversation revealed that when the victim came into the apartment, and

asked for appellant's wife, appellant grabbed her when she attempted to leave. He took off her

panties, picked her up and put her in the attic while the little girl's mother was calling her

from outside. There he cut her or hit her with the knife, put the spread over her head, and

threw her doll into the attic.


[Headnotes 1, 2]

There was other and additional evidence in the lengthy transcript. While much of it is

conflicting and, disregarding his admissions, could warrant a finding that appellant was not in

Las Vegas at the time the crime was committed, still there is sufficient evidence to connect

him with the crime. The evidence shows that a knife wound resulted in the death of the victim

and was inflicted through the agency of another. As applied to homicide cases these two

elements, to wit, the fact of death and the criminal agency of another causing the death,

constitute the corpus delicti of the crime. They were proven aliunde any confession or

admission of appellant. The identity of the perpetrator of the homicide is not an element of

the corpus delicti. Sefton v. State, 72 Nev. 106, 295 P.2d 385; State v. Fouquette, 67 Nev.

505, 221 P.2d 404.

The evidence to connect appellant with the commission of the crime other than his

admissions consisted in part of the following: the criminal act took place in appellant's locked

apartment from where he was seen walking soon after the disappearance of the victim; he had

been the sole occupant of the apartment on the day of the homicide; the finding of the child's

doll beside her body and the body covered by the blanket all as related by the appellant in his

admission. See Sefton v. State, supra.

Other facts and circumstances appearing from the record in addition to the evidence

aforesaid would tend to identify appellant as the perpetrator of the crime, but further detailing

the evidence is not required because what has already been set out would in itself be adequate

to justify the conclusion of the justice of the peace that there was sufficient cause to believe

appellant guilty as charged.

[Headnote 3]

In this appeal it is not our duty to pass upon the sufficiency of the evidence to warrant the

conviction of ��


the appellant. All that is required is that there be sufficient legal evidence to make it appear

that a public offense has been committed and that there is sufficient cause to believe the

appellant guilty thereof. Raggio v. Bryan, 76 Nev. 1, 348 P.2d 156.

Affirmed.


____________

��76 Nev. 302, 302 (1960) Kennedy v. Kennedy��

MAGGI KENNEDY, Appellant, v.

JACK KENNEDY, Respondent.

No. 4267

June 10, 1960 352 P.2d 833

Appeal from the Second Judicial District Court, Washoe County; Clel Georgetta, Judge,

Department No. 3.

Tort action by wife against her husband to recover damages for personal injuries resulting

to her from a bullet which she alleged her husband negligently discharged from a gun. The

trial court rendered judgment for defendant and plaintiff appealed. The Supreme Court,

McNamee, C. J., held that common-law rule that wife cannot sue husband for personal tort

prevails in absence of permissive statute to contrary, and neither statute relating to actions by

or against a married woman nor statute granting wife right to sue alone to enforce against

third persons her common-law right to security of her person is such a statute.

Affirmed.

Nada Novakovich, of Reno, for Appellant.

Goldwater, Taber and Hill, of Reno, for Respondent.

1. Statutes. Nevada legislature by readopting California Code of Civil Procedure was presumed to have intended to

adopt therewith construction placed on provision thereof by Supreme Court of California. West's Ann.Cal.

Code Civ.Proc. § 370; NRS 12.020.


2. Husband and Wife. Common-law rule that wife cannot sue husband for personal tort prevails in absence of permissive statute

to contrary, and neither statute relating to actions by or against a married woman nor statute granting wife

right to sue alone to enforce against third persons her common-law right to security of her person is such a

statute. NRS 12.020, 41.170.

OPINION


This is a tort action by a wife against her husband to recover damages for personal injuries

resulting to her from a bullet which she alleges her husband negligently discharged from a

gun. The lower court granted the husband's motion to dismiss the complaint. Appeal is from

the judgment of dismissal.

The sole question involved in this appeal is whether a wife has a cause of action against

her husband for personal injuries caused by his negligence.

At common law there was no cause of action in favor of a wife against her husband

sounding in either tort or contract. Although appellant in her opening brief concedes this to be

the common-law rule, she maintains that the rule has been abrogated in Nevada by NRS

12.020. 1

This statute by its express provisions has modified the common law to the extent of

creating in the wife a cause of action in her favor against her husband when the action

concerns either her separate property or her interest in the homestead. She already had such

right as against third persons at common law, but she was unable to enforce the same until the

enactment of said statute without joining her husband as a party plaintiff. But even this statute

did not empower her to sue alone to enforce against third persons her common-law right to

security of her person. It was not until 1949 that such ��

____________________

1

NRS 12.020: “Action by or against a married woman. When a married woman is a party, her husband must

be joined with her, except: 1. When the action concerns her separate property, or her right or claim to the

homestead property, she may sue alone. 2. When the action is between herself and her husband, she may sue or

be sued alone. 3.* * *.”


right was given her by the legislature. Nev. Stats. 1949, ch. 42 (now NRS 41.170).

By the weight of authority in the United States the rule is that even under statutes similar

to NRS 12.020 the wife has no cause of action against her husband to recover for an injury to

her person. There is a respectable minority, however, which holds that such a statute

impliedly creates in the wife such a cause of action. The annotation in 43 A.L.R.2d 632

summarizes the rule in each of the various states.

It is not necessary to consider at this time the reasons given to support either the majority

or minority rule, because of our conclusion that the majority rule is the law in Nevada.

In the case of Peters v. Peters (1909), 156 Cal. 32, 103 P. 219, 221, 23 L.R.A. (n.s.) 699,

the California Supreme Court held that section 370 of the California Code of Civil Procedure,

the pertinent provisions of which are identical with NRS 12.020, could not be construed to

show an intention to permit actions for tort between husband and wife. “It would be a forced

interpretation to attempt to discern in that declaration (Code Civ. Proc. § 370), or in any of

the provisions of the Civil Code, an intent to make a departure from the common law so

radical, and so opposed to its general policy, as the authorization of a suit by the husband or

wife against the other for injuries to the person or character.” In Watson v. Watson, 39 Cal.2d

305, 246 P.2d 19, in approving its decision in the Peters case the same court said as late as

1952: “It is the established rule generally and is the law in California that where the parties

are lawful spouses the one may not sue the other for damages in tort.”

[Headnote 1]

In 1911 our legislature readopted the California Code of Civil Procedure, which included

Code Civ. Proc. § 370 (1911 CPA § 47; 1912 RL § 4989; NCL § 8546; NRS 12.020); 2 so

we must presume that the legislature in 1211��

____________________

2

A similar statute adopted from the Practice Act of California had been in existence in Nevada since 1861

(Sec. 7, Chap. 103, of the 1861 Laws of the Territory of Nevada) and can be found in Cutting, Compiled Laws

of Nevada (1900) sec. 3102.


1911 intended to adopt this statute with the construction already given it by the supreme court

of the parent state. Minden Butter Mfg. Co. v. District Court, 57 Nev. 29, 56 P.2d 1209;

O'Brien v. Commissioners, 41 Nev. 90, 167 P. 1007. See also Williams v. Glasgow, 1 Nev.

533, 538; Whitmore v. Shiverick, 3 Nev. 288, 303; Weil v. Howard, 4 Nev. 384, 393.

Appellant directs attention to the case of Fredrickson-Watson Constr. Co. v. Boyd (1940),

60 Nev. 117, 102 P.2d 627, which approved the rule that damages for personal injuries to a

wife are her separate property. 3 Because of this rule she contends that NRS 12.020 which

gives her the right to sue alone “when the action concerns her separate property” and which,

when the action is between her and her husband, gives her the right to sue alone, is a positive

declaration changing the common-law rule by permitting her to sue her husband for a

personal tort. The Fredrickson case was a suit by husband and wife against a third person for

personal injuries to the wife negligently inflicted. The said rule emerging therefrom as well as

NRS 41.170 merely express the common-law rule. They did not create any new cause of

action in favor of a wife, nor broaden the scope of NRS 12.020 so as to give her thereunder a

remedy where she had no existing cause of action. Cf. Strong v. Strong, 70 Nev. 290, 267

P.2d 240, 269 P.2d 265.

[Headnote 2]

It is our conclusion that the common-law rule that a wife cannot sue her husband for a

personal tort prevails in Nevada in the absence of a permissive statute to the contrary and

neither NRS 12.020 nor NRS 41.170 is such a statute.

Affirmed.


____________________

3

The ruling of the Fredrickson case in this respect was made statutory in 1949. NRS 41.170.

____________

��76 Nev. 306, 306 (1960) Poe v. La Metropolitana Co.��

CARL POE Appellant, v. LA METROPOLITANA COMPANIA NACIONAL DE

SEGUROS, S.A., HAVANA, CUBA, Respondent.

No. 4272

June 13, 1960 353 P.2d 454

Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.

Bowen, Judge, Department No. 1.

Action on policy insuring truck against fire. The trial court rendered judgment denying

relief and insured appealed. The Supreme Court, Badt, J., held that where insured tried his

action on theory that representations made in his written application for insurance were not

false and could not be held to void the policy, insured did not object to evidence of fraud

upon ground that fraud had not been pleaded and, even in his briefs, filed in trial court,

insured raised no question attacking insufficiency in pleading fraud as a defense, on appeal,

insured could not assume attitude of insufficiency of the special plea of fraud.

Affirmed.

Stewart & Horton, and John J. McQune, of Reno, for Appellant.

Vargas, Dillon & Bartlett, and Alex. A. Garroway, of Reno, for Respondent.

1. Appeal and Error. Where plaintiff tried his action on policy insuring truck against fire on theory that representations made in

his written application for insurance were not false and could not be held to void the policy, plaintiff did

not object to evidence of fraud upon ground that fraud had not been pleaded and, even in his briefs, filed in

trial court, the plaintiff raised no question attacking insufficiency in pleading fraud as a defense, on appeal,

plaintiff could not assume attitude of insufficiency of the special plea of fraud. NRCP 15(b), 52(a).

2. Insurance. In action on policy insuring truck against fire, evidence sustained finding that false representations of

insured, including giving his home address as business and garage address, whereas business was

conducted and truck kept in garage at �� 0 ��<��<�� ,�� <��<��


premises of insured's father-in-law, who purportedly had sold truck to insured after father-in-law admitted

committing arson and his fire insurance was canceled, induced contract of insurance. NRCP 8(c), 9(b).

3. Insurance. In action on policy insuring truck against fire, wherein insurer contended that after insured's

father-in-law's fire policies had been canceled because father-in-law had admitted committing arson, a

scheme was devised whereby truck would be sold to insured, who would be able to procure insurance and

keep trucks running, admission in evidence of written confession of father-in-law that he had been guilty of

arson was not error. NRCP 8(c), 9(b).

OPINION


Appellant has appealed from the district court's judgment denying him relief for loss by

fire of a truck insured by respondent. The loss occurred March 18, 1958.

Although appellant lists the issues involved in this appeal as (1) whether the

representations of appellant in the application for insurance constituted fraud; (2) whether

appellant's conduct in relation to respondent constituted fraud; and (3) whether appellant's

representations in his application for insurance constituted misrepresentations justifying

avoidance of the policy; and although appellant's conclusion is that the evidence does not

justify a finding of fraud, appellant does include in his opening brief the contention that fraud

was not pleaded as an affirmative defense and that this defect in the pleading requires a

reversal.

In support of this contention appellant relies on NRCP Rule 8(c): “Affirmative Defenses.

In pleading to a preceding pleading, a party shall set forth affirmatively * * * fraud, * * * and

any other matter constituting an avoidance or affirmative defense. * * *” He also relies upon

NRCP Rule 9(b): “Fraud * * *. In all averments of fraud or mistake, the circumstances

constituting fraud or mistake shall be stated with particularity. * * *” (��0 �� M


The company's answer pleaded as a special defense:

“In his application for insurance Carl Poe was guilty of misrepresentations. In reliance upon

that application, certificate No. A 1087 was issued by defendant but said certificate was null

and void because of such misrepresentations.”

Assuming that by reason of the foregoing rules, as well as often enunciated rules of

pleading prior to the adoption of the rules, that the above-quoted pleading is defective as a

plea of fraud, it is nonetheless clear to us that such defective pleading cannot require a

reversal in the present instant. NRCP Rule 15(b) provides: “When issues not raised by the

pleadings are tried by express or implied consent of the parties, they shall be treated in all

respects as if they had been raised in the pleadings. * * * [F]ailure * * * to amend [to conform

to the evidence] does not affect the result of the trial of these issues. * * *”

At the beginning of the trial, after plaintiff's counsel had stated the nature of his case and

the court asked defendant's counsel to give his version of his defense, the latter stated:

“[Plaintiff] made an application for the policy, and we contend that in the application he

made certain representations [or] warranties which became a part of the policy, and that the

policy was issued upon the strength of those representations and warranties, and that they

were wrong. In other words, he misrepresented certain facts * * *.”

During the course of the trial when respondent's application for the insurance was offered

in evidence appellant, on objecting, argued: “The application is material in this case on one

thing only, and that is this: did materially false representations, warranties, induce said

contract? If they did, then we are out. In other words, the contract never became a contract if

materially false representations induced it * * * [The application] is a representation upon

which the contract is based.”

Requests for sundry admissions had been made by both parties before trial. The nature of

these requests, and �� 0 ��


more particularly the answers thereto, made it abundantly evident that the asserted fraudulent

misrepresentations of the plaintiff would be the basis of the defendant's defense to the action.

[Headnote 1]

Although numerous objections were made to the admission of evidence at the trial, it does

not appear that any of such objections were made upon the ground that fraud had not been

pleaded. Appellant tried the case below on the theory that the representations made in his

written application for insurance were not false and could not therefore be held to void the

insurance policy. Even in his briefs filed in the trial court, he raised no question attacking the

insufficiency in pleading fraud as a defense. Under the circumstances he cannot on this appeal

assume the attitude of the insufficiency of the special plea. Rule 15(b) supra. Clark County v.

State, 65 Nev. 490, 199 P.2d 137. See also in general and well-recognized support of this rule

71 C.J.S. 1137, Pleading, sec. 564 (2); id. 1176, Pleading, sec. 592; id. 1146, Pleading, sec.

573.

No formal findings were made by the court and for the facts found we look to the written

opinion and decision. NRCP Rule 52(a).

“It is evident that August Manke, the father-in-law of plaintiff, was the owner of the

Diamond T tractor, as well as other trucking equipment; that he had been engaged in the

business of public hauling in Nevada and California for a number of years and was the

possessor of a certain Public Service Commission Certificate, No. 57 which was in effect on

January 28, 1958, when on that day, August Manke executed an assignment of the License

No. 57 and a bill of sale of the trucking equipment, including the Diamond T tractor, with the

understanding being, according to the assignment and bill of sale, that Poe would assume

certain indebtedness against some of the equipment, execute a $12,000 promissory note

without interest payable in three years, and in addition it appears from defendant's Exhibit 6

that the �� 5�� C��,��


profits from the business were to be turned over to August Manke.

“August Manke's insurance on the vehicle in question with the Atlas Insurance

Underwriters was cancelled on January 20, 1958, after August Manke previously had

admitted committing the crime of arson.

“While one might expect a certain change in the operation of the business after January 28,

1958, there appears to be none. A random recital of those factors would indicate that the

trucks and equipment remained at Mr. Manke's residence, 597 Grand Canyon Boulevard,

although plaintiff's residence was 1570 Clemson Drive, that business calls concerning the use

of the equipment were made to August Manke as usual; that the books of the business were

kept by Mr. Manke's old bookkeeper until at least June or July, 1958; and that plaintiff didn't

have access to the books until that time, some months after the fire; that while plaintiff had

worked for Manke, while stationed at Stead Air Force Base, he went to work for Shoshone

Bottling Works in 1956, later transferring to Pepsi Cola in 1957, where he had an 8 hour, 5

day a week job and was so employed on March 18th; that Bill and Bob Manke had been

employed prior to January 28, 1958, by August Manke and were so employed after that, and

although it does appear that plaintiff sought to show they were his employees after January

28, 1958, no social security, withholding or other employment taxes were withheld. In fact no

evidence was given to show any labor payments were made by the plaintiff at any time after

that.

“A fair appraisal of the entire record clearly indicates to me that matters were the same

after January 28 as they were before.

“It is true that plaintiff filed an application to transfer Manke's Public Service Commission

Permit No. 57 on February 5, 1958, but the transfer was not approved until August 25, 1958,

and then only after two conferences with Robert Allen of the Commission.

“There is testimony that the green title certificates were endorsed by August and Mabel

Manke, that they were delivered to Bill Manke to take to Carson City to �� C��1 ��


effect a transfer, that that had not been done by March 18, and that they were destroyed in the

fire.

“Perhaps there are other facts, which I have overlooked, but essentially those enumerated

clearly indicate a situation where Mr. Manke could not obtain any insurance on his trucks,

either fire or public liability, as required by the Statutes of Nevada, that a scheme was devised

whereby a sale would ostensibly be effected whereby Poe would become the new owner, who

would then be able to procure insurance and keep the trucks running.”

[Headnote 2]

The written application for insurance contained the following:

“This application shall not be binding on Underwriters unless and until a policy shall be

issued and delivered in accordance herewith * * * and in accordance with all terms thereof

and the said applicant hereby covenants and agrees to and with Underwriters that the

foregoing statements and answers are a just, full and true exposition of all the facts and

circumstances with regard to the risk to be insured, insofar as same are known, to the

applicant, and the same are hereby made the basis and condition of this insurance.”

The learned trial judge commented that in answer to questions, appellant stated on the

application: “Has permit in Nevada” when in fact he did not; that, having the opportunity of

describing the true facts in answer to other questions, he chose not to answer. The court

referred to the occasions of his giving his home address as his business address and garage

address, whereas the business was conducted and the truck kept in garage, as in the past, at

the premises of appellant's father-in-law; that appellant's statement that he operated all

equipment owned was not in accordance with the fact. The court held that the matters were

material and that they did not give the true picture of ownership, operation, or business

experience; that the representations were not just, full, and true, and that the situation

warranted a conclusion that judgment must be entered for the defendant.


The record contains substantial evidence justifying the trial court's conclusion that the

false representations induced the contract of insurance.

[Headnote 3]

Error is asserted in the admission in evidence, over objection, of the written confession of

August Manke that he had been guilty of arson on January 7, 1958 when he set fire to his

home. As a result of this confession, the insurance company concealed the then existing fire

insurance. The only grounds of the objection were that the written confession was “hearsay

and upon the further ground that it is not relevant or germane to any issue in this case.”

Appellant's failure to make a full disclosure made the statement relevant to the issue of

misrepresentation. It was not offered to prove the truth of the matters therein stated, but only

the fact of its execution. Whether true or not, it tended to justify respondent's cancellation of

the earlier policies issued to Manke. It was properly admitted.


McNamee, C.J., and Pike, J., concur.

____________

��76 Nev. 312, 312 (1960) Wood v. State��

ROBERT CHARLES WOOD, Appellant, v.


No. 4269

June 16, 1960 353 P.2d 270

Appeal from the Eighth Judicial District Court, Clark County; John C. Mowbray, Judge,

Department No. 3.

Defendant was convicted of embezzlement. The trial court rendered judgment and

defendant appealed. The Supreme Court held that under statute to effect that when offense is

described with sufficient certainty to identify the act, an erroneous allegation as to person

injured shall not be deemed to be material, failure to ��$�� $��

��76 Nev. 312, 313 (1960) Wood v. State��

allege identity of civic organization as a legal entity was immaterial and did not go to

sufficiency of information charging that defendant had unlawfully appropriated moneys

entrusted to him by the civic organization.

Affirmed.

Robert Santa Cruz, of Las Vegas, for Appellant.

Roger D. Foley, Attorney General, George Foley, District Attorney, Clark County, and

Charles L. Garner, Deputy District Attorney, Clark County, for Respondent.

1. Indictment and Information. Under statute to effect that when offense is described with sufficient certainty to identify the act, an

erroneous allegation as to person injured shall not be deemed to be material, failure to allege identity of

civic organization as a legal entity was immaterial and did not go to sufficiency of information charging

that defendant had unlawfully appropriated moneys entrusted to him by the civic organization. NRS

173.280, 174.310, 175.560.

2. Indictment and Information. By failing to demur to information, defendant waived all defects therein except as to sufficiency of

information to state a public offense. NRS 174.310.

3. Embezzlement.

Evidence sustained conviction for embezzlement. NRS 173.280.

4. Embezzlement. In prosecution for embezzlement of civic organization's funds entrusted to defendant, bank check of

organization signed by its treasurer and president sufficiently evidenced fact that organization was capable

of owning property in view of defendant's admissions that he received money or credits therefor. NRS

173.280.

OPINION

Per Curiam:

Defendant was charged by information with the crime of embezzlement in that he “being a

member of the Las Vegas Junior Chamber of Commerce, and having been entrusted with the

sum of $355 lawful money of the United States, said money being the property of the said Las

Vegas Junior Chamber of Commerce, wilfully, �� F��G��

�� '

��76 Nev. 312, 314 (1960) Wood v. State��

unlawfully and feloniously [did] appropriate and use the said monies for purposes other than

that for which the same was entrusted, with the intent to steal the same and defraud the owner

thereof.”

After a trial by jury, defendant was found guilty and this is an appeal from the judgment

based on jury verdict.

Several errors have been assigned, but by deciding whether the information sufficiently

charges an offense and the proof sustains the charge, all of the matters contained in the

assigned errors will have been disposed of.

Defendant contends that the failure of the information to designate the nature of the Las

Vegas Junior Chamber of Commerce as a corporation or other entity capable of owning

property renders it fatally defective, and therefore the allegations in the information were

insufficient to give the trial court jurisdiction.

Many authorities sustaining such contention can be found in the annotation appearing in

88 A.L.R. 485. These authorities are not controlling in Nevada because of statute.

[Headnote 1]

NRS 173.280 provides: “Erroneous statement as to person injured: Effect. When an

offense involves the commission of or an attempt to commit private injury, and is described

with sufficient certainty in other respects to identify the act, an erroneous allegation as to the

person injured, or intended to be injured, shall not be deemed to be material.”

Under a statute containing identical provisions, it was held in People v. Cloud, 100

Cal.App. 792, 281 P. 79, 80, that an information which charged the defendant with stealing a

rug, the property of William Fox, was sufficient, though the evidence disclosed the fact that

the rug was rented, not by William Fox, but by William Fox Film Corporation, which

corporation had possession of the rug at the time it was stolen. The court in that case said:

“[T]he undoubted weight of authority is to the effect that, where the identification of the

transaction �� '

��76 Nev. 312, 315 (1960) Wood v. State��

which resulted in the commission of the offense is established to the extent that in the event

of a second prosecution of the defendant for the same offense he may readily protect himself

by proper plea, the allegation in the first action as to ownership of the stolen property is

immaterial.” And in People v. Leong Quong, 60 Cal. 107, the California Supreme Court said:

“The name of the owner of the property stolen is not a material part of the offense charged.”

It should be noted also that the rule relied on by appellant, though favored in early

decisions of some 10 or 11 states, has not met with general acceptance. In People v. Mead,

200 N.Y. 15, 92 N.E. 1051, 140 Am.St.Rep. 616, in which the defendant was indicted for

grand larceny for having appropriated to his own use a sum of money “the property of “The

People's Mutual Life Insurance Association and League'” and in which the statute defined

embezzlement from “any person, association or corporation,” the court of appeals of New

York said: “Under the old rule which prevailed long ago in England, which required great

particularity in the description of persons, it was necessary to allege the incorporation of a

corporation. But that rule has not been generally accepted in this country, though there is

much contrariety between the decisions of the various states.” It concluded that the failure to

charge that the League was an association or corporation was not vital.

In McCowan v. State, 58 Ark. 17, 22 S.W. 955, although the court held the indictment to

be insufficient as laying the ownership of the embezzled property simply in “W. L. Connevey

& Co.,” 1 the court quoted Wharton Crim. Pl. sec. 166b as finding the reason for the rule

enabling the defendant successfully to plead his acquittal or conviction should he be again

indicted for the same offense, being the same reason stated in People v. Cloud, supra.

____________________

1

The Arkansas court in reaching this conclusion relied upon earlier California cases which did not have the

approval of People v. Cloud and other later California cases. Furthermore the same court reversed itself in this

respect in Hughes v. State, 109 Ark. 403, 160 S.W. 209.

��76 Nev. 312, 316 (1960) Wood v. State��

In the case of Evershaw v. Moran, 57 Nev. 417, 65 P.2d 877, 878, this court had occasion

to consider NCL 10854 (now NRS 173.280) and said: “It is the evident purpose of this statute

to obviate mistrials where the defendant is in no way misled by such a mistake as appears in

this case. That the defendant was not misled appears from his own testimony and from the

fact that he makes no contention that he was. He is here relying upon a bare technicality,

which the statute above quoted sought to and does overcome.”

[Headnote 2]

Defendant did not at his arraignment either before or after he entered his not guilty plea

nor did he at any time during the presentation of the evidence at the trial raise any objection

to the form or sufficiency of the information. Objection to the information as being defective

was not raised until after all the evidence was in. That defendant was not misled by any

defects in the information appears from this conduct of the defendant. The information, it

must be admitted, is far from being a model, but by failing to demur to the information

defendant waived all defects therein except as to the sufficiency of the information to state a

public offense. NRS 174.310; State v. Derst, 10 Nev. 443; State v. O'Flaherty, 7 Nev. 153;

see also NRS 175.560. For the reasons hereinbefore stated, the failure to allege the identity of

the Las Vegas Junior Chamber of Commerce as a legal entity is immaterial and does not go to

the sufficiency of the information.

If it may be said that NRS 173.280, People v. Cloud, supra, People v. Leong Quong, supra,

and Evershaw v. Moran, supra, modified and relaxed the common-law rule only with respect

to the identity of the person from whom the embezzlement is charged, it appears to us to be a

logical sequence or a natural extension of those authorities to hold that the old rule is likewise

modified and relaxed with reference to the necessity for allegation and proof of the corporate

or other entity of the person from whom the money or property was embezzled. In the instant

case the “identification of the transaction,” People v. Cloud, supra, is such, both in the��

��76 Nev. 312, 317 (1960) Wood v. State��

information and the proof, that in the event of a second prosecution for the same offense he

could readily protect himself by proper plea.

During the trial the state offered evidence to prove that defendant became a member of the

Las Vegas Junior Chamber of Commerce March 25, 1959. On April 8, 1959 he was

appointed Helldorado Float Chairman by the President of the Junior Chamber and on April

16, 1959, he received a check from the Junior Chamber in the sum of $450 to pay the

expenses anticipated in preparing a float for the Helldorado Parade. On April 23, 1959 while

he was in the county jail charged with an offense unconnected with the present case, he was

told that the Junior Chamber wanted its money back. On April 30, 1959 defendant refunded

$95 to the Junior Chamber, 2 and at that time stated he no longer had money sufficient to

make restitution in full, that the money was gone, and that it was not used for the purpose for

which it was entrusted. No work whatsoever was ever done on the float for this $450.

[Headnotes 3, 4]

This evidence was sufficient to prove all of the material allegations contained in the

information. State v. Trolson, 21 Nev. 419, 32 P. 930. The bank check of the Las Vegas

Junior Chamber of Commerce, signed by its treasurer and president, sufficiently evidenced

the fact that the Las Vegas Junior Chamber of Commerce was capable of owning property in

view of defendant's admissions that he received money or credits therefor.

Judgment affirmed.

____________________

2

The refund was in the form of his personal bank check for this amount. The balance in defendant's bank

account was insufficient to cover this check until the President of the Junior Chamber made a deposit of $16.66

to defendant's account.

____________

��76 Nev. 318, 318 (1960) Johnson v. Johnson��

FREDERICK RICHARD JOHNSON, Appellant, v.

BOBBIE BEATRICE JOHNSON, Respondent.

No. 4273

June 17, 1960 353 P.2d 449

Appeal from judgment of the Second Judicial District Court, Washoe County; A. J.

Maestretti, Judge, Department No. 2.

Action by wife for a divorce, wherein husband filed a counterclaim. The trial court

rendered judgment granting plaintiff a divorce and other relief, and defendant appealed. The

Supreme Court, Pike, J., held, inter alia, that the evidence sustained finding and judgment

granting wife a divorce on ground of extreme cruelty, and that awarding community property

asset, consisting of a coffee shop, to husband and requiring him to pay wife in installments

$5,000 for her interest therein and one-half of balance owing on community indebtedness,

incurred in connection with acquisition of coffee shop and secured by deed of trust on

dwelling house, owned by wife as her separate property, constituted in effect a division of

community property within the jurisdiction of court under statute. NRS 125.150.

Judgment affirmed.

(Rehearing denied July 15, 1960.)

Belford, Anglim & Brown, of Reno, for Appellant.

Parraguirre, Parraguirre & Parraguirre, of Reno, for Respondent.

1. Divorce. Where trial court in granting wife a divorce found that allegations of her complaint as to extreme cruelty

of husband were true but made no finding on issue of adultery, divorce must have been granted on ground

of extreme cruelty, though conclusions and decree did not specifically so state, and failure to find on issue

of adultery must be construed as showing failure of wife to establish such cause for divorce.

2. Divorce. In divorce action by wife, evidence sustained finding that ��

��


acts of husband, relied on by wife as constituting extreme cruelty and hence ground for divorce, were

without cause or provocation by wife.

3. Divorce. In divorce action by wife, evidence showed more than a single act of violence by husband, constituting

extreme cruelty as ground for divorce, though all such acts occurred on a single occasion.

4. Divorce. The character of a single act and the circumstances under which it was committed may be such as

reasonably to cause apprehension of a repetition and be sufficient to establish extreme cruelty as ground for

divorce.

5. Divorce. In divorce action by wife, trial court, having both parties before it, was in a position to evaluate the

consequences of husband's unprovoked conduct as basis for causing wife to have a continuing

apprehension of the repetition of such conduct.

6. Divorce. Evidence sustained finding and judgment granting wife a divorce on ground of extreme cruelty.

7. Divorce. Record on appeal from judgment granting wife a divorce on ground of extreme cruelty sufficiently

disclosed that issue of extreme cruelty was tried with consent of the parties, as shown by their respective

testimony, though further testimony by wife, after she had testified concerning various acts of cruelty, had

been objected to on ground that complaint did not sufficiently allege extreme cruelty as ground for divorce,

and where husband did not raise the point on appeal, under rules of procedure, issue of extreme cruelty

must be treated in all respects as though it had been raised in the pleadings. NRCP 15(b).

8. Divorce. In granting a divorce and awarding to husband community property asset, consisting of coffee shop,

which it was impracticable for the parties to continue operating together and which could not be divided,

ordering husband to pay wife in installments $5,000 for her interest in coffee shop and one-half of the

balance owing on community indebtedness, incurred in connection with acquisition of coffee shop and

secured by deed of trust on dwelling house, owned by wife as her separate property, constituted in effect a

division of community property within statutory jurisdiction of court. NRS 125.150.

9. Divorce. The amount of community property indebtedness must be considered in disposing of community property

under statute in granting a divorce. NRS 125.150.


OPINION


[Headnote 1]

This is an appeal by the husband from a judgment of the trial court granting a divorce and

other relief to the wife. The wife's amended complaint alleged in Paragraph VIII thereof,

“That on or about the 25th day of May, 1958, the defendant struck and hit the plaintiff and as

a result of such striking and hitting, the plaintiff suffered a fractured rib, bruises about her

head and body and was otherwise injured.” Paragraph IX alleged, “That since the marriage of

the parties, defendant has committed adultery, remaining unforgiven.” The husband's answer

denied the allegations of cruelty and adultery and his counterclaim alleged extreme cruelty on

the part of the wife as a cause for divorce. The court, sitting without a jury, found in favor of

the wife on the issue of divorce. It found, “That since the marriage of the parties, defendant

has treated plaintiff with extreme cruelty as alleged in Paragraph VIII of plaintiff's complaint,

and that such allegations are true, and that all of the acts of extreme cruelty were without

cause or provocation on the part of plaintiff and have caused said plaintiff intense pain,

anguish and suffering and seriously interfered with and impaired her health and made further

cohabitation impossible.” As the court made no finding with reference to adultery, it

necessarily appears that the divorce was granted on the ground of extreme cruelty although

the conclusions and decree do not specifically so state. Also, the failure of the court to find on

the issue of adultery must be construed as showing a failure on the part of the wife to

establish that cause for divorce. State ex rel. Department of Highways v. Olsen, 76 Nev. 176,

351 P.2d 186; Peterson v. Wiesner, 62 Nev. 184, 146 P.2d 789; Burlington Transportation

Co. v. Wilson, 61 Nev. 22, 24, 110 P.2d 211, 114 P.2d 1094.

[Headnote 2]

Appellant contends that the finding of extreme cruelty � ��


is not supported by the evidence. As the basis for this contention, he urges that the

uncontradicted testimony of the husband establishes that any of the acts of cruelty found by

the court were provoked by conduct on the part of the wife. As to the occurrence of May 25,

1958, the testimony of the wife and that of the husband is diametrically opposed with

reference to hitting, biting, kicking, striking, provocation or lack thereof. There was ample

evidence before the trial court to sustain its finding that the acts committed by the husband

were without cause or provocation on the part of the wife.

[Headnotes 3, 4]

The husband contends that the finding of a single act of violence by him does not support

the judgment of divorce. The evidence shows more than a single act of violence, although it is

true all occurred on a single occasion. However, the character of a single act and the

circumstances under which it was committed, may be such as reasonably to cause

apprehension of a repetition and suffice to establish the ground of extreme cruelty. Kapp v.

District Court, 31 Nev. 444, 103 P. 235; Crabtree v. Crabtree, 154 Ark. 401, 242 S.W. 804,

806, 24 A.L.R. 912.

[Headnote 5]

The trial court had both parties before it and was in a position to evaluate the

consequences of the husband's unprovoked conduct as a basis for causing the wife to have a

continuing apprehension of the repetition of such conduct by the husband. Cf. Coolman v.

Coolman, 76 Nev. 43, 348 P.2d 471.

[Headnote 6]

The finding of the trial court that the husband treated the wife with extreme cruelty, and

the judgment thereon, must be sustained.

[Headnote 7]

After the wife had testified concerning the occurrences of May 25 and other acts of cruelty

on the part of the husband, further testimony by the wife was objected to on the ground that

the complaint did not sufficiently allege extreme cruelty as a cause for divorce. Appellant�� 0 ��


does not raise this point on appeal, and we find it unnecessary to consider the sufficiency of

respondent's pleading of the cause of action upon which she prevailed. The record sufficiently

discloses that the issue of extreme cruelty was tried with the consent of the parties as shown

by their respective testimony. Accordingly, such issue must be treated in all respects as

though it had been raised in the pleadings. NRCP 15(b).

During coverture the parties had acquired a coffee shop and certain other assets, all of

which were community property. Prior to the marriage the wife owned a dwelling house,

constituting her separate property. There was an indebtedness of about $4,000 on the dwelling

house at the time that the parties intermarried. In connection with the acquisition of the coffee

shop the parties to this appeal, after their marriage, borrowed $5,700 with a deed of trust on

the dwelling house to secure payment of the same. Some $4,000 of the proceeds of this loan

was used to pay off the preexisting indebtedness on the property, and about $1,500 was

applied to either the purchase or improvement of the coffee shop.

[Headnote 8]

The husband and wife ceased to live together on May 18, 1958 and after that date the

husband continued to operate the coffee shop while the wife, living separate and apart from

him, had employment at a casino. The testimony of the wife, with reference to more than

three years during which she worked long hours at the coffee shop, and her other

contributions to such community property, were before the court. After granting an absolute

divorce to the wife the divorce decree made provision for the custody and support of a minor

child and provided that the husband pay to the wife the sum of $5,000, “* * * as and for

plaintiff's interest in the business known as Bobbies Coffee Shop, * * *” in installments of

$1,000 each, on or before specified dates, and also that the husband pay to the wife one half

of the balance owing on the loan and secured by the deed of trust on the wife's house, such

payments to be made ��


in monthly installments. The decree also provided for a specific division to be made between

the parties of certain corporate stock shown to have been their community property.

Appellant contends that the trial court was without power to direct appellant to pay to

plaintiff $5,000 for her interest in the coffee shop or to pay one half of the balance unpaid on

the promissory note. In support of this contention he cites the decision of this court in Thorne

v. Thorne, 74 Nev. 211, 326 P.2d 729, as restricting the power of the court in granting a

divorce, to the granting of alimony, to the disposition of the community property and to the

setting apart of such portion of the husband's separate property for the support of the wife as

appears proper. Appellant argues that, as there was nothing in the pleadings, evidence, or

findings that there was any money belonging to the community, the payments required to be

made by defendant after the divorce would be from his separate funds, and that such

provisions of the judgment were not within the jurisdiction of the court.

We are unable to agree with appellant's contention. Appellant does not dispute that the

coffee shop was a community property asset of the parties. Evidence as to the value of this

community asset varied but, under any construction of the evidence, the coffee shop appears

to have had a substantial value. Defendant had listed it for sale with a real estate firm for

$20,000. The husband had operated it for a number of years and, from all that appears, it

would have been impracticable to undertake a division of this asset. The relationship of the

parties was such as to have completely discounted the continued operation of the coffee shop

with both of them participating.

Accordingly, we view the action taken by the trial court as being in effect a division of

community property, with the husband receiving the community property asset and being

required to pay the wife for her interest in the same. As above noted, the trial court so stated

in this portion of the judgment. Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355.


[Headnote 9]

At the time of the trial the $5,700 secured indebtedness on the wife's separate property had

been reduced, by payments made, to a balance remaining of about $4,000. The court ordered

the husband to pay to the wife one half of such remaining balance of the indebtedness, or

what amounted to $2,000, in monthly payments of $50 each. This indebtedness was an

indebtedness of the community, incurred by the parties in 1953, and in ordering the husband

to pay his one half of such indebtedness the court was likewise within its jurisdiction in

making a division of community property. In determining the value of the community

property assets, the amount of community property indebtedness had to be considered, and

the court took this means of equalizing the division. NRS 125.150. Leland v. Leland, 71 Nev.

346, 291 P.2d 905; Ormachea v. Ormachea, supra.

Thorne v. Thorne, supra, relied upon by respondent, may be distinguished. In that case this

court pointed out that there was no community property owned by the parties and, likewise,

as there was no issue concerning the rights or needs of the wife for continuing support, the

court under NRS 125.150 was lacking in statutory power to make a division of the husband's

separate property.

Judgment affirmed.


____________

��76 Nev. 325, 325 (1960) Ortiz Co. v. Hotel Flamingo��

BENJAMIN L. ORTIZ CO., a Nevada Corporation, Appellant, v. HOTEL FLAMINGO, Inc.,

a Nevada Corporation, Respondent.

No. 4270

June 20, 1960 353 P.2d 268



Action to recover the reasonable value of surveying services allegedly performed and for

materials furnished in connection therewith, at special instance and request of defendant. The

trial court entered judgment for defendant, and plaintiff appealed. The Supreme Court, Pike,

J., held that substantial evidence supported finding that the chief engineer for a large

resort-type hotel operated by defendant was neither an express agent nor an ostensible agent

for defendant at time he contracted with plaintiff for the surveying services in question.

Judgment affirmed.

John W. Bonner, of Las Vegas, for Appellant.

Morse, Graves & Compton and James H. Phillips, of Las Vegas, for Respondent.

Principal and Agent.

In action to recover the reasonable value of surveying services allegedly performed and for materials

furnished in connection therewith, at special instance and request of defendant, substantial evidence

supported finding that the chief engineer for a large resort-type hotel operated by defendant was neither

an express agent nor an ostensible agent for defendant at time he contracted with plaintiff for the

surveying services in question.

OPINION


Appellant, plaintiff in the trial court, sought judgment against respondent in the sum of

$1,813.23 as the reasonable value of surveying services alleged to have been ��


performed and materials furnished in connection therewith, at the special instance and request

of respondent.

The trial court denied the relief sought by appellant and entered judgment in favor of

respondent. This is an appeal from that judgment and also from the order denying appellant's

motion for new trial.

Appellant had sought to prove that one Garvin, chief engineer for the large, resort-type

hotel operated by respondent, was acting as agent for respondent when he contracted with

appellant to perform the surveying services.

However, the basis of the trial court's decision and judgment on the merits and also for its

denial of the motion for new trial, was that appellant had failed to prove that the surveying

services had been performed at the request of respondent. The court, sitting without a jury, in

finding appellant's proof concerning Garvin's agency to be insufficient, indicated its view of

the evidence as showing that a certain firm of architects, rather than respondent, had engaged

appellant's services. Thereafter, appellant took the deposition of one Honnold, a member of

the architectural firm referred to by the court, and used it in support of the motion for new

trial. Appellant introduced the architect's deposition for the purpose of clarifying the

testimony of one Parvin, president of respondent corporation, which testimony was readily

susceptible to the interpretation that respondent had paid the architects for the surveying

services rendered by appellant. The additional objective sought to be attained through the

architect's testimony was to rebut Garvin's testimony in which he disclaimed having

participated in contracting for appellant's services.

Garvin had testified that he had introduced Ortiz to the two men representing the

architects, “* * * the people who wanted the survey—they were out there, and they would

show him [Ortiz] what they wanted done.” His testimony had denied any recollection of the

particular conversation which had taken place when appellant's bill for services was presented

to Parvin by appellant's representative. Testimony produced on behalf of appellant had been

that, although Parvin had then informed ��0 �� B��0 �� $�� B�� $�� @��$�� &4��'��


appellant's representative in Garvin's presence that respondent had not authorized the services

and would not pay for them, Garvin thereafter requested an itemized bill from appellant and

suggested to Ortiz that the amount of the bill be reduced, stating that the “Flamingo people”

considered it excessive. Appellant also had produced testimony that, on a previous occasion,

Garvin had engaged appellant to do surveying for the hotel and that respondent had paid

appellant $255.49 for the same, about May 29, 1958. This date of payment was only a few

days prior to the discussions had between Garvin and Ortiz and the architects' representatives.

Although Parvin did not deny the May 29, 1958 payment, he stated that any such payment, if

made, would have been made only after certain hotel procedures relating to the authorization

of work had been complied with. No hotel records substantiating this contention were

produced and Ortiz testified he had no knowledge of any such requirements.

Honnold's deposition denied that the architects had contracted for appellant's services. He

also testified as an expert witness concerning customary practice in the locality that the

owner, rather than the architect, paid for “engineering costs” and that the architects had not

received any payment from respondent for services in connection with the proposed

convention hall. In that connection he testified that his firm had not presented any bill to

respondent for such services and, by way of explanation, stated that he considered any

services which had been so rendered a relatively small matter. His testimony was that his

firm, however, had been paid for services in connection with the construction of a new wing

for about 92 rooms added to respondent's hotel after the convention hall project had been

abandoned by respondent.

The written decision of the trial court denying the motion for new trial states that

Honnold's testimony had the effect of reconciling in the mind of the court any apparent

contradiction of testimony relating to payment of architect's fees by respondent. Such

decision pointed out that Honnold's testimony and certain affidavits also used in support of

the motion did not suffice to change �� B��


the previously expressed view of the court that appellant had failed to prove agency on the

part of Garvin.

If it be conceded that there was failure of proof of an express agency existing between

respondent as principal and Garvin as agent, there was before the trial court evidence in

support of an ostensible agency on the part of Garvin. Such evidence showed the performance

of the prior surveying services by appellant at the instance of Garvin, and that the same had

been paid for by respondent. In Harrah v. Home Furniture, 67 Nev. 114, 117, 214 P.2d 1016,

1017, this court said, “ ‘[A] single act of the agent and a recognition of it by the principal may

be so unequivocal and of so positive and comprehensive a character, as to place the authority

of the agent to do similar acts for the principal beyond any question. The value of such proof

does not depend so much on the number of acts as upon their character.'” However, the trial

court, in entering judgment in favor of respondent, apparently considered the previous

occasion of payment insignificant compared to the present situation where the value of the

services was claimed to be $1,813.23, and found that appellant had not made a sufficient

showing of any actual or apparent authority on the part of Garvin to bind respondent to a

contract requiring payment of such a sum. Later, even with the testimony of Honnold before

it, the trial court denied appellant's motion for a new trial. Although, as triers of the facts, by

reason of the evidence relating to ostensible agency on the part of Garvin, we might have

come to a different conclusion, such consideration does not permit us to disturb the judgment

of the court as substantial evidence supports both the findings and such judgment. Mahan v.

Hafen, 76 Nev. 220, 351 P.2d 617. In denying the motion for new trial the court was within

the exercise of its discretion and no abuse of that discretion appears.

Judgment affirmed.


____________

��76 Nev. 329, 329 (1960) United Tungsten v. Corporation Service��

UNITED TUNGSTEN CORPORATION, a Nevada Corporation, and GEORGE G. MOORE,

Appellants, v. CORPORATION SERVICE, Inc., a Nevada Corporation, Respondent.

No. 4274

June 21, 1960 353 P.2d 452


Department No. 2.

Action on contract for employment of plaintiff corporation by individual and corporate

defendant for purpose of sending out certain literature to various stockholders. The trial court

entered judgment for plaintiff corporation and defendant corporation and individual defendant

appealed. The Supreme Court, Badt, J., held that where complaint alleged cause of action in

quantum meruit and during trial counsel for defendants agreed that the only issue in case was

the matter of compensation to be received for services, statement would be treated as having

raised issue as though pleadings were amended to conform to evidence, and evidence

sustained finding as to the reasonable value of plaintiff corporation's services in sending out

letters in question.

Affirmed.

John W. Bonner, of Las Vegas, for Appellants.

Paul L. Larsen, of Las Vegas, for Respondent.

Appeal and Error.

Where action was brought by plaintiff corporation to recover for services performed for defendant

corporation and individual defendant in sending out notices to certain stockholders, and during trial

attorney for defendants agreed that the only issue was the matter of compensation for services for which

plaintiff claimed it was to get $5 each for the letters mailed and defendants claimed plaintiff was to

receive $5 only for each transaction completed, and there was substantial evidence to support court's

formal findings that sum claimed by plaintiff corporation was in accordance with plaintiff's version of

contract, case called for application of rules requiring that when an issue not raised by pleading is raised

by consent of parties it shall be treated as if raised in pleadings, failure to ��


amend pleadings to conform to evidence does not affect result of trial of the issues, and rule prohibiting

disturbance of judgment for sundry errors unless error appeared to be inconsistent with substantial

justice. NRCP 15(b), 52, 61.

OPINION


We have before us for determination the validity of appellants' contention that the

judgment must be reversed because it is based upon an express contract between the parties,

whereas respondent sought judgment upon a quantum meruit. We have decided that the

contention is without merit and that the judgment must be affirmed.

The action is concerned with the employment of Corporation Service, Inc., by United

Tungsten Corporation and George G. Moore for the purpose of sending out certain literature

to the stockholders of Atlas Consolidated Tungsten Mines, Inc., and to stockholders of

Petroleum Investment Trust, Ltd., describing the plans of United Tungsten for the issuance

and sale of Tungsten stock and involving a proposed exchange for Atlas and Petroleum stock.

Blank forms were enclosed for such purpose and sundry instructions given. The nature of the

proposals is unimportant. The necessary forms to be used were to be prepared and printed,

printing and postage to be furnished by Corporation Service, the necessary bank account to be

opened for deposit of moneys received, correspondence to be engaged in, letters of transmittal

to be forwarded, with copies to United Tungsten for its information, and other incidental

service. The arrangement was made between Henry O. Hart, as president of Corporation

Service, and George G. Moore, as president of United Tungsten. These two persons were the

main witnesses for the respective parties at the trial.

The complaint is divided into two counts. In count 1 plaintiff alleges a cause of action in

quantum meruit for the reasonable value of its services, in the sum of $1,995, in sending out

the material described, and further �� 9��(��


alleges that after such services had been performed, United Tungsten had agreed to pay said

sum therefor. In count 2 plaintiff alleges that appellant Moore individually requested plaintiff

to perform such services, that the reasonable value thereof was $1,995, and that Moore, when

requesting such service, personally and individually expressly agreed to pay the reasonable

value of the services and agreed that such reasonable value was $1,995; that after crediting

payment of $815, there was a balance due of $1,180. Defendants answered and

counterclaimed, seeking return of part of the $815 they had paid. From the allegations of such

counterclaim and the allegations and denials of the reply thereto, it became evident that the

real dispute of the parties was whether, under the terms of the oral contract, Corporation

Service was to receive $5 for each of the letters mailed or $5 for each completed transaction.

The trial had not progressed to any great length before, on ruling on an objection as to the

relevancy of certain evidence offered by the plaintiff, the learned trial judge stated: “It seems

to me the only thing before the court is the matter of compensation. I think the services were

rendered and [plaintiff] claims [it] was to get $5.00 [each] for three hundred and ninety- [nine

letters mailed]; [it] was paid so much and they owe a balance, and the [defendants claim

plaintiff was] to receive $5.00 for each one completed. That is the only difference.” Mr.

Bonner (attorney for defendants): “That is the only issue.” Court: “That is the only issue

before the court.”

This court has repeatedly given effect to the provisions of NRCP Rule 15(b) to the effect

that when issues not raised by the pleadings are treated by express or implied consent of the

parties, they shall be treated in all respects as if they had been raised in the pleadings and that,

though the pleadings may be amended to conform to the evidence, failure to amend does not

affect the result of the trial of such issues. Johnson v. Johnson, 76 Nev. 318, 353 P.2d 449.

We have also given effect on many occasions to NRCP Rule 61 (a repetition of earlier

statutes) prohibiting the disturbance of a judgment for ��


sundry errors of the trial court, unless such errors appeared to this court inconsistent with

substantial justice, and that this court must disregard any error or defect in the proceeding

which does not affect the substantial rights of the parties.

The court, in its written decision, held that the sum claimed by the plaintiff was the

reasonable value of its services. See NRCP Rule 52. In its formal findings the court found

that the sum claimed by plaintiff was in accordance with the plaintiff's version of the contract.

The written decision rejected the defendants' version. Both on the issue of the reasonable

value of the services and on the issue of the precise contract entered into, the evidence was in

conflict.

This is a typical case calling for the application of Rules 15(b), 52, and 61, supra. In any

event, as the trial court accepted plaintiff's testimony as to the stipulated price of its services,

this became the quantum meruit. Warren v. Glasgow Exploration Co., 40 Nev. 103, 160 P.

793; Maitia v. Allied L. & L. S. Co., 49 Nev. 451, 248 P. 893.



____________

��76 Nev. 332, 332 (1960) Reno Newspapers v. Bibb��

RENO NEWSPAPERS, INC., a Corporation, and NEVADA INDUSTRIAL COMMISSION,

Appellants, v. FORREST M. BIBB, Guardian ad Litem for JOHN STEPHEN BIBB,

Respondent.

No. 4286

July 1, 1960 353 P.2d 458

Motion to dismiss an appeal from the Second Judicial District Court, Washoe County; Clel

Georgetta, Judge, Department No. 3.

Action for personal injuries. The trial court entered judgment from which defendants

appealed. On motion �� )��C��)��+�� ,�� 0 �� )��


to dismiss appeal, the Supreme Court, McNamee, C. J., held that where defendant appealed

from judgment without designating in his notice of appeal the part thereof from which appeal

was taken, and judgment was in three paragraphs, the first of which merely stated court's

reasons upon which the other two paragraphs were based, the second of which was in favor of

defendant, and the third of which was not against defendant, but was against another

defendant, restrictive nature of notice of appeal left nothing for Supreme Court to consider or

adjudicate.

Appeal dismissed.

Bible, McDonald and Jensen, of Reno, for Appellant Reno Newspapers, Inc.

William J. Crowell, of Carson City, for Appellant Nevada Industrial Commission.

Gordon W. Rice, of Reno, for Respondent.

1. Appeal and Error. Under rule requiring that notice of appeal designate the judgment or part therefrom appealed from, only

those parts of judgment which are included in notice of appeal will be considered by appellate court. NRCP

73(b).

2. Appeal and Error. Where defendant appealed from judgment without designating in his notice of appeal the part thereof

from which appeal was taken, and judgment was in three paragraphs, the first of which merely stated

court's reasons upon which the other two paragraphs were based, the second of which was in favor of

defendant, and the third of which was not against defendant, but was against another defendant, restrictive

nature of notice of appeal left nothing for Supreme Court to consider or adjudicate. NRCP 73(b).

OPINION


In the court below plaintiff (respondent Bibb) sued Reno Newspapers, Inc., Nevada

Industrial Commission, and others on account of injuries received by him when he was

knocked to the ground by an automobile while �� +�� =��


he was delivering newspapers to subscribers of the Nevada State Journal, a newspaper owned

by Reno Newspapers, Inc.

After a pre-trial conference, the court on January 5, (1960) entered a judgment:

1. That as between plaintiff and Reno Newspapers, Inc., the compensation and benefits

provided by the Nevada Industrial Insurance Act are exclusive;

2. That the action be dismissed as to Reno Newspapers, Inc.;

3. That plaintiff be awarded judgment against the Nevada Industrial Commission for the

full amount of compensation and benefits due him under the provisions of the Nevada

Industrial Insurance Act. [NRS 616.010 et seq.]

After rendition of judgment plaintiff's attorney served on defendants a notice of entry of

judgment which stated that “On January 5, 1960, the court duly entered a judgment

dismissing said action as to Reno Newspapers, Inc., and entered its judgment against Nevada

Industrial Commission and in favor of plaintiff.”

Reno Newspapers, Inc., has appealed “from that certain final judgment made and entered

on the 5th day of January 1960 in favor of the plaintiff and against this defendant.” The notice

of appeal is silent with respect to said judgment of dismissal. A separate and independent

appeal has been taken by Nevada Industrial Commission.

The matter now before this court for determination is a motion by respondent to dismiss

the appeal of Reno Newspapers, Inc.

Obviously Reno Newspapers, Inc. has not appealed from paragraph 2 of said judgment

because paragraph 2 is an adjudication in its favor and against plaintiff, or from paragraph 3

which is a judgment not against Reno Newspapers, Inc. but against the Nevada Industrial

Commission. Paragraph 1 is not a judgment in favor of plaintiff and against Reno

Newspapers, Inc. but is merely the court's reason upon which those parts of the judgment in

paragraphs 2 and 3 are based.


[Headnotes 1, 2]

Rule 73 (b) NRCP provides that the notice of appeal shall designate the judgment or part

thereof appealed from. Only those parts of the judgment which are included in the notice of

appeal will be considered by the appellate court. Scheeline Banking & Trust Co. v.

Stockgrowers' & Ranchers' Bank of Reno, 54 Nev. 346, 16 P.2d 368; Glassco v. El Sereno

Country Club, Inc., 217 Cal. 90, 17 P.2d 703; Walta v. Bayer Construction Co., 185 Kan.

408, 345 P.2d 631; Borgen v. Wiglesworth, 185 Kan. 108, 340 P.2d 365; Walton v. Blauert,

256 Wis. 125, 40 N.W.2d 545.

The restrictive nature of the notice of appeal leaves nothing for this court to consider or

adjudicate.

It is ordered that the appeal of Reno Newspapers, Inc. be dismissed.


____________

��76 Nev. 335, 335 (1960) Barnato v. District Court��

BARBARA B. BARNATO, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT of

the State of Nevada, in and for the COUNTY OF WASHOE, and HONORABLE CLEL

GEORGETTA, Judge Thereof, Respondents.

No. 4313

July 7, 1960 353 P.2d 1103

Prohibition proceeding to prevent District Court from proceeding in husband's divorce

action on ground that court had no jurisdiction over wife. The Supreme Court, McNamee, C.

J., held that under rule permitting certain defenses, including (2) lack of jurisdiction over

person, (3) insufficiency of process, and (4) insufficiency of service of process, to be asserted

by motion and providing that defenses 2-4 are waived if joined with one or more defenses

other than defenses 2-4, �� 0 �� ,�� ,�� &��'��,��


motion by wife to dismiss husband's divorce action because of lack of jurisdiction over her

person, lack of sufficiency of process, and insufficiency of service of process, and to quash

service made on her in Nevada, constituted “general appearance” invoking general

jurisdiction of the court.

Original proceedings in prohibition. Alternate writ vacated and proceedings

dismissed.

(Petition for rehearing denied September 7, 1960.)

Adams, Reed and Bowen, of Reno, for Petitioner.

Springmeyer, Thompson and Dixon, of Reno, for Respondents.

1. Divorce. In determining whether wife's motion to dismiss complaint in husband's divorce action constituted

general appearance and had effect of bringing her within jurisdiction of court, Supreme Court was not

bound by advisory committee's intention not to adopt federal rule permitting motions to dismiss in cases of

defective service. NRCP 12(b).

2. Divorce. Under rule permitting certain defenses, including (2) lack of jurisdiction over person, (3) insufficiency of

process, and (4) insufficiency of service of process, to be asserted by motion and providing that defenses

2-4 are waived if joined with one or more defenses other than defenses 2-4, motion by wife to dismiss

husband's divorce action because of lack of jurisdiction over her person, lack of sufficiency of process, and

insufficiency of service of process, and to quash service made on her in Nevada, constituted “general

appearance” invoking general jurisdiction of the court. NRCP 12(b).

OPINION


Petitioner seeks a writ of prohibition to prevent respondent court from proceeding in a

divorce action on the ground that it has no jurisdiction over petitioner.

Michael J. Barnato commenced an action for divorce against petitioner in the respondent

court. Petitioner, the defendant in the action, made the following motions in said court: 1��


1. To dismiss the action because of lack of jurisdiction over the person of defendant.

2. To dismiss the action because of lack of sufficiency of process.

3. To dismiss the action because of insufficiency of service of process.

4. To quash the service made on her at Las Vegas, Nevada.

Respondent court granted the motion to quash on the ground that plaintiff Barnato had

fraudulently enticed defendant into the State of Nevada. At the same time it denied the

motions to dismiss the action, and held that the defendant by moving to dismiss the entire

action had made a general appearance and had placed herself within the general jurisdiction

of the court for further proceedings.

The sole question to decide is whether the motions to dismiss the action constituted a

general appearance and had the effect of bringing defendant within the jurisdiction of the

court.

Prior to the adoption of the Federal Rules of Civil Procedure in this state, a motion to

quash service of summons was the proper method of attacking an improper service and did

not constitute a general appearance. Brockbank v. Second Judicial District Court, 65 Nev.

781, 201 P.2d 299. However the rule in most jurisdictions has been that a motion to dismiss

an action even when based on a ground which would warrant the granting of a motion to

quash service of summons constituted a general appearance regardless of the fact that it was

designated a special appearance. Clawson v. Boston Acme Mines Development Co., 72 Utah

137, 269 Pac. 147, 59 A.L.R. 1318; Ricks v. Wade, 97 Utah 402, 93 P.2d 479; Application of

Goodrich, 51 Wyo. 463, 68 P.2d 597; Dallas v. Luster, 27 N.D. 450, 147 N.W. 95. Petitioner

claims that Rule 12(b) NRCP has changed the law in this respect and that now the objection

to an improper service of summons may be made by a motion to dismiss the action or by a

motion to quash the service. This rule reads in part as follows: &:�;�6��8� ��


“(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading,

whether a claim, counterclaim, crossclaim, or third party claim, shall be asserted in the

responsive pleading thereto if one is required, except that the following defenses may at the

option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter

appearing on the face of the pleading, (2) lack of jurisdiction over the person, (3)

insufficiency of process, (4) insufficiency of service of process, (5) failure to state a claim

upon which relief can be granted, (6) failure to join an indispensable party. A motion making

any of these defenses shall be made before pleading if a further pleading is permitted. No

defense or objection is waived by being joined with one or more other defenses or objections

in a responsive pleading or motion, except defenses numbered (2)-(4) are waived if joined

with one or more defenses other than defenses (2)-(4), or by further pleading after denial of

such defenses. If a pleading sets forth a claim for relief to which the adverse party is not

required to serve a responsive pleading, he may assert at the trial any defense in law or fact to

that claim for relief.”

In the federal courts a motion to dismiss the action under Rule 12(b) based on improper

service of process does not constitute a general appearance. In fact Form 19, Federal Rules of

Civil Procedure, 28 U.S.C.A., expressly prescribes this method of procedure in case of

defective service of process. 1

Arizona is in accord with the federal decisions in this respect. In Onan v. Superior Court,

65 Ariz. 255, 179 P.2d 243, the Arizona Supreme Court held that Rule 12(b) constituted a

departure from the practice in effect in Arizona prior to its adoption of the federal rules. It is

to be noted, however, that Rule 84 of the Federal Rules of Civil Procedure was omitted from

the Arizona Rules of Civil Procedure. The reviser's note with respect �� !��

____________________

1

Rule 84 F.R.C.P., 28 U.S.C.A., provides as follows: “The forms contained in the Appendix of Forms are

sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules

contemplate.”


thereto states that Rule 84 is omitted because federal forms of pleading are available to

lawyers who desire to follow them. This in effect is an implied approval of the federal forms.

The Nevada Rules of Civil Procedure contain Rule 84 but some of the forms contained in

its Appendix of Forms differ materially from those in the federal Appendix of Forms. In

particular, Form 19 of the Nevada Appendix of Forms deletes entirely the form for a motion

to dismiss an action for improper service of process. In this connection the Advisory

Committee Notes relating to Rule 12(b) which follow the Rules and Forms, state: “The

federal rule is further revised to provide that the defenses of lack of jurisdiction over the

person, of insufficiency of process, and of insufficiency of service of process, are waived if

joined with one or more defenses other than those defenses, or by further pleading after denial

of such defenses. This, in substance, is intended to retain existing practice on motions to

quash * * *. Cf. Sec. 8573, N.C.L. 1929.” 2

[Headnote 1]

It appears to us that the Advisory Committee intended to retain the practice of employing

motions to quash service of process and not to adopt the federal rule permitting motions to

dismiss in cases of defective service. While we are not bound by the Committee's intentions,

we do feel that the situation existing in this state requires an interpretation of Rule 12(b)

consistent with the Advisory Committee's intentions.

[Headnote 2]

The district courts of this state frequently exercise jurisdiction over cases in rem and quasi

in rem as differentiated from the common practice of the federal courts. In such cases to

permit a defendant to invoke the power �� ,�� ,��

____________________

2

NCL 8573 provides “that after the filing of the complaint a defendant in the action may appear by answer,

demurrer, or notice of motion filed in the cause, excepting motions to quash service, or denying the sufficiency

of process or the jurisdiction of the court over the subject-matter or the person, whether the summons has been

issued or not, and such appearance shall be deemed a waiver of summons.”


of the court to dismiss the entire action on account of a defect in the process or the service

thereof would produce harsh and undesirable results such as liability on attachment and

garnishment undertakings, complications in lien foreclosure cases, and would cause

unnecessary refiling of complaints requiring payment of additional fees or preclude refilings

where the statute of limitations could be invoked.

We therefore conclude that Rule 12(b) as adopted in this state has not changed the general

rule in existence at the time of its adoption which is to the effect that a defendant who

requests relief additional to that necessary to protect him from defective service of process

renders his appearance general.

It is apparent not only from the wording of her motions in the divorce action but also from

the grounds upon which they were based that petitioner was seeking relief other than the

quashing of the service of the summons, to wit, dismissal of the action. Her affidavit attached

to her written motion and made a part thereof challenged the jurisdiction of the court over the

subject matter of the action by stating that plaintiff's Nevada residence, upon which

jurisdiction for the divorce action was based, was simulated, and that for approximately

twenty years “plaintiff has been and now is” a resident of California; that he has substantial

assets in California and none in Nevada; and that an action for divorce is pending between the

parties in California.

In our opinion petitioner invoked the general jurisdiction of the court in the divorce action

and therefore the present proceedings in prohibition must be dismissed.

The alternative writ of prohibition is vacated and the proceedings dismissed.


____________

��76 Nev. 341, 341 (1960) Delaney v. Shellabarger��

ALVIN DELANEY and LUCILLE DELANEY, Appellants, v. DORIS T.

SHELLABARGER, Respondent.

No. 4219

July 8, 1960 353 P.2d 903

Appeal from judgment of the First Judicial District Court, Douglas County; Frank B.

Gregory, Judge, Department No. 1.

Action for injunctive relief and damages allegedly suffered when a water pipeline leading

to plaintiff's land was cut. From a judgment of the trial court granting damages and injunctive

relief, defendants appealed. The Supreme Court, Pike, J., held that where vendor, under

whom plaintiff claimed easement to maintain water pipeline, had agreed to convey to

purchaser any 520-acre tract which purchaser might choose out of a total of 3,518.91 acres

which vendor owned, and where contract of sale was recorded, the contract was valid and

enforcible and the recordation placed anyone succeeding to vendor's rights, including

plaintiff, on notice that purchaser or anyone succeeding to purchaser's interest was entitled to

receive a conveyance to 520 acres of the type specified in the contract notwithstanding any

subsequent conveyance of vendor.

Reversed and remanded.

Ralph M. Tucker, of Reno, for Appellants.

Paul D. Laxalt, of Carson City, for Respondent.

1. Vendor and Purchaser. A contract for the sale and purchase of a part of a larger parcel of land, which gives the purchaser the

right to select the particular part, does not for that reason alone render the contract unenforcible.

2. Vendor and Purchaser. Where vendor agreed to convey to purchaser any 520-acre tract which purchaser might choose out of a

total of 3,518.91 acres which vendor owned, and where contract of sale was recorded, the contract was

valid and enforcible and the recordation placed anyone succeeding to vendor's rights on notice that

purchaser or anyone succeeding to purchaser's interest was ��#�%��


entitled to receive a conveyance to 520 acres of the type specified in the contract notwithstanding any

subsequent conveyances of vendor. NRS 111.320.

OPINION


This is an appeal from a judgment of the trial court granting to respondent permanent

injunctive relief, $85 special damages, and $5,000 punitive damages.

The singular surname is used throughout this opinion to represent both husband and wife.

Respondent's complaint alleged the granting on August 22, 1955 to respondent and her

deceased husband of a right-of-way passing through a portion of the NW 1/4, of the NW 1/4,

Sec. 25, T. 13 N., Range 18 E., M.D.B. & M.; the construction by respondent of a pipeline

over the same to respondent's land adjacent thereto; that during the period January 1 through

June 15, 1958 defendants had deliberately and maliciously cut and otherwise damaged said

pipeline, thereby stopping the flow of water to plaintiffs' dwelling house and land.

Appellants' answer, after denying the allegations of respondent's complaint, by way of

counterclaim, sought damages alleged to have been caused to defendants by reason of a

restraining order which had been issued by the trial court upon the application of respondent.

The trial court recognized the validity of the grant of right-of-way dated August 22, 1955,

and refused to recognize the validity of a certain contract and option dated March 1, 1954 by

reason of its being “* * * so indefinite in its terms as to be unenforcible in its executory parts”

because of a right of selection given the purchaser as hereinafter detailed.

Appellants in support of their claim that their land was not servient to the right-of-way had

relied upon the recordation on August 2, 1954 of such contract as having given constructive

notice of certain rights on the part of one Palady so as to defeat the validity of the grant of the

right-of-way subsequently made to respondent. Under �� K� �

�� 8��8��K� ��#�%�� "�#1 �21�� #�%�� 8��


the terms of such contract one West had agreed to sell to Palady and Palady had agreed to buy

from West 520 acres out of a tract of 3,518.91 acres and to pay for the same within a period

of five years, with the right of selection of the particular 520 acres given to Palady.

On August 25, 1954 West deeded to Palady a tract containing 40 acres. The particular land

covered by such conveyance is not involved in the present controversy, and the conveyance

appears to have significance only as having apparently been made pursuant to the contract

above referred to.

Placerville Lumber Company, a partnership, by deed from West dated March 30, 1955,

had received title to all of the lands designated in the West-Palady contract, with the

exception of the 40-acre tract previously conveyed by West to Palady. The grant of easement

made by the partnership to respondent on August 22, 1955 was recorded on August 25, 1955.

The record shows appellants to be the purchasers of a ten-acre tract under a contract of sale

with Lindberg Investment company as seller. Although such contract, and certain of the other

mesne conveyances under the title derived by Palady from West, contain reservations of

rights-of-way, the language of such reservations shows each of them to have been personal to

the particular grantor and his successors, and that the descriptions contained no exception of

the right-of-way claimed by respondent.

Appellants urge that the trial court erred in finding the West-Palady agreement of March 1,

1954 to be unenforcible.

Appellants contend that the easement would materially affect the right of Delaney to a

conveyance of title free from restrictions on the use of the land, and that both Placerville

Lumber Company as grantor of the easement and Shellabarger as grantee were chargeable

with knowledge that Palady, and his successors in interest, should he select this particular

tract, were entitled to receive it free from any such restriction. The point is well taken.


[Headnotes 1, 2]

The authorities are to the effect that a contract for the sale and purchase of a part of a

larger parcel of land, which gives the purchaser the right to select the particular part, does not

for this reason alone render the contract unenforcible. DeRemer v. Anderson, 41 Nev. 287,

169 P. 737, 25 A.L.R. 775; Calder v. Third Judicial District Court, 2 Utah 2d 309, 273 P.2d

168, 46 A.L.R. 2d 887; Kelley v. Russell, 50 Cal.App.2d 520, 123 P.2d 606; Fleishman v.

Woods, 135 Cal. 256, 67 P. 276; Brown v. Munger, 42 Minn. 482, 44 N.W. 519; Dozier v.

Troy Drive-In Theatres, 265 Ala. 93, 89 So.2d 537; Peckham v. Lane, 81 Kan. 489, 106 P.

464, 25 L.R.A., N.S., 967; 49 Am.Jur. 660, Statute of Frauds § 350. Because we construe the

contract to be valid and enforcible, when recorded it gave notice of its provisions to

respondent at the time respondent received her grant of easement. NRS 111.320. In effect it

gave notice that should Palady or anyone succeeding to his rights under his said contract with

West, select and pay for the particular areas, selected and paid for in accordance with the

contract, such person would then be entitled to receive a conveyance of the character

specified in the contract.

The trial court, having construed the West-Palady contract as void, found it unnecessary to

consider any of the conveyances from Palady made subsequent thereto, and found in effect

that West's deed to Placerville Lumber Company gave the latter and its successors in interest,

including respondent, rights paramount to Palady and his successors in interest. Accordingly,

this case is remanded to the trial court with instructions to grant a new trial to determine the

rights of the parties in view of our holding herein that the West-Palady contract is valid and

enforcible. Reversed and remanded. No costs allowed.


____________

��76 Nev. 345, 345 (1960) Commercial Credit Corp. v. Smith��

COMMERCIAL CREDIT CORPORATION, a Maryland Corporation, Appellant, v. CLARK

SMITH, dba PHOENIX AUTO AUCTION, and TED CLAREMONT, Respondents.

No. 4276

July 8, 1960 353 P.2d 905


Department No. 2.

Action by credit corporation against automobile owner, who had recovered possession of

automobile after having delivered possession of it to used car dealer, who sold automobile

and assigned contract for unpaid balance to credit corporation, for the return of the

automobile or its value. The trial court rendered judgment for automobile owner, and credit

corporation appealed. The Supreme Court, Badt, J., held that where owner never was paid for

automobile, and never delivered title certificate to dealer, and where neither purchaser of

automobile nor credit corporation inquired about any indicia of title other than possession,

mere delivery of the possession did not so clothe dealer with indicia of title as to estop owner

from asserting his title as against credit corporation.

Affirmed.

Calvin C. Magleby, of Las Vegas, for Appellant.

James L. Wadsworth, of Las Vegas, for Respondents.

1. Estoppel. Where automobile owner, who had delivered possession of automobile to used car dealer, never was paid

for automobile, and never delivered title certificate thereto to used car dealer, and neither purchaser of

automobile from used car dealer nor credit corporation inquired about any indicia of title other than

possession, mere delivery of possession of automobile did not so clothe dealer with indicia of title as to

estop owner from asserting his title as against credit corporation which advanced money upon assignment

to it by dealer of contract for sale by such dealer to third-party purchaser. NRS 96.320, 482.400,

482.405.

2. Automobiles. Where automobile owner never was paid for automobile and never delivered title certificate to used car

dealer, and � �� ,�� ,�


used car dealer sold automobile, and assigned contract for unpaid balance to credit corporation, and where

neither purchaser of automobile nor credit corporation inquired about any indicia of title other than

possession, credit corporation was not in possession of an innocent purchaser, and took contract from

dealer at its own risk. NRS 96.320, 482.400. 482.405.

OPINION


The question presented is whether the owner of an automobile who sells a car to a

used-car-lot dealer, with title certificate attached to a 20-day draft on the purchaser sent to a

bank with instructions to deliver the certificate on payment of the draft, permitting the

purchaser in the meantime to hold the car on his sales lot for sale, has so clothed the

purchaser with indicia of title as to estop the owner from asserting his title as against a credit

company that advances money upon an assignment to it by the used-car-lot dealer of a

contract of sale from such dealer to a third party purchaser. Neither the credit company,

plaintiff below and appellant herein, who asserts the estoppel as against the true owner, in

buying the paper, nor the purchaser, in buying the car from the used-car-lot dealer, inquired

about a registration certificate or title certificate or assignment or transfer thereof or

registration of the car, or any other indicium of title other than possession.

As stated the question seems confusing. It will be simplified by a statement of the facts.

Smith, a wholesale and retail dealer in used cars in Phoenix, Arizona, was the owner of the

car in question. He sold to Claremont, a used-car dealer in Las Vegas. He delivered

possession of the car but retained the title certificate. He drew a 20-day draft on Claremont,

attached the certificate of title to the draft, and sent it to a Las Vegas bank, with instruction

for the delivery of the certificate on payment of the draft within 20 banking days—otherwise

to return the certificate. Claremont sold the car to one Fields for a down payment of $432 and

a contract to pay the balance. Claremont then assigned the 4�� )��)��)��. 2�2%�


Fields contract to Commercial Credit Corporation, receiving from that company $889.90. In

Claremont's assignment to Commercial Credit of the Claremont-Fields contract, Claremont

assigned all his right, title, and interest in the car, warranted that he had complied with all

laws with respect to the sale, that he was transferring clear title, subject only to the contract,

that the lien of his balance due from Fields appeared on the certificate of title, as required by

law, as a first lien, and that all of Claremont's obligations in the contract had been fully

performed, and that he made such warranties for the purpose of inducing Commercial Credit

to purchase the contract. These warranties were all false. Neither Fields, in buying the car

from Claremont, nor Commercial Credit Corporation, in buying from Claremont its contract

of sale to Fields, made any inquiry as to registration of the vehicle or possession of the

certificate of title or any assignment thereto by the original owner to Claremont. Claremont,

of course, could not have assigned or delivered or even exhibited a certificate of title or a

certificate of ownership, as he had not obtained the same by payment of the draft.

Claremont, after obtaining the $432 from Fields and the $889.90 from Commercial Credit

Corporation, absconded. Smith came to Las Vegas, made contact with Fields, exhibited to

Fields Smith's ownership certificate, and Fields voluntarily returned the car to Smith.

Commercial Credit sued Smith for the return of the car or its value.

[Headnotes 1, 2]

The district court rendered judgment for the defendant, Smith, holding that he was not

estopped, “it being concluded that something more than mere possession and control is

necessary, and possession must be accompanied by indicia of title to protect a person who has

dealt with one in possession; that [Commercial Credit] is not in the position of an innocent

purchaser and under the facts of this case took the mortgage from [Claremont] at its own

risk.” He held further, “that the fact that neither Claremont nor Fields was in possession of�� F)��)��G�� '


any indicia of ownership created a defect in the title which was sufficient to put [Commercial

Credit] upon inquiry to ascertain the true facts.” We are in accord with this holding.

Appellant relies on Heaston v. Martinez, 3 Utah 2d 259, 282 P.2d 833, 835, which

involved a similar transaction—a sale to a dealer with draft attached to certificate of title, and

sale by the dealer to a third party, except that assignment by the third party to a credit

company was not involved. The Utah court enunciated the general principle that a person

cannot transfer a better title to personal property than he has, but applied the exception,

“unless the owner of the goods is by his conduct precluded from denying the seller's authority

to sell.” The quotation is from Utah's Uniform Sales Act, U.C.A. 1953, 60-2-7, and the same

provision appears in Nevada's Uniform Sales Act, NRS 96.320. It further applied the rule that

where one of two innocent parties must suffer through the act of a third person, the loss

should fall on the one who by his conduct created the circumstances which enabled the third

party to perpetrate the wrong or cause the loss, citing Al's Auto Sales v. Moskowitz, 203 Okl.

611, 224 P.2d 588; L. B. Motors, Inc. v. Prichard, 303 Ill.App. 318, 25 N.E.2d 129; and

Garrett v. Hunter (Miss.), 48 So.2d 871.

In direct opposition to the Heaston case, and in accord with the theory of the two

dissenting opinions in that case, 1 is the case of Moberg v. Commercial Credit Corporation,

230 Minn. 469, 42 N.W.2d 54, 55. The syllabus by the court in that case reads as follows: “In

order that the real owner of personal property may be estopped from asserting his title against

a person who has dealt with one in possession in faith of his apparent ownership, it is the

general rule that something more than ��

____________________

1

The opinion was written for the majority of the court by Cowley, District Judge. Justice Crockett was

disqualified, and Justice Henriod and Chief Justice McDonough dissented. The dissenting judges held that where

the true owner retained title and all evidence of ownership save bare possession and refused to make the

purchaser a transferee or an owner, the bare transfer of possession without other indicia of ownership, was

insufficient to constitute an estoppel.


mere possession and control is necessary. The authorities indicate that possession must be

accompanied by indicia of title.” To like effect are Deahl v. Thomas (Tex. Civ. App.), 224

S.W.2d 293, and Bustin v. Craven, 57 N.M. 724, 263 P.2d 392.

It should be remembered that this suit was not commenced by the so-called innocent

purchaser but by the Commercial Credit Corporation to whom Claremont had assigned the

Fields contract. It is quite patent that Commercial Credit, instead of looking for indicia of

ownership, looked to the written warranties of Claremont. As it turned out, these guaranties

were worthless. We cannot accept the contention of appellant that Smith was the one

responsible for Commercial Credit Corporation's loss. In point is the last paragraph of the

opinion in Moberg v. Commercial Credit Corporation, supra: “It is our opinion that defendant

here was not in the position of an innocent purchaser, but was an experienced loan agency

engaged in the business of financing new and used automobiles. If it chose to attempt to take

a mortgage from the dealer under the facts and circumstances of this case, it did so at its own

risk.” The foregoing is the more in point by reason of appellant's insistence that the

assignment to Commercial Credit of the Claremont-Fields contract “was a security

transaction.” If so, then the appellant's contention that plaintiff is estopped is all the less valid.

See Tropical State Bank v. Sunshine Motor Co., 137 Fla. 703, 188 So. 595; Pacific Finance

Corporation v. Hendley, 119 Cal.App. 697, 7 P.2d 391; National Guarantee & Finance Co. v.

Pfaff Motor Car Co., 124 Ohio St. 34, 176 N.E. 678.

So far as the provisions of our statutes bear upon the plea of estoppel, we need only refer

to those parts of NRS 482.400 and 482.405 which were in effect at the time of the

transactions in question. The provisions of subsections 1 and 2 of NRS 482.400 are in

substance the same as subsections (a) and (b), and the provisions of NRS 482.405 are the

same as subsection (c) of Stats. 1931, 322, Ch. 202 § 15, 1931 NCL § 4435.14, “An Act * * *

to provide for the transfer of interest in and to �� A�A�A�'


motor vehicles * * *.” These require that “every transferee shall, upon transferring his interest

or title to another, * * * indorse the certificate of ownership as herein provided and deliver

the certificate of ownership to the new legal owner and the certificate of registration to the

new owner.” Commercial Credit Corporation was charged with knowledge of this

requirement. Nor can appellant derive any comfort from Nevada's Uniform Sales Act. NRS

96.320, under subtitle “Transfer of Title. Sale by a Person Not the Owner,” reads in part as

follows: “1. Subject to the provisions of this chapter, where goods are sold by a person who is

not the owner thereof, and who does not sell them under the authority or with the consent of

the owner, the buyer acquires no better title to the goods than the seller had, unless the owner

of the goods is by his conduct precluded from denying the seller's authority to sell. 2. Nothing

in this chapter, however, shall affect: (a) The provisions of any factor's acts, recording acts, or

any enactment enabling the apparent owner of goods to dispose of them as if he were the true

owner thereof.” Unless Smith provided appellant, through Claremont and Fields, with a duly

executed assignment or transfer of Smith's certificate of title, the estoppel recited in the

foregoing would not be effective.

If, on the other hand, as held in some of the authorities, the laws of the state where the

transaction took place will govern, we find similar provisions in 9 Arizona Revised Statutes,

Annotated, 311, Motor Vehicle Registration, Transfer of Title, § 28-314. The vehicle in

question bore Arizona license plates. Under Arizona, as well as Nevada law, Commercial

Credit was charged with knowledge of the statutory requirement. See Bustin v. Craven, 57

N.M. 724, 263 P.2d 392.

The holding of the court below to the effect that respondent herein, the legal owner of the

car in question, was not estopped from asserting his title, was correct.



____________

��76 Nev. 351, 351 (1960) Bekins Van & Storage Co. v. Anderton��

BEKINS VAN & STORAGE CO., a Corporation, Appellant v. FANNY MILLER

ANDERTON and DEIRDRE COAKLEY, Respondents.

No. 4258

July 15, 1960 354 P.2d 188



Action by shippers against common carrier for value of goods destroyed by fire in carrier's

agent's warehouse at destination. From judgment of the trial court for shippers, carrier

appealed. The Supreme Court, Badt, J., held that under Western States Movers' Conference

Tariff defining storage-in-transit as the holding of shipment in warehouse pending further

transportation, where goods were shipped by each of two shippers to himself in another state

and were to be stored in carrier's agent's warehouse, until shipper should call for them, and no

further transportation by the carrier was contemplated, the storage was not storage-in-transit,

goods were no longer in interstate commerce, transportation contract provision limiting

liability for loss was not applicable, and carrier was liable for full value of goods destroyed by

its agent's negligence.

Affirmed.

Jones, Wiener and Jones, of Las Vegas, for Appellant.

Foley Bros., of Las Vegas, for Respondents.

1. Carriers. Under Western States Movers' Conference Tariff defining storage-in-transit as the holding of shipment in

warehouse pending further transportation, where goods were shipped by each of two shippers to himself in

another state and were to be stored in carrier's agent's warehouse, until shipper should call for them, and no

further transportation by the carrier was contemplated, the storage was not storage-in-transit, goods were

no longer in interstate commerce, transportation contract provision limiting liability for loss was not

applicable, and carrier was liable for full value of goods destroyed by its agent's negligence. Interstate

Commerce Act, § 1 et seq., 49 U.S.C.A. § 1 et seq.; NRS 95.010 et seq., 95.070.


2. Principal and Agent. In action by shipper against common carrier for value of goods destroyed by fire in carrier's agent's

warehouse at destination, evidence sustained finding that warehouseman was agent of carrier.

OPINION


Respondents entered into a written contract with appellant, by way of a certain “combined,

uniform household goods bill of lading and expense bill” and a certain “confirmation of

order, agreement for services, and rate quotation” for the transportation of certain household

goods from Los Angeles, California, to Las Vegas, Nevada. After arrival in Las Vegas and

before the goods were removed from the warehouse the goods were destroyed by fire.

Respondents sued for the value of the goods less the amounts that were paid them by

appellant. Anderton recovered judgment for $12,913.44 and Coakley for $592.79, both

amounts bearing interest.

The only question presented on appeal is the legal construction of the instruments referred

to, particularly the confirmation of the order, agreement for services, and rate quotation, in

connection with provisions of the federal interstate commerce act, 49 U.S.C.A., sec. 1 et seq.,

and regulations made by the Interstate Commerce Commission thereunder—all in the light of

the facts and circumstances connected with the transportation and storage of the goods and

their destruction by fire while in the warehouse.

The contract of the parties provided in effect that, in consideration of a minimum charge

for transportation and insurance premium, the agreed value of the goods was fixed at 30 cents

per pound on a stated weight of 5,200 pounds. Liability for loss was limited to this value.

Respondents contended successfully in the lower court that this limitation was effective

only during the period the goods were being transported, that when they reached their

destination the provision in the agreement �� 9�� K�� >��2#�%1%��


relating to transportation terminated, and that thereupon the state law rather than the federal

interstate commerce act and the regulatory rules, regulations, and provisions thereunder,

became applicable. Under the provisions of the Warehouse Receipts Law, NRS 95.010 et

seq., a warehouseman is required to deliver goods upon proper demand therefor or, upon

failure to do so, becomes liable for the value thereof upon an implied contract for the ordinary

storage of goods for hire.

It is appellant's contention that, under the contract, the goods were considered in transit for

a 60-day period following delivery to the warehouse and that during such period the interstate

character of the shipment continued; that, as the goods were destroyed 40 days after delivery

to the warehouse, they were still legally in transit and thus subject to the contract limitation of

liability. Such amount had already been paid respondents by appellant.

The trial court found that, after delivery of the household goods to Atlas Storage &

Transfer, Inc., in Las Vegas, they were no longer in transit, that the limitation of liability

clause which pertained to the shipping portion of the contract did not pertain to the storage,

and that appellant's liability for the full value of the goods resulted from the conduct of its

agent, Atlas Storage & Transfer, Inc.

We turn, first, to some of the salient facts which furnish the backdrop for the picture and

action that developed. The respondents, then residing in Los Angeles, had secured

employment in Las Vegas and respondent Anderton purchased a duplex there. As they

expected to start their employment in Las Vegas in February 1954, respondent Anderton

called appellant to arrange for the storage of the goods of respondents until the duplex was

ready for occupancy. The circumstances were detailed to appellant's agent in Los Angeles and

their desire that the goods be stored until called for upon completion of the duplex which was

anticipated to be some 60 to 120 days thereafter. Some discussion was had as to whether it

would be preferable to store the goods in Los Angeles ��>� �E�� >� E�� (�� 5�� N�(�� =��>� �E�� +��2��12#!��5�� 5�� N�(�� =��4�� 12#!�� ."/1�3!�� .�3��"%<��


or in Las Vegas, and storage at Las Vegas was selected. The goods arrived at Atlas Storage &

Transfer, Inc., in Las Vegas January 29, 1954, and Anderton was notified that the goods were

there. She went to the office of Atlas Storage & Transfer, Inc., on February 8, 1954, where

she paid the transportation bill of $371.64 and also the sum of $26 for approximately 30-days

advance storage. On March 10, 1954 the warehouse, including the stored goods, was

destroyed by fire. On pre-trial hearing it was stipulated that the fire resulted from the

negligence of Atlas Storage & Transfer, Inc.

As noted, the trial court found that Atlas Storage & Transfer, Inc., was the agent for

storage of the goods for appellant.

Appellant, in its opening brief, recites that three legal issues are presented on the appeal.

They may be condensed into the single issue as to whether the goods were, at the time, under

contract and Interstate Commerce Commission regulations, under the status of

“storage-in-transit” and subject to the limitation of the carrier's liability based upon the

declared value of the goods shipped. Appellant assigns two specifications of error: (1) the

court's finding that the liability for the loss was to be determined by the mandatory provisions

of the Warehouse Receipts Law, NRS 95.070, and (2) in concluding that appellant was liable

to respondents for the full value of the goods lost. No error is assigned in the court's finding

that Atlas was the agent of Bekins. The appeal was briefed and argued to this court solely

upon the issues so declared and the errors thus assigned.

[Headnote 1]

The bill of lading shows the receipt of the goods by appellant from Anderton consigned to

Anderton “c/o Atlas Tsfr. for S.I.T. [storage-in-transit], Las Vegas, Nevada.” Following

recital of such destination the form provides, “If to storage: [ ] regular, [ ] in transit.” A check

mark indicates “in transit.” In the fine print provisions on the back of the bill of lading is

found the following provision: “* * * after placement of the property for delivery at

destination * * * the property A�A�A��,�� 0 ��

�� A�A�A� ��A�A�A��


* * * may be kept in vehicle, warehouse or place of business of the carrier, subject to the

tariff charge for storage and to carrier's responsibility as warehouseman only or in the option

of the carrier, may be removed to and stored in a warehouse * * * subject to * * * a

reasonable charge for storage. * * * The consignor shall be liable for the advances, tariff

charges, packing, storage, and all other lawful charges.”

The confirmation of order, agreement for services, and rate quotation likewise shows

consignment from Anderton to “same c/o Atlas Transfer & Stg.” Under “provision for

storage” there is again checked “in transit.” Limitation of the carrier's liability is clearly

stated. The following appears in the fine print appearing on the back of the agreement,

“Liability (A) General. All references in this agreement to ‘company' apply to the company,

carrier, or warehouseman in possession of all or any of the property herein described.”

The parties agree that conditions of the transportation are governed by the provisions of

the Western States Movers' Conference Tariff No. 1-A. The following provisions are there

found: “(A) Storage in transit of shipments covered by this tariff is the holding of the

shipment in the warehouse of the carrier or its agent, for storage, pending further

transportation, and will be effected only at specific request of the shipper. For the purpose of

this rule, a carrier may designate any warehouse to serve as its agent. (c) Shipments moving

under this rule may be stored only once and for a period not to exceed sixty (60) days from

date of unloading into the warehouse. When not removed at the expiration of the time limit

specified herein, the interstate character of the shipment will cease, the warehouse shall be

considered the destination of the shipment, the warehouseman shall be agent for the shipper

and the property shall then be subject to the rules, regulations and charges of the

warehouseman. When a shipment remains in storage after the expiration of sixty (60) days,

all accumulated carrier charges must be paid, as follows: 1—Transportation charges for

pick-up or delivery as ��8��:�;-��O�� :3%;��


provided in Paragraph (d); 2—Storage charges for sixty (60) days as provided by this tariff.

(See Item 730); 3—Additional services, advances or other lawful charges, (if any).”

Both parties agree that the contract between the parties contemplated two

services—transportation and storage. Appellant insists, however, that the storage involved

was storage-in-transit, contrary to the court's finding and conclusion that the interstate

transportation had terminated with the arrival of the goods at destination. We are satisfied that

the evidence and the documents involved give ample support to the court's finding and

conclusion.

Appellant relies strongly upon the notations in the bill of lading and confirmation that

there was to be storage “in transit,” and upon the Western States Movers' Conference Tariff

provisions above quoted. At first blush these items appear to lend support to appellant's

contention. Yet many items militate in support of the trial court's conclusion. The destination

of the shipment was from the shipper herself, as consignor, to the shipper herself, as

consignee, in care of the warehouse at Las Vegas. There is not the slightest indication

anywhere in the case that further transportation was to be required. Upon arrival of the goods

at the warehouse in Las Vegas the consignor-consignee was at complete liberty to keep or

leave it in storage or to transport it by any means she might choose to some other, or further,

destination. Transportation under the contract had ceased. The fact that “storage-in-transit”

had been checked in the contract could not make it so if it was not so. Although appellant

relies strongly on Miller v. Greyvan Lines, 284 App.Div. 133, 130 N.Y.S.2d 378, 382, that

court noted: “* * * if the interstate commerce aspect of this shipment was ended at the time of

the fire loss, the limitation of liability is not applicable. ‘In determining * * * whether the

contract has been discharged and the case removed from the operation of the federal act,

regard must, of course, be had to the substance of the transaction. The question is not one of��0�'


form, but of actuality'.” Such is precisely the situation here.

Nor do the provisions of secs. (A) and (C) of the Western States Movers' Conference

Tariff support the contention of appellant. Under (A), storage-in-transit covered by the tariff

is clearly defined as the holding of the shipment in the warehouse of the carrier or its agent,

pending further transportation. Section (C) merely provides the maximum time of 60 days in

warehouse, after which there is the presumption that the interstate character of the shipment

will cease. Appellant insists repeatedly that this is equal to a provision that the interstate

character of the shipment maintains for a full period of 60 days after unloading into the

warehouse. This is simply a non sequitur. The goods were no longer in transit after arrival at

destination, with no further transportation contemplated. The 60-day provision has no bearing

on the issues of this appeal. The goods were no longer in the course of transportation. They

were no longer “in the course of passing from point to point.” See More, Reynolds & Co. v.

Lott, 13 Nev. 376, 383; Davis v. First National Bank (Tex.Civ. App.), 245 S.W. 1009.

There was received in evidence a form of Atlas Storage & Transfer, Inc., “Non Negotiable

Warehouse Receipt and Contract” which contained a complete description of all of the goods.

This, however, was never executed or delivered. On the contrary, when respondents called at

the warehouse in response to notification that the goods had arrived, they paid and received a

receipt for the Bekins transportation bill of $371.64 and storage charge of $26 from January

29, 1954 to February 29, 1954. Atlas also issued and delivered its separate receipt for this

total of $397.64. Such receipt bore the Bekins shipment number 6020. The Atlas Storage

manager, in explaining the transaction of the payment of the money, the issuance of the

receipt, and the withholding of the complete form of Nonnegotiable Warehouse Receipt and

Contract, stated that he withheld such receipt, waiting for the expiration of the 60-day period��


when the interstate transportation status would cease. His appraisal of the situation can lend

no support to the same contention now made by appellant.

Appellant cites a number of cases, in some of which the court held that the transportation

service had not terminated and that the limitation of liability clause in the bill of lading

applied. In others, the court found that the interstate nature of the transportation had

terminated and that therefore the limitation of liability clause did not apply. In virtually all

cases the court laid down the general rule that although the limitation of liability applied if the

interstate nature of the transportation was still in effect, it likewise recited the converse, that if

the transportation service had terminated, liability clauses in the bill of lading, under the

applicable tariff regulations no longer applied. See Manlowe Transfer & Distributing Co.,

Inc. v. Department of Public Service of Washington, 18 Wash.2d 754, 140 P.2d 287, 155

A.L.R. 928, holding that the essential character of the commerce and not the mere billing or

forms of contract determine the status of the movement of the freight at the time of loss; and

the annotation of that case in the A.L.R. citation with many cases cited in support of the

general statement, “Intent,” says the annotator, “while not alone conclusive, is probably the

most important single determinant of continuous carriage.” See also Oregon R. & Navigation

Co. v. Campbell (Circuit Court, D. Ore.), 180 F. 253; Gulf, C. & S. F. Railway Company v.

Texas, 204 U.S. 403, 27 S.Ct. 360, 51 L.Ed. 540; Southern Ry. Co. v. Prescott, 240 U.S. 632,

639, 36 S.Ct. 469, 472, 60 L.Ed. 836; Cleveland, C. C. & St. L. R. Co. v. Dettlebach, 239

U.S. 588, 36 S.Ct. 177, 60 L.Ed 453 (in which, though holding that the interstate

transportation covered all services including warehouse at terminal, relied, with repeated

emphasis, on clauses in the bill of lading covering such matters, which do not appear in the

instant bill of lading, and based its conclusion upon the terms of the bill of lading); Western

Transit Co. v. A. C. Leslie & Co., 242 U.S. 448, 37 S.Ct. 133, 61 L.Ed. 423 (involving

storage in transit, as against our present situation in which we have found that the storage was

not �� ;�


in transit, as no further transportation was contemplated). See also dissenting opinion of Mr.

Justice Clarke in which Justices McKenna, Brandeis and Day concurred in Erie Railroad

Company v. Shuart, 250 U.S. 465, 39 S.Ct. 519, 63 L.Ed. 1088, where, under the facts, the

majority held that the interstate service of the railroad had not terminated.

[Headnote 2]

As we have noted, the briefs and oral argument were concerned entirely with the question

as to whether or not the interstate transportation had ceased, to the end that the limitation of

liability was or was not in effect at the time of the destruction of the goods by fire in the

warehouse. Appellant's opening brief had made no mention of lack of agency in the

warehouse on behalf of the carrier as its principal. The answering brief had casually

mentioned that there was ample evidence to support the court's finding of agency. Appellant's

reply brief mentioned just as casually, in answer to respondents' statement that, if the goods

had once been removed from the warehouse by the consignees, the interstate character of the

shipment would, of course, have come to an end, that the only trouble with this theory was

that then the warehouse would have ceased to be Bekins' agent, and respondents' only action

would be against Atlas. The unbriefed and unargued question of agency impelled us to ask

counsel to submit further briefs on the point. These further briefs brought forth nothing new

of importance. Appellant simply injected into the case (for the first time) the fact that three

Bekins companies were involved, namely, Bekins Van & Storage Co., Bekins Van Lines,

Inc., and Bekins Van Lines Co., three separate entities, with different authorizations for

transportation, and that the appellant herein, Bekins Van & Storage Co. (although it had

accepted the contract to transport the goods from California to Nevada), was a common

carrier operating solely in the state of California. We find, from its expert witness, that Bekins

Van Lines is a collective name, does not refer to any one of the specific companies, that there

are several such �� 9�� *�,�� E��>�� *�,�� E��>�� 0�� *�,�� E��N��)�-��*�,�� E��N��)�


companies through the United States, that Bekins Van Lines includes all of them, and that

this particular transaction was with Bekins Van Lines' division of Bekins Van & Storage Co.;

that Bekins Van & Storage Co. was the agent and that Bekins Van Lines' division was the

carrier. This labyrinth leads us nowhere. The simple answer, however, is found in appellant's

reply brief in distinguishing from the present case the facts in Davis v. First National Bank

(Tex.Civ.App.), 245 S.W. 1009, in which appellant notes that that case involved “a situation

where the carrier gave up the goods to a stranger. In our case the carrier relinquished the

goods to its agent * * *.”

There was introduced in evidence a “special agency agreement” in which Atlas Storage &

Transfer, Inc., is appointed agent. It is peculiar in some respects. The principal is not named

as Bekins Van & Storage Co. but as “Bekins Van Lines, Inc., and/or Bekins Van Lines Co.,

corporations, hereinafter called ‘the carrier'.” It appoints Atlas “as its special agent at Las

Vegas, Nevada, for the sole and exclusive purpose of soliciting and securing long distance

moving business for the carrier * * *.” However, this “exclusive” purpose is expanded by the

acceptance of a number of obligations by the agent—10 in number. “6th: The agent further

agrees: (1) that it will pick up, distribute and hold shipments of goods for the carrier when

requested * * *.”

Appellant calls attention to the fact that Bekins Van & Storage Co. was not a party to this

agency agreement. Yet the other two Bekins companies therein agreed that Bekins Van &

Storage Co. would assign to Atlas all rail and water freight shipments under the control of

Bekins Van & Storage Co. destined for the city in which the agent operates.

It is worthy of some note that Atlas admits the agency in storing the goods. It is of some

further significance that in the regular form of Nonnegotiable Warehouse Receipt and

Contract utilized by Atlas in general (and prepared but not issued or delivered in this

particular instance as above noted), there is endorsed the following: “Authorized agent for—”

and then appears the *�,�� 0�� <��,� ��9�� &*�,�� E��>�� O��C��'


Bekins' usual trade-mark sign, bearing a map of the United States, and reading, “Bekins Van

Lines—Nationwide Moving.”

There was ample support for the finding of agency.



____________

��76 Nev. 361, 361 (1960) Reed v. State Ex Rel. Stewart��

HELEN SCOTT REED, Individually, and as County Clerk of the County of Clark, State of

Nevada, Appellant, v. STATE OF NEVADA, Ex Rel. AL STEWART, Respondent.

No. 4349

August 9, 1960 354 P.2d 858



Petitioner brought mandamus proceeding to compel county clerk to place on Democratic

party ballot at primary election the name of the petitioner as a candidate for office of county

commissioner. The trial court rendered judgment adverse to the county clerk, and the county

clerk appealed. The Supreme Court, Badt, J., held that where petitioner on June 16, 1954

filed with county clerk an affidavit of registration, in which petitioner designated his political

affiliation as that of a nonpartisan voter, and on April 27, 1960 he filed affidavit of

registration with county clerk designating his political affiliation to be that of Democratic

party, and on June 21, 1960 he filed in office of county clerk a declaration of candidacy, as a

member of the Democratic party, for office of county commissioner, county clerk properly

refused to place name of petitioner on ballot because of failure of petitioner to comply with

statute requiring that declaration of candidacy state that candidate had not reregistered and

changed designation of �� 7��12# �


political party affiliation on official affidavits of registration since last general election and

that candidate was affiliated with political party at last general election, since petitioner failed

to show that he was affiliated with the Democratic party at time of general election of 1958.

Reversed.

Honorable Roger Foley, Attorney General; Honorable Norman H. Samuelson, Deputy

Attorney General; Honorable George Foley, District Attorney, Clark County; Honorable

Jack C. Cherry, Deputy District Attorney, for Appellant.

Mr. Al Stewart, in Propria Persona, for Respondent.

Elections.

Where petitioner on June 16, 1954 filed with county clerk an affidavit of registration, in which

petitioner designated his political affiliation as that of a nonpartisan voter, and on April 27, 1960 he filed

affidavit of registration with county clerk designating his political affiliation to be that of Democratic

party, and on June 21, 1960 he filed in office of county clerk a declaration of candidacy at primary

election, as a member of the Democratic party, for office of county commissioner, county clerk properly

refused to place name of petitioner on ballot because of failure of petitioner to comply with statute

requiring that declaration of candidacy state that candidate had not reregistered and changed designation

of political party affiliation on official affidavits of registration since last general election and that

candidate was affiliated with political party at last general election, since petitioner failed to show that he

was affiliated with Democratic party at time of general election of 1958. NRS 294.125.

OPINION


This appeal presents for our determination the necessity for compliance with statutory

requirements with reference to the form and content of declarations of candidacy for office at

a primary election. The question comes to us on an appeal from the judgment of the court

below directing the issuance of a peremptory writ of mandamus commanding the county clerk

of Clark )��7��3��123%��5��


County to place upon the Democratic primary ballot at the primary election of September 6,

1960 the name of the petitioner below, Al Stewart, respondent herein, as a candidate for the

office of county commissioner. The county clerk had notified respondent of her refusal to do

so by reason of failure of compliance with statutory requirements.

The statute in question is NRS 294.125, entitled by the Code Commission, “Declaration of

Candidacy, * * * Form.” It reads as follows:

“Nomination Paper of..............................for the Office of................................., State of

Nevada, County of .............................., ss. For the purpose of having my name placed on the

official primary ballot as a candidate for nomination by the ................Party as its candidate

for the office of ....................., I, the undersigned..............., do solemnly swear(or affirm) that

I reside at No........., .................................Street, in the City (or Town)

of......................................, County of ............................, State of Nevada, and that I am a

qualified elector of the election precinct in which I reside; that I am a member of

the....................Party; that I have not reregistered and changed the designation of

my political party affiliation on an official affidavit of registration since the last general

election; that I believe in and intend to support the principles and policies of such political

party in the coming election; that I affiliated with such party at the last general election of

this state; * * *.”

It is contended by appellant that the record on appeal affirmatively shows that respondent

did not and could not comply with the requirement of the statute which we have italicized

above. We have concluded that the contention is well made.

It appears from the record that on June 16, 1954 Mr. Stewart filed with the county clerk of

Clark County an affidavit of registration in which he designated his political affiliation as that

of a nonpartisan voter; that on April 27, 1960 he filed an affidavit of registration with the

county clerk of Clark County designating his political ��7��O�� 12#!-��+��1��123%�� ,�� 7��&A�A�A��=��

�� -�A�A�A��=�� -�A�A�A�'


affiliation to be that of the Democratic party—his first change since 1954; that on June 21,

1960 he filed in the office of said county clerk a declaration of candidacy, as a member of the

Democratic party, in which he affirmed “* * * that I have not reregistered and changed the

designation of my political party affiliation on an official registration affidavit since the

last general election; * * * that I affiliated with such party at the last general election of this

state; * * *.” On July 12, 1960 the appellant county clerk advised respondent that his name

would not be placed upon the Democratic primary ballot, and on the same day he filed his

petition for a writ of mandate.

Two points were argued and submitted to the lower court: (1) whether respondent had

changed the designation of his political party affiliation since the last general election, and (2)

whether he affiliated with the Democratic party at the last general election in this state. Such

reference to the last general election of this state had reference to the November 1958 general

election. The learned trial judge, in his written conclusions, concluded that respondent's 1954

registration as Nonpartisan did not mean an affiliation with any political party and that his

1960 registration declaring his political party designation to be that of Democrat did not

effect a change of political party affiliation in violation of that part of NRS 294.125 which

forbade a change of designation of political party affiliation since the last general election. To

this conclusion of the lower court appellant takes no exception. She agrees and stipulates in

her reply brief that such a change—from Nonpartisan to Democrat—is substantially no

change. The trial court, in its written findings and conclusions, did not pass upon the second

issue presented, namely, the question as to whether respondent affiliated with the Democratic

party at the last general election. The only explanation of the court's failure or refusal to pass

on such question is that given by counsel for both parties at the oral argument. They advised

this court that the learned district judge had, in open court, instructed counsel for respondent

to prepare findings and conclusions upon the single issue of the statutory proscription against

change of designation �� 0 ��


of political party affiliation since the last general election, and that the reason for this was the

trial court's view that the requirement for affiliation with the party at the last general election

was so related to and bound in with the proscription against change of political party

affiliation, that the former could not be considered individually or without considering its

relation to the latter.

Respondent supports the writ of mandate for the same reason. He contends that the

requirement for party affiliation at the last general election may not be considered out of

context with the remainder of the section or with other sections of the code. He in effect

makes the problem one of statutory construction which points to a legislative intent which

will not support a rejection of a declaration of partisan candidacy for the bare reason that the

candidate had not affiliated with the party for a period of time extending back to the last

general election. He further broadens the meaning of the word “affiliate” to one under which

an unexpressed mental approval of party policy would constitute such affiliation and under

which no act of affiliation would be required. In short, he contends that “affiliation” (which

could be manifested in many ways) is a far different thing from a “designation” of party

affiliation, and that his actual affiliation has not been successfully challenged.

We must reject these theories. They are negatived by respondent's own affirmations.

Respondent asserts: “In truth and in fact, petitioner had no political party affiliation prior to

the [27th] day of April 1960.” He further asserts: “To run the risk of being elementary, the

very definition of the word ‘Nonpartisan' means no party.” While this is not entirely accurate,

respondent's meaning is clear. The expression “nonpartisan” means, rather, “no partisanship.”

A partisan, according to Webster, is a strongly devoted adherent; and nonpartisan, under the

same authority, means “characterized by absence of partisanship.” Respondent further states:

“The respondent, prior to his registration on April [27th], 1960, was not a member of any

political party as he was registered as a Nonpartisan.” These frank statements, in our opinion,

are in direct conflict with the statutory requirement that � �� 7��12# �� 12#!��5��123%�


respondent, by oath or affirmation, show that he affiliated with the Democratic party at the

general election of 1958, a situation effectively negatived by his registration as a Nonpartisan

from 1954 to April, 1960.

This court unanimously held in State ex rel. Thatcher v. Brodigan, 37 Nev. 458, 142 P.

520, 522, that the statute then in effect [Stat. 1913, c. 284], and containing the same clause

now under consideration, required that the substantial elements of the prescribed affidavit

should be contained “in the affidavit made by the party seeking nomination.” The court then

listed such substantial elements—11 in number. The sixth one was “Declaration of having

affiliated with that same party at the last general election held in this state.” This court then

said: “By these declarations under oath, made prerequisites for one seeking party nomination,

it was undoubtedly intended to require the applicant to declare the party of which he was a

member and with which he affiliated at the last general election, and this must be the same

party under whose party designation he seeks the nomination at the ensuing primary.” Other

strong language appearing in the opinion further supports the conclusion that we have

reached.

The judgment of the district court ordering the appellant county clerk to place the name of

respondent Al Stewart upon the ballot at the primary election to be held September 6, 1960 as

a candidate for county commissioner is hereby reversed. Let remittitur issue forthwith.

Pike, J., concurs.

Chief Justice McNamee did not participate in the consideration or determination of this

appeal, and both parties stipulated to the submission of the appeal to Justices Badt and Pike.

____________

��76 Nev. 367, 367 (1960) Adelson v. Young Elec. Sign. Co. (X App.)��

ADELSON, INC., a Corporation, Appellant, v. YOUNG ELECTRIC SIGN COMPANY, a

Corporation, Respondent.

No. 4277

YOUNG ELECTRIC SIGN COMPANY, a Corporation, Appellant, v. ADELSON, Inc.,

a Corporation, Respondent.

No. 4278

September 19, 1960 355 P.2d 173



Action was brought to replevy neon display sign or, in event that sign could not be

delivered, to recover judgment for reasonable value thereof in the sum of $2,500, and the

defendant filed a counterclaim alleging ownership of sign and seeking judgment barring

plaintiff from asserting any interest in sign. The lower court rendered judgment for plaintiff

for $2,500, and the defendant appealed, and the plaintiff cross-appealed. The Supreme Court,

Pike, J., held that where District Court did not rule on plaintiff's motion to amend complaint

so as to seek reasonable rental value of sign, and no finding pertaining to reasonable rental

value was made, and there was no motion by plaintiff to obtain such a finding or an alteration

of judgment for plaintiff for $2,500, and only specification of error on cross-appeal of

plaintiff was the awarding to plaintiff of judgment restricted to $2,500, and plaintiff did not

assign as error either failure of District Court to grant plaintiff's motion to amend with

reference to reasonable rental value, or its failure to make finding or enter judgment with

reference to reasonable rental value, plaintiff's notice of appeal precluded Supreme Court

from considering issue of reasonable rental value.

Judgment affirmed.

(Petition for rehearing denied in No. 4278, October 20, 1960.)


Calvin C. Magleby and Albert M. Dreyer, of Las Vegas, for Adelson, Inc.

Samuel S. Lionel, of Las Vegas, for Young Electric Sign Co.

1. Bailment. In action to replevy neon display sign, which plaintiff had leased to defendant, wherein defendant by

counterclaim alleged ownership of sign, on ground that defendant had exercised alleged option to purchase

the sign, evidence sustained trial court's findings that no option had been granted by plaintiff to defendant

and that, even if there had been an option granted, defendant did not exercise it.

2. Appeal and Error. Trial court's findings supported by substantial evidence would not be disturbed by Supreme Court on

appeal.

3. Replevin. In action to replevy neon display sign or to recover the reasonable value thereof in the sum of $2,500,

evidence sustained trial court's finding that sign had value of $2,500 rather than value of $5,500 as witness

for plaintiff testified.

4. Appeal and Error. Where action was brought to replevy neon display sign or for reasonable value thereof in sum of $2,500,

and District Court did not rule on plaintiff's motion to amend complaint so as to seek reasonable rental

value of sign, and no finding pertaining to reasonable rental value was made, and there was no motion by

plaintiff to obtain such a finding or an alteration of judgment for plaintiff for $2,500, and only specification

of error on cross-appeal of plaintiff was the awarding to plaintiff of judgment restricted to $2,500, and

plaintiff did not assign as error either failure of District Court to grant plaintiff's motion to amend with

reference to reasonable rental value, or its failure to make finding or enter judgment with reference to

reasonable rental value, plaintiff's notice of appeal precluded Supreme Court from considering issue of

reasonable rental value. NRCP 73(b).

OPINION


The two above separately numbered appeals, representing, respectively, an appeal and

cross-appeal from the same judgment of the trial court, were consolidated for hearing and

disposition.

Young Electric Sign Company, plaintiff, alleged that �� .��#%%�� 5�� =��


it was the owner of a certain neon display sign of the approximate value of $2,500 which was

wrongfully in the possession of and detained by defendant Adelson, Inc.

Plaintiff prayed judgment for an order directing defendant to deliver to plaintiff possession

of said property and, in event said property could not be so delivered, that plaintiff have

judgment against defendant for the reasonable value thereof in the sum of $2,500.

The answer of defendant Adelson, Inc. denied plaintiff's allegations and, by counterclaim,

alleged defendant's ownership of the sign and sought a judgment barring plaintiff from

asserting any interest in the same.

Defendant came into possession of the sign by reason of a lease agreement with plaintiff.

The lease provided for the extension of the lease for a like term, should the lessee fail to give

notice of intention to cancel prior to the original expiration date, and should continue to use

the sign after such date. Other provisions related to agreed liquidated damages in an amount

equal to three-fourths of the balance of the rental payable under the lease, should the lessee be

in default in the payment of rental or otherwise breach the lease agreement. Plaintiff offered

evidence pertaining to reasonable rental for use of the sign by defendant after the original

expiration date of the lease based upon continued use of the sign by defendant after that date,

and the formula for agreed liquidated damages above referred to.

Judgment of the trial court was that plaintiff “* * * have judgment against the defendant,

Adelson, Inc., for the return of the doublefaced neon sign * * * and in the event the defendant

fails or is unable to return the said sign to the plaintiff within 15 days from the date hereof * *

* that plaintiff have judgment against the defendant for the sum of $2,500.”

Defendant Adelson, Inc. appealed from such final judgment and filed its undertaking

covering both costs on appeal and staying execution of the judgment pending determination

of the appeal. Plaintiff appealed “* * * from that portion of the final judgment entered ��/��@��12#2�� .��#%%�'


on the 7th day of October 1959, insofar as said judgment limited the damages of the plaintiff

to the sum of $2,500.”

Plaintiff urges in its briefs and oral argument that, although its amended complaint alleged

the approximate value of the sign to be $2,500, evidence adduced at the trial showed the

value of the sign to be $5,500 and it seeks a modification of the judgment in its favor for

either the sum of $8,089.73, claimed to be the reasonable rental value of the sign, or for the

sum of $5,500 as the value of the sign.

Although plaintiff's complaint contained no allegations with reference to a claim for

reasonable rental of the sign, evidence pertaining to reasonable rental value was introduced at

the trial over the objections of defendant and, by motion made during the trial, plaintiff's

counsel sought an order of court permitting an amendment of plaintiff's pleading so as to

include this claim for reasonable rental. Plaintiff renewed such motion after the close of the

evidence, but the trial court did not rule upon the motion and, in its decision rendered prior to

judgment, and in the judgment made no reference to the reasonable rental sought by plaintiff.

The appeal of Adelson, Inc. assigns error on the part of the trial court in its failure to find

and hold that defendant was the owner of the sign by reason of a certain claimed option to

purchase the sign for the sum of $1 upon full performance by defendant of the terms and

conditions of the written lease agreement between the parties. Such lease agreement covering

a three-year period ending March 31, 1958 made no mention of any such option, but

defendant offered evidence of the contents of a letter claimed to have been received by

defendant from plaintiff granting the option subsequent to the execution of the lease

agreement. Defendant corporation did not produce such letter at the trial but, over objection,

two of its officers, after testifying that the letter was lost, testified concerning the substance of

its contents, and a former general manager of plaintiff corporation, one Jack Young, testified

that he had written an option letter to defendant. The testimony of the last �� <�� &��%�� '


mentioned witness was not definite as to the terms of the missing letter, but stated his

recollection that it provided that, upon satisfactory performance by defendant of the

three-year lease agreement of the sign, defendant would have the option of purchasing the

sign for “either 20 percent of the outright sales price or one dollar.”

Plaintiff corporation denied the granting of the option to purchase, and the general

manager of the sign company, one Vaughn Cannon, testified that a search of the corporate

records failed to disclose a copy of any such option letter. The evidence shows that such

witness had been an employee of the sign company for some 12 years previous, and service

manager for the corporation at the time that the option letter was claimed to have been written

to defendant by plaintiff's then general manager. He testified concerning the business practice

of the corporation to maintain a copy of any such option letter in its Las Vegas office, as well

as copies in the company's Salt Lake City office and in a bank safe deposit box. Plaintiff also

introduced into evidence a copy of an option letter of the nature claimed by defendant and

signed by the former general manager for the sign company, which letter, however, related to

an entirely different and prior transaction pertaining to a sign lease agreement between

plaintiff and defendant.

[Headnotes 1, 2]

With this evidence before it the trial court found that there was no option granted by the

plaintiff to the defendant and, even if there had been an option to purchase, defendant did not

exercise it. The finding and judgment of the trial court in this regard is supported by

substantial evidence and will not be disturbed upon this appeal. This holding disposes of the

appeal of Adelson, Inc.

The cross-appeal of plaintiff requires that primary consideration be given to its notice of

appeal from the judgment. Rule 73(b) NRCP provides that such notice must specify the

judgment or the part thereof appealed from and here the notice specifies that plaintiff appeals

“* * * from that portion of the final judgment entered on the 7th day of October 1959 insofar

as said judgment �� .��#%%�'


limited the damages of the plaintiff to the sum of $2,500.” Here the judgment of the trial

court was, by its terms, limited to a judgment for the return of the sign and an alternative

judgment for its value if not returned. The decision in Lambert v. McFarland, 2 Nev. 58,

pointed out that in an action of replevin the primary object of the action is the recovery of the

property, and judgment for its value in damages is only authorized when a delivery of the

property itself cannot be had.

This was the nature of the judgment sought by plaintiff in the instant case. Had plaintiff

elected to do so, it could have recovered possession of the sign prior to judgment through the

provisional remedy of claim and delivery. NRCP 64, NRS 31.840. The record shows that, at

the time of trial and entry of judgment, the sign continued in the possession of defendant and,

so far as appears, there is no reason why the judgment for the delivery of the sign to plaintiff

cannot be satisfied by the sheriff under a writ of execution. Rule 70 NRCP. NRS 21.050.

If the language contained in plaintiff's notice of cross-appeal be interpreted to include an

appeal from the amount awarded in the alternative as the value of the property sought to be

recovered in the event that its delivery cannot be had, the record does not support the sign

company's contention on appeal that the testimony of Cannon as to the value of the sign being

$5,500 was uncontradicted.

[Headnote 3]

Plaintiff had pleaded that the sign had a reasonable value of approximately $2,500. The

lease agreement provided, “It is agreed by the parties hereto that the Sign is of special

construction made for the uses and purposes of the lessee and no other, and that except for

use by the lessee the Sign has no value.” There was evidence that the sign had been in use for

three years prior to April 1, 1958. Jack Young, who had supervised the installation of the

sign, testified that the only value that the sign had in April 1958 was the value it would have

had to defendant. He also testified that the sign was not � ��5��12# �� C��12##��


as good in April of 1958 as when it was installed in March of 1955, some three years earlier,

by reason of wear, tear, and use. The witness referred to certain elements of deterioration to

the transformers, wiring, and paint. Accordingly, there was conflict in the evidence as to the

value of the sign on the specified date, and the court having resolved the issue by its holding

that the sign was worth less than the amount indicated by Cannon's testimony, the amount of

such judgment will not be modified on this appeal.

The trial court, while not ruling upon plaintiff's motion to amend plaintiff's complaint, so

as to seek reasonable rental value commencing April 1, 1958, commented in effect that

perhaps an amendment was not necessary for the reason that, if the evidence so merited, the

court might at any time make findings to conform to the proof. However, no finding

pertaining to reasonable rental value was made by the court and the record shows no motion

by plaintiff to obtain such a finding or an alteration of judgment. The trial court did not make

specific reference to any rules of civil procedure, and we find it unnecessary to determine this

point. The only specification of error on the cross-appeal is the awarding to Young of a

judgment restricted to $2,500. Young does not assign as error either the failure of the court to

grant plaintiff's motion to amend with reference to reasonable rental value, or its failure to

make a finding or enter judgment with reference to the same. Furthermore, Rule 73(b) NRCP

provides that the notice of appeal shall designate the judgment or part thereof appealed from,

and only those parts of the judgment which are included in the notice of appeal will be

considered by the appellate court. Reno Newspapers, Inc. v. Bibb, 76 Nev. 332, 353 P.2d 458,

and authorities there cited.

[Headnote 4]

The $2,500 provided in the judgment to be paid in the alternative as the value of the sign

cannot be construed as a judgment or a portion of a judgment relating to the issue of

reasonable rental for the same. This being ��0 ��


true, plaintiff's notice of appeal precludes this court from considering the issue of reasonable

rental value. Judgment affirmed, with no costs to either appellant or cross-appellant.


____________

��76 Nev. 374, 374 (1960) Nevada Gaming Commission v. Byrens��

NEVADA GAMING COMMISSION and GAMING CONTROL BOARD, and Each, Every

and All of the Members Thereof, Appellants, v. HERMAN BYRENS, Doing Business as

RENO TURF CLUB, Respondent.

No. 4350

September 20, 1960 355 P.2d 176


Department No. 2.

On motion to dismiss appeal.

Certiorari proceeding. The lower court entered orders refusing to dismiss petition for, or

quash, writ of certiorari, and appeal was taken. The Supreme Court held that the orders were

not final judgments from which appeal could be taken, and that writ provision commanding

litigants to desist from further proceeding in the matter to be reviewed was not type of

injunction contemplated by rule authorizing appeal from an order granting an injunction.

Appeal dismissed.

Roger D. Foley, Attorney General, Norman H. Samuelson, Deputy Attorney General, and

Michael J. Wendell, Special Deputy Attorney General, for Appellants.

Vargas, Dillon & Bartlett and Alexander A. Garroway, of Reno, for Respondent.


1. Appeal and Error. No appeal lies except when authorized by statute or by rules properly promulgated, such as Nevada Rules

of Civil Procedure. NRCP 72(b) (2).

2. Appeal and Error. Neither an order refusing to dismiss petition for writ of certiorari nor an order refusing to quash a writ is

“final judgment” from which appeal can be taken. NRCP 72(b).

3. Appeal and Error. Writ of certiorari provision commanding litigants to desist from further proceeding in the matter to be

reviewed was not type of “injunction” contemplated by rule authorizing appeal from an order granting an

injunction. NRCP 72(b) (2); NRS 34.060.

OPINION

Per Curiam:

Upon this appeal from an order dated May 25, 1960 denying the motion of respondents to

dismiss the Petition for Writ of Certiorari and to quash the Writ of Certiorari dated April 19,

1960, the matter is before us on motion of respondent to dismiss the appeal upon the ground

that said order of May 25, 1960 is not a final order in the case and is not appealable.

[Headnote 1]

No appeal lies except when authorized by statute or by rules properly promulgated such as

the Nevada Rules of Civil Procedure. Quinn v. Quinn, 53 Nev. 67, 292 P. 621;

Johns-Manville, Inc., of California v. Lander County, 48 Nev. 244, 229 P. 387, 234 P. 518.

[Headnote 2]

Rule 72(b) NRCP states precisely what determinations are appealable, and does not

include either an order refusing to dismiss a petition for a writ of certiorari or an order

refusing to quash a writ. Furthermore neither of these is a final judgment. Smith v. Hamilton,

70 Nev. 212, 265 P.2d 214.

[Headnote 3]

Rule 72(b) (2) NRCP authorizes an appeal from an order granting an injunction.

Respondent maintains that ��


the writ of certiorari, which contains a provision commanding the appellants in the meantime

to desist from further proceeding in the matter to be reviewed, is an injunction and therefore

an appealable determination.

NRS 34.060 relating to the contents of a writ of certiorari provides:

“The writ of review shall command the party to whom it is directed to certify fully to the

court before which the writ is returnable, at a specified time and place, and annex to the writ a

transcript of the record and proceeding, describing or referring to them with convenient

certainty, that the same may be reviewed by the court, and requiring the party, in the

meantime, to desist from further proceedings in the matter to be reviewed.”

We are of the opinion that the injunction feature of the writ which corresponds to the

restraining provisions of NRS 34.060 is not the type of injunction contemplated by Rule

72(b) (2) NRCP. A direct appeal therefore may not be taken from it. Harrison v. Harrison, 54

Nev. 369, 17 P.2d 693.

It is ordered that the appeal be dismissed.

Our decision herein is limited to a denial of the right of appeal from specific interlocutory

orders, in conformity with the express provisions of the Nevada Rules of Civil Procedure

designating what matters are appealable.

Appellants are not to assume that they are precluded from proceeding to final judgment on

the petition in the court below from which judgment an appeal to this court would lie, or from

presenting to this court any original petition for such extraordinary remedy as may be

available to them.

____________

��76 Nev. 377, 377 (1960) Smith v. Garside��

GLADYS SMITH, Appellant, v. SHERWIN GARSIDE and RAYMOND GERMAIN, dba

BONANZA PRINTERS, INC., Respondents.

No. 4284

September 29, 1960 355 P.2d 849

Appeal from a judgment of dismissal of the Eighth Judicial District Court, Clark County;

A. S. Henderson, Judge, Department No. 2.

Common-law action by employee against her employers for chest infection which resulted

from failure of employers' heating facilities and which developed into idiopathic pericarditis

and then into systemic lupus erythemotosis. The trial court granted employers' motion to

dismiss, and employee appealed. The Supreme Court, Badt, J., held that injuries suffered by

employee did not result from “accident” within the Industrial Insurance Act, and, therefore,

such act would not preclude a common-law action by employee against employer for injuries

sustained, that complaint was sufficient to state cause of action based upon employers'

negligent failure to provide heat in building in which employee was employed and to allege

that such negligence, if any, was proximate cause of employee's illness, and that, where

employee, who had incurred a disease which could prove fatal, testified that her earnings had

been reduced from $100 to $35 a week, but there was the lack of proof of her life expectancy,

fact that jury might be limited in amount of damages by loss of her earning capacity would

not, under submission of case to jury on proper instructions, preclude them from finding such

damages as might be warranted on such and other items, in view of facts that some 3 1/2

years had elapsed from date of inception of illness to date of trial, and that employee had

testified to her pain and suffering and to her incurrence of $2,500 in medical and hospital

bills.

Reversed and remanded.

Harry E. Claiborne, of Las Vegas, for Appellant.

Denton & Smith and George F. Ogilvie, Jr., of Las Vegas, for Respondents.


1. Workmen's Compensation. Where an employee's condition results from an accident and is compensable under the Industrial

Insurance Act or is result of an occupational disease and is compensable under the Occupational Diseases

Act, employee is not entitled to recover from employer for such condition in a common-law action for

damages. NRS 616.010 et seq., 617.010 et seq.; NRCP 41(b).

2. Workmen's Compensation. Where employee, as result of failure of employers' heating facilities, became chilled, suffered severe

chest pains, and was then treated for pleurisy, idiopathic pericarditis, and systemic lupus erythemotosis,

employee's condition was not result of an “occupational disease” since such disease was not one which did

not come from hazard to which workman would have been equally exposed outside employment and

disease was not incidental to character of the business, and, therefore, employee was not precluded from

bringing common-law action against employers for such injury. NRS 617.010 et seq., 617.440.

3. Workmen's Compensation. Where, upon failure of employers' heating facilities, employee became chilled, suffered severe chest

pains, and was treated first for pleurisy, then idiopathic pericarditis, and then for systemic lupus

erythemotosis, injuries suffered by employee did not result from “accident” within the Industrial Insurance

Act, and, therefore, such act would not preclude a common-law action by employee against employers for

injuries sustained. NRS 616.010 et seq., 616.020, 616.110.

4. Workmen's Compensation. Where employee's injury was not result of accident within Industrial Insurance Act, fact that employee

had applied to Industrial Commission for relief and that commission had paid some of her initial medical

and hospital bills would not constitute, on employee's part, an election which would preclude her from

seeking common-law relief against her employers. NRS 616.010 et seq.

5. Master and Servant. In common-law action by employee against employers for chest infection which employee received due

to failure of employers' heating facilities and which developed into idiopathic pericarditis and then into

systemic lupus erythemotosis, complaint was sufficient to state cause of action based upon employers'

negligent failure to provide heat in building in which employee was employed and to allege that such

negligence, if any, was proximate cause of employee's illness. NRS 618.230, 618.240.

6. Damages. Where employee, who had incurred a disease which could prove fatal, testified, in common-law damage

action against employers, that her earnings had been reduced from $100 to $35 a week, but there was lack

of proof of her life expectancy, fact that jury might be limited in amount of damages by loss ��

�� "�1I�� .��#%%��


of her earning capacity would not, under submission of case to jury on proper instructions, preclude them

from finding such damages as might be warranted on such and other items, in view of facts that some 3 1/2

years had elapsed from date of inception of illness to date of trial, and that employee had testified to her

pain and suffering and to her incurrence of $2,500 in medical and hospital bills.

OPINION


Plaintiff below, appellant herein, commenced a common-law action for damages by reason

of becoming afflicted with a chest infection which developed into idiopathic pericarditis and

then into systemic lupus erythemotosis, all alleged to result from the negligence of defendants

in failing properly to heat the building where she was employed. At the conclusion of

plaintiff's case, the court granted defendants' motion to dismiss under Rule 41 (b) NRCP. 1

This appeal followed.

[Headnote 1]

Defendants, plaintiff's employers, had accepted the provisions of the Industrial Insurance

Act, and it is conceded that plaintiff's condition arose out of and in the course of her

employment. The trial court held that accordingly the plaintiff's exclusive remedy was against

the Nevada Industrial Commission. If, then, her condition was the result of an accident and

compensable under the provisions of the Nevada Industrial Insurance Act, NRS 616.010 et

seq., or was the result of an occupational disease and compensable under the provisions of the

Nevada Occupational Diseases Act, NRS 617.010 et seq., the summary judgment in favor of

defendants was correct. McColl v. Scherer, 73 Nev. 226, 315 P.2d 807. Appellant contends

that her condition was the result neither of an accident nor an occupational disease, and that

she was accordingly at liberty to pursue her common-law remedy against the defendants by

reason of their negligence in �� ,�

____________________

1

“* * * After the plaintiff has completed the presentation of his evidence, the defendant * * * may move for a

dismissal on the ground that upon the facts and the law the plaintiff has failed to prove a sufficient case for the

court or jury.”


failing to provide a safe place for her to work. We have concluded that the law supports these

contentions, thus requiring a reversal of the judgment and a remand for trial of her

common-law action against defendants.

Respondents, in their opening and reply briefs, support the judgment of dismissal on four

grounds: (1) that the injuries suffered by appellant resulted from an accident as that term is

defined in NRS 616.020; or (2) that her condition was the result of an occupational disease as

defined in NRS 617.440; (3) that appellant is bound by her election of remedy in filing a

claim with and accepting benefits from the Nevada Industrial Commission; and (4) that

appellant had failed to prove liability on the part of respondents at common law.

The court in its opinion from the bench granting the motion to dismiss made certain

findings. It first found that there was no accident. It then found that the respondents had

provided appellant an improper place in which to work and that the cold temperature brought

about the condition of appellant's incurable disease; that such was an occupational disease

contracted by reason of the unfitness of the place, being too cold in which to work, and thus

compensable under the Nevada Occupational Diseases Act.

Upon the oral argument respondents abandoned support of the order of dismissal under the

court's theory of an occupational disease, thus taking the position that, while the trial court

was wrong in holding that the plaintiff's condition was an occupational disease, it was

likewise wrong in finding that it did not result from an accident; and that accordingly its

judgment was right and must be affirmed.

Plaintiff was employed by the defendants in the bindery department of their printing plant

in the City of Las Vegas. Toward the end of March 1956 defendants had turned the heat off in

the building because warm weather had set in. However, on about March 28 of that year the

temperature dropped. The plant was a concrete building with a concrete floor and a high roof.

It had no ceiling. It was so cold that the foreman wore a Mackinaw jacket and a cap with ear

muffs. The heating facilities ��


comprised two large gas heaters but they could not be made to function. It was too cold to

work or to handle the papers or the machinery. She complained to both partners and to the

shop foreman. Her testimony in these respects was corroborated. The situation continued for

all of one day and half of the next. Plaintiff became chilled, suffered severe chest pains, was

treated by her doctor and hospitalized, and treated first for pleurisy, then idiopathic

pericarditis and then for systemic lupus erythemotosis. After treatment at the hospital at Las

Vegas, she was sent to the hospital at Beverly Hills, came back to Las Vegas, and was

examined and treated from time to time thereafter. The medical testimony indicated the

treatment in detail, the plaintiff's failure to respond to it and eventually the findings of the

pathologist to verify the diagnosis of lupus cells in the bloodstream, the progress of which

cells closes off the little blood vessels in the organs, causing them to fail to function and

inevitably resulting in the death of the patient; that her being subjected to the exposure to cold

where she worked triggered the disease's process. As a result she is unable to follow her

former work or perform any violent exercise. She is no longer able to drive a car, or to

perform work in the printing trade. She has trouble in climbing stairs and even in walking.

She is able to work only about half time, and at work not involving such activity as required

in her former work of handling power cutters, folding and stitching machines and in handling

and cutting paper. Her former earnings of $100 a week are supplanted by activities that

provide $35 a week. She introduced in evidence medical, hospital, and drug bills aggregating

some $2,500. She filed a claim with the Nevada Industrial Commission which paid her

hospital bills in Las Vegas and her medical bills up to May 21, 1956, but no later bills

accruing and no compensation.

[Headnote 2]

(1) We have noted the four grounds upon which respondents seek to sustain the dismissal

at the conclusion of plaintiff's case, and the abandonment of the ��


ground that her condition was the result of an occupational disease. This was necessarily so

by reason of the requirements of NRS 617.440 requiring that such disease “does not come

from a hazard to which workmen would have been equally exposed outside of the

employment,” and that “the disease must be incidental to the character of the business.”

(2) In support of the judgment that the injuries suffered resulted from an accident as that

term is defined in NRS 616.020 (contrary to the finding of the trial judge), respondents refer

first to the statutory definition: “ ‘Accident' shall be construed to mean an unexpected or

unforeseen event happening suddenly and violently, with or without human fault, and

producing at the time objective symptoms of an injury.” Respondents argue that the fall in

temperature was an unexpected and unforeseen event, that it happened suddenly, and that it

produced at the time objective symptoms of an injury, as she became sick in one day, or at the

most two days, and that her chest pains developed immediately. They contend that the

situation therefore meets the definition set forth in the statute as construed by this court in

Pershing Quicksilver Co. v. Thiers, 62 Nev. 382, 390, 152 P.2d 432, 436, and in the later case

of Kennecott Copper Corp. v. Reyes, 75 Nev. 212, 337 P.2d 624. Respondents also cite

several cases from other jurisdictions as examples of “numerous cases” indicating their

conclusion that such a situation is “an accident.” It would serve no purpose to discuss the

Pershing Quicksilver case or the Kennecott Copper case at length. It is enough to say that they

do not support the contention of respondents.

Several of the cases from foreign jurisdictions contain language that would appear to

support their contention, particularly Pan American Airways, Inc. v. Willard, 99 F.Supp. 257

(S.D.N.Y. 1951), in which the court held that an employee who had contracted lupus

erythemotosis by reason of excessive exposure to sunshine, resulting in his death, had

suffered an accidental injury. It is conceded that the case presents a medical parallel in that

extreme exposure to heat and excessive sunshine, as well � ��


as extreme exposure to cold, will trigger lupus erythemotosis. It was held that compensation

had properly been awarded by the deputy commissioner, Federal Security Agency, pursuant

to the Longshoremen's and Harbor Workers' Compensation Act. 44 Stat. 1424, 33 U.S.C.A. §

901, et seq. It does not appear, however, that such federal act contains the definition occurring

in our own statute, NRS 616.110: “‘Injury' and ‘personal injury' shall be construed to mean a

sudden and tangible happening of a traumatic nature, producing an immediate or prompt

result, and resulting from an external force * * *.” (Subparagraph 2 of the same section

indicates that the injury referred to is one resulting from an “accident.”) To the contrary, the

definition contained in the federal act, 33 U.S.C.A. 902(2), so far as applicable, is as follows:

“The term ‘injury' means accidental injury or death arising out of and in the course of

employment

* * *.” This definition entirely omits the restrictive elements contained in the Nevada

definition.

“Traumatic” (derived from the Greek trauma, a wound) is defined by Webster as “of,

pertaining to, or resulting from a trauma; caused by a wound, injury or shock * * *.” This is

even further confined by the Funk & Wagnall definition relied on in Higgins v. Department

of Labor and Industries, infra: “any injury to the body caused by violence.”

Contrary to respondents' contention, a review of the authorities indicates that statutes

corresponding with or similar to the Nevada statute have been uniformly construed to

preclude a happening such as the one here involved.

In the following cases the court was concerned, under statutes identical or similar to our

own, with the same question here presented—whether proof had been made that the

employee's condition was the result of an “accident” as meaning an unexpected or unforeseen

event happening suddenly and violently, with or without human fault, and producing at the

time objective symptoms of an injury, or whether the injury was a sudden ��


and tangible happening of a traumatic nature, producing an immediate or prompt result, and

resulting from an external force. Concededly, the factual situations differed, but we consider

the cases ample authority for the conclusion reached. Such cases are: Higgins v. Department

of Labor and Industries, 27 Wash.2d 816, 180 P.2d 559; Stevens v. Village of Driggs, 65 Ida.

733, 152 P.2d 891; Costly v. City of Eveleth, 173 Minn. 564, 218 N.W. 126; Sonson v.

Arbogast, 60 Ida. 582, 94 P.2d 672; Meldrum v. Southard Feed & Mill Co., 229 Mo.App.

158, 74 S.W.2d 75; Jones v. Yankee Hill Brick Manufacturing Co., 161 Neb. 404, 73 N.W.2d

394; Murray v. National Gypsum Co., 160 Neb. 463, 70 N.W.2d 394. See also, in general, 99

C.J.S. 542, Workmen's Compensation Acts, secs. 163 and 164 under the headings “Ordinarily

there is no right to benefits under Workmen's Compensation Acts for mere disease, that is,

general idiopathic disease, as distinguished from traumatic disease,” and “Under many

statutes there can be no recovery for disease unless there has been some traumatic injury, and

before compensation can be allowed it must be established that the disease was proximately

caused by an accident or injury * * *.”

[Headnote 3]

Just as it would have been doing violence to the plain and commonly understood meaning

of words to have held that Reyes' death in a slide in open pit mining (Kennecott Copper Corp.

v. Reyes, supra) was not the result of an accident, it would do like violence to the statutory

definition to hold here that Mrs. Smith's disease was the result of an accident.

[Headnote 4]

We must accordingly reject the contention that the injuries suffered by appellant resulted

from an accident as that term is defined in our statute.

(3) We must also reject the contention that because appellant had applied to the Industrial

Commission for relief and because the commission had paid some of her initial medical and

hospital bills, this counted as an election on her part, precluding her from seeking

common-law relief. Respondents contend that we so held in First ��*��,��(��?��+��7� ��)��/#��//


National Bank of Nevada v. The Eighth Judicial District Court, 75 Nev. 77, 335 P.2d 79. That

case does not so hold.

[Headnote 5]

(4) Respondents contend further that the dismissal was proper because the plaintiff failed

to prove a prima facie case of liability on the part of the defendants, in that she had not

proved (a) that they were negligent in failing to provide heat in the building where she was

employed or (b) that such negligence, if any, was the proximate cause of her illness; and (c)

even assuming the establishment of negligence and proximate cause, she failed to show the

amount of her damage. We have reviewed above enough of the evidence to indicate that there

was sufficient evidence to go to the jury on points (a) and (b). As to point (a), we may refer

also to NRS 618.230 requiring every employer to furnish a place of employment which shall

be safe for employment therein, and NRS 618.240, providing that no employer shall require,

permit or suffer any employee to go or be in any place of employment which is not safe, or to

neglect to do anything reasonably necessary to protect the safety of employees, or to maintain

any place of employment that is not safe.

[Headnote 6]

As to point (c), respondents urge that while plaintiff testified that her earnings have been

reduced from $100 a week to $35 a week, there was an entire lack of proof of her life

expectancy; that under the medical testimony as to the fatal nature of the disease she might

live for another month or for another 40 years; and any verdict by the jury would be

speculative. However, some three and one-half years had elapsed from the date of the

inception of her illness to the date of trial. That period at least was definite. She had also

testified to her pain and suffering, as well as the incurring of some $2,500 in medical and

hospital bills. The point is accordingly prematurely made. The fact that the jury might be

limited in the amount of damages by loss of her earning capacity would not, under

submission of the case to them on proper instructions, preclude them from finding such��


damages as might be warranted on this, as well as on other items.

The judgment of dismissal cannot be supported on any of the grounds asserted by

respondents.

Reversed with instructions to deny the motion to dismiss, and remanded for further

proceedings.


____________

��76 Nev. 386, 386 (1960) Selznick v. District Court��

ALAN THEODORE SELZNICK and GENEVIEVE SELZNICK, Petitioners, v. EIGHTH

JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE

COUNTY OF CLARK and HONORABLE A. S. HENDERSON, District Judge,

Respondents.

No. 4333

September 29, 1960 355 P.2d 854

Original prohibition proceeding was brought in the Supreme Court to prevent District

Court and the judge thereof from continuing with a tort action against the petitioners, on

ground that District Court had no jurisdiction over the petitioners. The Supreme Court,

McNamee, C. J., held that where petitioners moved, not only to quash service of process

under statute permitting constructive service of summons in any action or proceeding

growing out of the operation of a motor vehicle over the public roads, streets, or highways, on

ground that statute had no application, but moved to dismiss the action against them, they

made a “general appearance” in the action and District Court acquired jurisdiction of them.

Original proceedings in prohibition. Alternate writ vacated and proceedings

dismissed.

Clarence Sundean, of Las Vegas, for Petitioners.

Foley Brothers, of Lag Vegas, for Respondents.


1. Appearance. Defendant, who requests relief additional to that necessary to protect him from defective service of

process, makes a “general appearance” and court acquires jurisdiction of him.

2. Appearance. Where service of summons was made on defendants pursuant to statute permitting constructive service of

summons in any action or proceeding growing out of operation of motor vehicle over public roads, streets,

or highways, and defendants not only moved to quash service of summons, on ground that they were not

subject to service of process under the statute, but moved to dismiss the action, they made a “general

appearance” and District Court acquired jurisdiction of them. NRS 14.070.

3. Prohibition. Where original prohibition proceeding in Supreme Court to prevent District Court from continuing with

tort action against petitioners was based on ground that District Court had no jurisdiction over the

petitioners, but District Court acquired jurisdiction over petitioners because they made a general

appearance, Supreme Court was precluded from issuing writ of prohibition.

OPINION


This is an original proceeding wherein petitioners seek a writ of prohibition to prevent

respondent court from continuing with a tort action against them on the ground that it has no

jurisdiction over petitioners.

Petitioners are husband and wife. Their automobile was involved in an accident on the

premises of the Sahara Hotel in Clark County, Nevada, which resulted in personal injuries to

one of the plaintiffs in said tort action. Service of summons was made on each of the

petitioners pursuant to NRS 14.070 which permits constructive service of summons in any

action or proceeding growing out of the operation of a motor vehicle over the public roads,

streets, or highways in the State of Nevada.

Petitioners contend that the said statute has no application to automobile accidents

occurring on private property such as the Sahara Hotel premises.

Each petitioner filed two motions in the respondent court. One, a motion to dismiss the

action on the ground �� )�� 1!�%/%-��


that movant is a resident of the State of California, that the accident did not occur on a public

road in the State of Nevada, and that movant is not subject to service of process under the

provisions of NRS 14.070; and, two, to dismiss the action or in lieu thereof to quash the

return of service of summons on the ground that movant has not been properly served with

process in the action.

It is unnecessary to consider the validity of the constructive service of summons on either

petitioner or the applicability of NRS 14.070 to the particular situation here involved, for the

reason that we have concluded that both petitioners have entered a general appearance in the

action thereby giving the respondent court personal jurisdiction over them.

[Headnotes 1, 2]

In the case of Barnato v. Second Judicial District Court, 76 Nev. 335, 353 P.2d 1103, this

court held that a defendant who requests relief additional to that necessary to protect him

from defective service of process renders his appearance general. In that case, although

petitioner claimed his motion to dismiss was solely in furtherance of his motion to quash

service of summons, and that quashing service of summons was the only relief desired, we

concluded that petitioner was seeking relief other than the quashing of the service of the

summons, to wit, dismissal of the action. In the present case, counsel for petitioners frankly

admits that he is seeking more relief than the mere quashing of service of summons (or

quashing the return of service of summons). He strongly urges that petitioners are entitled to

the additional relief of having the entire action dismissed as to each of them. This case

therefore falls squarely within the rule of the Barnato case.

[Headnote 3]

This court is precluded from issuing a writ of prohibition, petition for which was based

upon the ground that the respondent court has no jurisdiction over the petitioners, because the

respondent court, for the reasons hereinabove given, acquired personal jurisdiction over the

petitioners through their motions to dismiss.


The alternate writ of prohibition is vacated and the proceedings dismissed.


____________

��76 Nev. 389, 389 (1960) Kelly v. Reed��

JOHN E. KELLY, Petitioner, v. HELEN SCOTT REED, County Clerk, Clark County,

Nevada, VAN ENGLESTEAD, Chairman, Clark County Democratic Central Committee,

JOHN F. MENDOZA, and JACK C. CHERRY, Respondents.

No. 4372

October 7, 1960 355 P.2d 969

Original petition for alternative writ of mandate.

Mandamus proceeding to compel central committee of county political party to certify

petitioner to county clerk as party's nominee for office of District Attorney, to compel clerk to

place petitioner's name on ballot for general election, and to compel clerk to deny request of

nonpartisan candidate for district judge to have his name stricken from general election ballot

as a candidate for district judge. The Supreme Court held that mandamus would not lie to

force central committee of county political party to certify petitioner's name as the nominee

for District Attorney, and that nonpartisan candidate for district judge was not precluded from

having his name stricken from the general election ballot for such office notwithstanding oath

taken in connection with filing of declaration of candidacy, that candidate would not

withdraw from the race.

Petition denied.

E. M. Gunderson and John E. Kelly, of Las Vegas; and Springer, McKissick and Hug, of

Reno, for Petitioner.

��76 Nev. 389, 390 (1960) Kelly v. Reed��

M. Gene Matteucci and John F. Mendoza, of Las Vegas, for Respondents John F.

Mendoza and Van Englestead, Chairman, Clark County Democratic Central Committee.

1. Elections. Statute providing that central committee of county political party shall fill vacancies occurring after the

holding of any primary election does not make action by central committee mandatory in every case of a

vacancy occurring after the holding of every primary election but merely empowers the entity designated to

name a party candidate in case a vacancy arises after primary election on account of the death or

disqualification of a person nominated, or on account of a vacancy in an office caused by death or

resignation of the incumbent. NRS 294.300.

2. Mandamus. Act of central committee of county political party, in filling a vacancy occurring after the holding of a

primary election is not an act which the law especially enjoins as a duty resulting from an office, trust or

station, so that central committee could not be forced by writ of mandamus to certify name of petitioner to

county clerk as the party's nominee for office of District Attorney. NRS 34.160.

3. Mandamus. Where name of petitioner had not been certified by central committee of county political party to county

clerk for placement on ballot for general election to fill vacancy occurring after the primary election,

county clerk could not be compelled to place name of petitioner on general election ballot as a candidate.

4. Officers. A statutory or constitutional provision prohibiting one person from filling two offices at one time does

not preclude a candidate from seeking or accepting nomination for more than one office in the absence of

express statutory prohibition.

5. Officers. Constitutional provision that district judges shall be ineligible for any office, other than a judicial office,

during the term for which they shall have been elected or appointed did not preclude nonpartisan candidate

for office of district judge from also being a candidate for District Attorney on the same ballot. NRS

294.280; Const. art. 6, sec. 11.

6. Elections. Oath by candidate for office of district judge given in connection with the filing of declaration of

candidacy, that, if nominated as a candidate in primary election, candidate will accept such nomination and

not withdraw, precludes a partisan candidate, who is nominated as a candidate for such office by primary

election, from withdrawing his name from ballot, but ��

��76 Nev. 389, 391 (1960) Kelly v. Reed��

such oath, in the case of a nonpartisan candidate, refers to the then existing situation, and in the absence of

express legislative declaration that a nonpartisan candidate for office cannot have his name withdrawn,

such candidate may abandon his candidacy for district judge, when an unforeseen vacancy in another office

occurs, and withdraw his nomination for judicial office and accept nomination for newly vacated office.

NRS 294.280; Const. art. 6, sec. 11.

OPINION

Per Curiam:

This is an original proceeding in mandamus. The petition therefor seeks: (1) to compel

respondent Van Englestead, Chairman of the Clark County Democratic Central Committee,

to certify to Helen Scott Reed, clerk of said county, the name of petitioner Kelly as

Democratic nominee for the office of District Attorney of Clark County; (2) to compel Helen

Scott Reed to place the name of petitioner Kelly on the ballot as Democratic nominee; (3) to

compel Helen Scott Reed to reject the name of respondent John F. Mendoza as a candidate

for such office; and (4) to compel Helen Scott Reed to deny any request of respondent John F.

Mendoza to withdraw his nomination for the office of District Judge of Department 1 of the

Eighth Judicial District Court.

1. NRS 294.300 provides: “Vacancies occurring after the holding of any primary election

shall be filled by the central committee of the political party of the county * * *. Such action

shall be taken not less than 30 days prior to the November election.”

[Headnote 1]

The purpose of this statute is not to require action by a central committee in every case of a

vacancy occurring after the holding of every primary election. The statute is merely an

empowering act giving authority to the entity designated to name a party candidate in case a

vacancy arises after a primary election on account of the death or disqualification of a person

nominated, or on account of a vacancy in an office caused by death or resignation of the

incumbent. See Brown v. Georgetta, /%��#%%

��76 Nev. 389, 392 (1960) Kelly v. Reed��

70 Nev. 500, 275 P.2d 376. The central committee may not have any candidate suitable to it

to nominate, there may be no one of its party with the necessary qualifications (and certainly

it couldn't be required to nominate a person of another party affiliation); it may wish to take

no action believing that the candidate of the other party is the best person available; and

further, it may not be able to find a qualified person willing to accept the nomination.

NRS 34.160 specifies when a writ of mandamus may issue. It may issue “to compel the

performance of an act which the law especially enjoins as a duty resulting from an office,

trust or station.”

[Headnote 2]

The central committee has discretion in choosing its particular candidate. They cannot be

compelled to act in a particular way, i.e., to choose or name Kelly or any other person. Even if

the committee may have voted to nominate a particular person it would not be precluded from

rescinding, abrogating, or altering its earlier action. Browne v. Martin, La.App., 19 So.2d

421; Long v. Martin, 194 La. 797, 194 So. 896; Seay v. Latham, 143 Tex. 1, 182 S.W.2d 251,

155 A.L.R. 180; State ex rel. Reynolds v. Fielder, 110 W.Va. 240, 157 S.E. 597. This court

therefore will not compel Van Englestead as Chairman of said Democratic Central

Committee to certify to Helen Scott Reed the name of petitioner John E. Kelly as Democratic

nominee for the office of District Attorney of Clark County, Nevada. Such an act on the part

of the central committee is not “an act which the law especially enjoins as a duty resulting

from an office, trust or station.” We express no opinion whether a county central committee is

an “office, trust or station” within the meaning of NRS 34.160.

[Headnote 3]

2. County Clerk Helen Scott Reed is empowered to place on the ballot for the November

election the names of persons who have been duly nominated at the preceding primary

election or those nominated by county central committees in case of vacancies occurring after

the ��1�� +��?�

��76 Nev. 389, 393 (1960) Kelly v. Reed��

primary election. 1 Since she has never received any nomination of John E. Kelly from the

Democratic County Central Committee for the office of district attorney (and it appears from

the minutes of its meeting that no such nomination was made) she cannot be compelled to

place the name of John E. Kelly on the general election ballot as a candidate.

3. On July 18, 1960, respondent John F. Mendoza filed with respondent Helen Scott Reed

his declaration of candidacy for the office of District Judge of Department 1 of the Eighth

Judicial District Court in and for the county of Clark. Inasmuch as only two candidates filed

for said office of district judge, pursuant to NRS 294.280 both of said candidates became

nonpartisan nominees for said office. Petitioner maintains that a person cannot be a candidate

for the office of district judge and district attorney because the same are incompatible and that

if elected to both he would be ineligible to qualify for the office of district attorney under the

provisions of the Nev. Const. art. 6, sec. 11. 2

[Headnotes 4, 5]

The weight of authority, which we are inclined to follow, is that a statutory or

constitutional provision prohibiting one person from filling two offices at one time does not

preclude a candidate from seeking or accepting nomination for more than one office in the

absence of some statutory prohibition. State ex rel. Nev. v. Waechter, 332 Mo. 574, 58

S.W.2d 971; Misch v. Russell, 136 Ill. 22, 26 N.E. 528, 12 L.R.A. 125; Petition of Maxman's

Nomination, 49 Pa. Distr. & Co. R. 141. Such a statutory prohibition did exist in this state.

Stat. of Nev. 1891, Ch. 40, sec. 6; Rev. Laws of Nev. (1912), sec. 1838; Stat. of Nev. 1915,

Ch. 285, sec. 42. 3 Said statutory provision was repealed by implication by ��

____________________

1

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

2

Art. 6, sec. 11: “The justices of the supreme court and the district judges shall be ineligible to any office,

other than a judicial office, during the term for which they shall have been elected or appointed; and all elections

or appointments of any such judges by the people, legislature, or otherwise, during said period, to any office

other than judicial, shall be void.”

3

Stat. of Nev. 1915, Ch. 285, sec. 42: “* * * and no person shall accept a nomination to more than one

office.”

��76 Nev. 389, 394 (1960) Kelly v. Reed��

Stat. of Nev. 1917, Ch. 155, sec. 33, and has not appeared in any subsequent act.

We therefore conclude that the policy of this state since 1917 does not preclude a

candidate from accepting a nomination to more than one office.

4. The petition herein alleges that John F. Mendoza desires to withdraw his candidacy for

said office of district judge.

In filing his declaration of candidacy for the office of district judge, he stated under oath

“that if nominated as a candidate at said ensuing election I will accept such nomination and

not withdraw.”

[Headnote 6]

In State ex rel. Donnelley v. Hamilton, 33 Nev. 418, 111 P. 1026, the majority of the court

decided that a candidate who, in filing his declaration of candidacy, takes an oath not to

withdraw if nominated does not have the right to have his name withdrawn or omitted from

the general election ballot after he has been regularly nominated. It is to be noted that the rule

in this case pertains to a nominee of a political party. In the present proceeding, respondent

Mendoza is a nominee for a nonpartisan office. The reasons prohibiting a nominee for a

partisan office from withdrawing after he has been nominated as set forth in the case of State

ex rel. Thatcher v. Brodigan, 37 Nev. 458, 142 P. 520, do not necessarily apply in the case of

nonpartisan nominees.

As stated in the Hamilton case [33 Nev. 418, 426, 111 P. 1029] “The scope of the new

primary act indicates that the Legislature intended to make a radical change in the methods by

which nominees for public office are to be placed on the general election ballot. Instead of

being selected by a comparatively few individuals, comprising a convention or committee,

they are now to be chosen by a majority of the votes of their party, cast in the booth, free from

any undue influence. Riter v. Douglass, 109 Pac. 444. Different provisions of the act

strengthen the inference that when nominees are so chosen they are to remain upon the ticket

in compliance with their oath not to withdraw, and that it was not the intention of the

Legislature to have them break �� '

��76 Nev. 389, 395 (1960) Kelly v. Reed��

this obligation by withdrawing and thereby allowing a committee to appoint nominees

different from the ones selected by a majority of the votes of the party.”

In State ex rel. Thatcher v. Brodigan, supra, we stated that this court had held in State ex

rel. Donnelley v. Hamilton, supra, that whether a candidate nominated at the primary election

may have his name omitted from the general election ballots is a matter of policy for the

legislature and where the legislature forbids the withdrawal of candidates nominated at the

primary, the court cannot allow candidates to withdraw even for deserving reasons.

There is no express legislative declaration that a nominee for a nonpartisan office cannot

have his name withdrawn as such nominee. As stated by Justice Norcross in his dissenting

opinion in the case of State ex rel. Donnelley v. Hamilton, supra, in referring to the law of

this state prior to the adoption of the primary election law: “There has never been in the laws

of this state any restriction whatever upon the right, either of a candidate for a public office or

for an officer, to withdraw from such nomination or resign from such office whenever he saw

fit to do so.” We are unwilling to extend the doctrine of the Hamilton case so as to preclude a

nonpartisan nominee from withdrawing his nomination after the primary election if he so

desires. In the present case, at the time respondent Mendoza filed his declaration of candidacy

and executed the oath there did not then exist a vacancy in the office of district attorney and

when that vacancy occurred after the primary election we see no legislative policy which

would preclude him from seeking and accepting a party nomination to the office of district

attorney. We hold that the oath which a nonpartisan candidate takes when filing his

declaration of candidacy refers to the then existing situation and when an unforeseen vacancy

in another office occurs (as here upon the resignation of George Foley whose term had more

than two years to run) a nominee for a nonpartisan office would be free to withdraw his

nomination therefor and accept nomination for the newly vacated office.

��76 Nev. 389, 396 (1960) Kelly v. Reed��

As we see no useful purpose and possible confusion and injustice to the voters in having

the name of respondent Mendoza remain on the general election ballot as a candidate for

district judge, if it is his intention to abandon such candidacy, and if he requests that his name

be withdrawn as a nominee for the office of district judge, the respondent county clerk should

permit such withdrawal.

The petition for the alternative writ is denied, and the proceedings dismissed.

____________

��76 Nev. 396, 396 (1960) Chavez v. Mendoza��

In the Matter of the Estate of VICTORIA ROSALEZ MENDOZA, Also Known as

VICTORIA BAEZ, Deceased.

MARY CHAVEZ and JOHN F. MENDOZA, Proponents of the Will of Victoria Rosalez

Mendoza, Also Known as Victoria Baez, Deceased, Appellants, v. LUCY MENDOZA,

ESTEFANA CHAVEZ, AMELIA SALDANA and CARLOTA GALINDO, Contestants,

Respondents.

No. 4292

October 12, 1960 356 P.2d 13


Department No. 2.

Will contest. The trial court denied probate, and proponents appealed. The Supreme Court,

Badt, J., held that evidence supported finding that testatrix did not understand and know

contents of will.

Affirmed.

John P. Foley, of Las Vegas, for Appellants.

Robert E. Jones and Carl J. Christensen, of Las Vegas, for Respondents.


1. Wills. Evidence in will contest supported finding that will was not entitled to probate because of testatrix's lack

of understanding and knowledge of its contents.

2. Wills. It is essential to the validity of a will that testator know and understand the contents thereof.

OPINION


The court below denied probate of the will of Victoria Rosalez Mendoza, and the

proponents of the will have appealed. Mary Chavez, one of the proponents, is a surviving

daughter, and John F. Mendoza, the other proponent, is the son of a deceased child. These

two are the sole beneficiaries of the will and are named as executors. The four respondents,

who successfully opposed the probate of the will, are surviving daughters of the testatrix.

The will was contested on the ground that it is not the last will and testament of the

deceased, that it was not executed and attested as a will in compliance with the laws of the

State of Nevada, and that undue influence was exercised upon the decedent. The court found

“that decedent was totally illiterate and could not read or write in any language and that the

only language which the decedent could speak was Spanish; that said will, typewritten in

English, was prepared by William Hatton, an attorney at law, from information supplied to

him principally by the proponent Mary Chavez”; that the will was not attested and witnessed

as required by law; that the protestants are children of the deceased; that they were not

provided for in the will but entirely omitted therefrom; and that it does not appear that such

omission was intentional. The trial court's conclusions were that the purported will “was not

attested, declared or published in the manner prescribed by law and is not entitled to probate,”

and that the omission of the disinherited children was not intentional. It adjudged that the will

be denied probate.


Appellants specify as error the holding of the court that the will was not attested, declared

or published in the manner prescribed by law; that the holding that the will was not entitled to

probate is not supported by any substantial evidence; that in holding that respondents were

pretermitted heirs the court applied the wrong statute; that the holding that the omission of

the testatrix to provide for respondents was not intentional is not supported by substantial

evidence.

[Headnote 1]

A large part of appellants' briefs and oral argument is devoted to the contention that,

contrary to the court's finding, the will was properly executed and attested. Another

considerable portion of appellants' briefs and oral argument devotes itself to the court's

asserted error in applying to the issue of whether appellants were pretermitted heirs the statute

in effect at the time of the execution of the will and at the time of the death of the testatrix,

instead of the statute existing at the time of the contest. We find it unnecessary to discuss

these assignments, as we have concluded that irrespective of these assignments there was

substantial evidence to support the court's finding and conclusion that the will was not

entitled to probate because of the lack of understanding and knowledge of its contents by the

testatrix.

The learned trial judge, both in his decision on the submission of the contest and on his

denial of motion for new trial, referred at length to the evidence adduced. On the occasion in

which the will was signed and witnessed there were present Mrs. Mendoza (the testatrix), Mr.

Hatton (her attorney), and Mary Chavez, her daughter (one of the proponents of the will and

one of the two beneficiaries named therein). The two women who signed as attesting

witnesses were present at the time of the attestation. Mary Chavez testified concerning Mr.

Hatton's conversation with the testatrix in Spanish: “He always tried to talk to her kind of

broken like, kind of in a Spanish, a few words he would say to her. Q. Was the conversation

between your mother and Mr. Hatton in Spanish? A. No. He kind of talked ,��,��,��


kind of broken like, a few words in Spanish. * * * Q. Did he have any conversation with her

in Spanish? A. No, not exactly. I told him what she wanted. Q. You told Mr. Hatton what

your mother wanted in her will? A. (Witness nods affirmatively.) * * * Q. So the

conversations between you and Mr. Hatton were all in English? A. Yes.” As to the

conversations between Mr. Hatton and the testatrix—Mary Chavez described them: “* * * He

just says a few words in Spanish.” The court in characterizing the situation said: “Mary

Chavez was, no doubt, the only person in the room at the time of the drafting of the will and

the execution of the will who knew all of the facets in connection with her mother's thinking,

and the translation of that thinking to the printed document representing the last will and

testament of her mother.” Mrs. Mendoza was unable to speak or read English and she was

unable to read or write Spanish. Her signature to the will was by making her mark.

Much of the language used by the court in connection with his conclusion that the

contestants were pretermitted heirs applied with like force to his conclusion that Mrs.

Mendoza did not know the contents of the will she was signing, and that the will as drawn did

not reflect how she wanted to dispose of her estate. The will was in the following language:

“I, Victoria Rosalez Mendoza, being of sound mind and memory and not acting under any

duress, thought or undue influence, make this Last Will and Testament.

“I am at this date married to Pedro C. Mendoza. I leave him one dollar ($1.00) if he is still

my husband at the date of my death. If we are divorced before I did then I leave him nothing.

“All of the rest of my property, real and personal, of whatsoever nature and wheresoever

located, I leave to Mary Chavez and John F. Mendoza, my children, equally, share and share

alike.

“I hereby appoint Mary Chavez to be Executrix of this my Last Will and Testament with

full power to sell, lease, mortgage, convey or dispose of all or any part of my estate, to give

effect to this my Last Will and Testament.


“Hereunto I have set my hand and seal this 7th day of November, 1946, at Las Vegas,

Nevada.

“Victoria Rosalez Mendoza

“(Her) x (Seal)”

This was followed by the signatures and the usual attestation clause of the witnesses.

The court stated in its decision denying new trial:

“Counsel for the Contestants point out that the proposition was carefully noted in the Will

on the method used to disinherit Pedro Mendoza, and argue that, by the same token, the

Testator should have disinherited the Contestants. The argument has great weight, but the

only testimony on that point came from Mr. Hatton, himself, who prepared the Will. Mr.

Hatton testified substantially as follows: That there were conversations regarding her husband

and all her children. Mr. Hatton told her she should do the same thing with her children as she

did with Pedro. The response was that the Testator did not want to mention the other children,

as she would want them to respect her Will. Now, in contrast to this testimony, Mary Chavez

testified in substance that her mother always ‘took one of us' (children) with her. She was

bashful; she could speak some English; that she did not specifically recall Mr. Hatton

discussing the Will with her mother. It would seem that the making of such an important

document under the existing circumstances and especially in view of Mary's testimony that

Hatton spoke very little Spanish that she would have remembered any discussion that Mr.

Hatton said he had with the Testator regarding her children. At very best, taking the testimony

as a whole, Mrs. Mendoza was very close to her family, and all of the children testified

without objection that their mother had discussed her properties with them and at no time

ever indicated that any of them were not to share in her estate. One of the daughters, Lucille

[Lucy], was a backward child. Her mother always showed great concern for her to such an

extent that from the testimony of Mary Chavez and John Mendoza it would seem that they

had an understanding with their mother that there may have been some trust decided upon for

the benefit of Lucy. Mr. John Mendoza in his testimony twice �� >�� ,��P��C��0�'


referred to it, that his aunt Lucy was to be taken care of ‘by Mary and me'.”

Mr. John Mendoza's testimony “that his aunt Lucy was to be taken care of ‘by Mary and

me'” was of particular significance to the trial court. It indicated a desire to provide something

in the nature of a trust to take care of this retarded child. Yet the will made no provision nor

any reference of any kind to indicate this desire of the testatrix. The court was also impressed

by the fact that the disinherited children occupied a much stronger and more significant

relationship than characterized by the timeworn phrase as being “the natural objects of her

bounty.” They were in many ways just as close to her as the child and grandchild named as

the sole beneficiaries, and even the proponents of the will recognized her concern for the

retarded child.

The record contains much testimony concerning the relations existing between the testatrix

and all her children, a close-knit group, all helping the mother in various ways, attending her

both at the hospital and in her home participating in conferences concerning Lucy, the latter's

two children, and the question of her marriage, the matter of placing a mortgage for an

improvement loan on part of the property, conversations among them all after the funeral

concerning setting up a trust for Lucy, and many other details.

With reference to Mr. Hatton's testimony that he read the will to the testatrix in English

and explained it “paragraph by paragraph, sentence by sentence, in Spanish, and one little

piece after another,” we may note that no correction was made in the sentence, “If we are

divorced before I did then I leave him nothing.” The word obviously intended was “die” or

“died.” Nor was a correction made in the devise of all the testatrix's property “to Mary

Chavez and John F. Mendoza, my children * * *.” Mary was her child but John was her

grandchild. No correction was made in the introductory statement that the testatrix was “not

acting under any duress, thought or undue influence * * *.”

The question is not to what extent the reported testimony may influence this court. It is

rather as to the extent to which the trial court was entitled to rely ��C��6�� C��)��$��


upon it. Mr. Hatton was advised by Mary Chavez of the desires of the testatrix. This grew out

of the conversations between Mary Chavez and Mr. Hatton, had in English, which Mrs.

Mendoza could not understand. The court heard Mr. Hatton's testimony of his explaining to

Mrs. Mendoza in Spanish what the will as drawn by him provided. Yet he spoke very little

Spanish—only a few words. This was Mary Chavez's conclusion despite Mr. Hatton's

statement that he spoke Spanish. The trial court was entitled to question his testimony that he

first explained to Mrs. Mendoza that if she wanted to disinherit the four children not

mentioned in the will, she should actually say so in like manner as she did in disinheriting her

husband. Mary Chavez did not corroborate this.

[Headnote 2]

It needs no citation of authority to support the universally recognized rule that it is

essential to the validity of a will that the testator know and understand the contents thereof.

As seen from the recitals of the learned trial judge in his written decision denying probate and

in his written decision denying the motion for new trial, and as further seen from our

references to the record, there was substantial evidence to support his conclusion: “Now,

from the testimony the court does not believe that Mrs. Mendoza at the time of the making of

her will had a full and complete understanding of it”; and the court's further statement: “The

court concludes that from the testimony taken * * * the overwhelming evidence to the court is

that Mrs. Mendoza did not know the exact contents of her will. * * *”

Affirmed.


____________

��76 Nev. 403, 403 (1960) Carr v. District Court��

GEORGE A. CARR, Petitioner, v. DEPARTMENT NO. 1, SECOND JUDICIAL DISTRICT

COURT OF THE STATE OF NEVADA, in and for the COUNTY OF WASHOE,

HONORABLE GRANT L. BOWEN, Judge Thereof, and the WASHOE COUNTY GRAND

JURY, Respondents.

No. 4337

October 12, 1960 356 P.2d 16

Original proceeding for writ of prohibition against Department No. 1, Second Judicial

District Court of the State of Nevada, in and for the County of Washoe, Grant L. Bowen, J.,

and the Washoe County Grand Jury, to prohibit the proceedings in a contempt matter. The

Supreme Court, Pike, J., held that where grand jury, conducting investigation purportedly into

irregularities of municipal police department and asserted willful and corrupt misconduct of

public officers subpoenaed city councilman who, after testifying that he was engaged in

public relations and advertising business, was asked to state the names of his clients, and it

appeared that answers sought might be pertinent to inquiry, and as objection to answering

question was based solely upon assertion of business relationship not recognized by law as

being confidential or privileged, he was properly to be required to answer question.

Writ denied.

Grubic, Drendel and Bradley, of Reno; Streeter and Sala, of Reno, for Petitioner.

William J. Raggio, District Attorney; Drake DeLanoy and Eric L. Richards, Deputy

District Attorneys, Washoe County, for Respondents.

1. Witnesses. Generally a witness may not refuse to answer a proper question on the ground that he may thereby suffer

injury in his business.

2. Witnesses. The law does not distinguish between the withholding of documents relating to proof of facts and the

refusal to give oral matters within a witness' knowledge and the evidence must be produced in either case

unless production is excused by some special privilege. NRS 48.040, 48.080.


3. Grand Jury. As one subpoenaed by grand jury was witness and not a party, he was not in position to contend that

question which was asked him was not relevant to inquiry.

4. Witnesses. Where grand jury, conducting investigation purportedly into irregularities of municipal police department

and asserted willful and corrupt misconduct of public officers subpoenaed city councilman who after

testifying that he was engaged in public relations and advertising business, was asked to but refused to state

the names of his clients, and it appeared that answers sought might be pertinent to inquiry and, as objection

to answering question was based solely upon assertion of business relationship not recognized by law as

being confidential or privileged, he was properly to be required to answer. NRS 48.040, 48.080,

172.300, subd. 1 (c).

OPINION


Petitioner George A. Carr seeks to have made permanent an alternative writ of prohibition

issued by this court.

The Washoe County grand jury subpoenaed petitioner, a city councilman of the city of

Reno, to appear before it as a witness. The subpoena to Carr was signed by one H. Sewell as

assistant grand jury foreman. Carr appeared before the jury in response to such subpoena and

was sworn to testify as a witness. After testifying that he was engaged in the public relations

and advertising business, Carr refused to answer certain questions requiring him to state the

names of his clients. In so refusing Carr expressly stated that his refusal was not based upon

the ground that his answers might tend to incriminate him. He stated as the basis of his

refusal to answer that certain of his work in public relations was of a confidential nature and

that he was apprehensive that should he disclose the requested information before the grand

jury such information might well thereafter become public, to the detriment of Carr's business

and income.

Following Carr's refusal to disclose the names of his clients, said Sewell, as acting

foreman of the grand jury, filed his petition and supporting affidavit with the ��,�� ,��)�� )��

��


clerk of the lower court, seeking an order directing Carr to show cause why Carr should not

be punished for contempt. Sewell's affidavit stated that affiant was the acting foreman and a

member of the grand jury which had been lawfully impaneled on a previous date, and that on

June 15, 1960 said grand jury “* * * was inquiring into irregularities of the Reno police

department and the willful and corrupt misconduct in office of public officers of every

description within the county, pursuant to NRS 172.300 1 (c).” 1 It further recited that on the

date referred to, Carr, after having been duly sworn to testify as a witness, refused to answer

certain questions of the nature hereinabove indicated, and that such refusal to answer impeded

the grand jury and constituted an unlawful and contemptuous act. Carr filed a motion to

dismiss the contempt petition above referred to and, after the court heard and denied the

motion, filed his affidavit and answer to the petition. Carr's affidavit stated his reason for

such refusal was that disclosure of the requested information would have jeopardized his

livelihood and embarrassed his clients. Further, he denied having been guilty of “any

irregularities in the Reno police department,” one of the areas of investigation referred to in

Sewell's affidavit, or having engaged in any willful or corrupt misconduct in office. He

denied that the questions which he had refused to answer were relevant to the subject matter

of the inquiry as stated in Sewell's affidavit.

At the hearing before the court on the criminal contempt matter, the transcript of Carr's

testimony given before the grand jury, including the questions asked him and his refusal to

answer them, was introduced in evidence, and Sewell testified as a witness on behalf of the

state. Sewell testified that, “* * * the grand jury was investigating alleged corruption in the

police department, and also the influences that might have been pressuring the police

department from the city �� '��

____________________

1

“172.300. Matters into which grand jury must and may inquire. 1. The grand jury must inquire into: * * * (c)

The willful and corrupt misconduct in office of public officers of every description within the county. * * *”


council or others”, and in his testimony referred to an interim report that had been submitted

by the grand jury to the court as a result of such investigation.

The trial court found that the question that had been asked Carr before the grand jury and

which Carr had refused to answer was relevant, material and proper, and entered its order that

Carr appear before the next session of the grand jury and answer the question which had been

propounded to him, namely, “Who are your clients connected with the public relations

business?”. The court dismissed the charge of criminal contempt against Carr, and the trial

court's remarks show its view of the proceedings before it as presenting for its determination

the issue of whether or not the particular question was relevant and proper and whether Carr

should be required to answer.

After the trial court entered its order that Carr appear before the grand jury and answer the

question referred to, Carr petitioned this court and obtained an order that an alternative writ

of prohibition issue. Such alternative writ, by its terms, directed the trial court and other

respondents herein, to refrain from any further proceedings in the contempt matter, pending

the further order of this court.

Petitioner asserts: (1) deficiency in Sewell's affidavit; (2) lack of authority on the part of

Sewell to swear petitioner as a witness; and (3) alleged impropriety of certain remarks made

by the district attorney pertaining to the charge of criminal contempt against petitioner. These

were all disposed of without prejudice to petitioner's rights when the trial court dismissed the

contempt charge, thus purging petitioner of any alleged contempt.

However, as petitioner has been ordered by the trial court to return before the grand jury

and answer the question stated in the court's order, the relevancy of such question to the grand

jury disputed by petitioner must be considered.

In Parus v. District Court, 42 Nev. 229, 239, 174 P. 706, 709, 4 A.L.R. 140, this court

stated, “The grand ��


jury, whatever its ancient functions may have been, has under modern law become an

institution endowed largely with inquisitorial powers. Not only does it have to do with

criminal investigations, but by statutory provision it may inquire into the affairs, conduct, and

regulation of public offices, boards and commissions. The public health and public welfare,

as well as the moral atmosphere of a community, are matters of proper inquiry for our modern

grand jury.”

In the instant case the grand jury was inquiring into irregularities of the Reno police

department, and the willful and corrupt misconduct in office of public officers within the

county, matters properly within the scope of its statutory authority. Basically we must

consider whether or not the questions asked the petitioner were relevant to the subject matter

of investigation there before the grand jury, and we conclude that they were.

[Headnotes 1, 2]

Petitioner's status before the grand jury was that of a witness who had been subpoenaed to

attend and give his testimony in connection with the investigation then in progress. The

reasons given by petitioner for not answering the questions did not disclose the existence of

any relationship, between him and the public relations or advertising clients of his business,

of the nature recognized in law as confidential and privileged. Some of such latter

relationships, so recognized as privileged by the statutes of this state, are those of husband

and wife and physician and patient. NRS 48.040, 48.080. However, the general rule is that a

witness may not refuse to answer a proper question on the ground that he may thereby suffer

injury in his business. 58 Am.Jur. 41, Witnesses, sec. 34, n. 10. In this regard the law does not

distinguish between the withholding of documents relating to the proof of facts and the

refusal to give oral answers to matters within a witness' knowledge. The evidence must be

produced in either case, unless such production is excused by some special privilege of the

nature hereinbefore indicated. 58 Am.Jur., 42, Witnesses, sec. 34, n. 11.


[Headnote 3]

As a witness, and not as a party, he was not in a position to contend that the question

which was asked him was not relevant to the inquiry. U.S. v. McGovern, 2 Cir., 60 F.2d 880.

In re Edge Ho Holding Corp., 256 N.Y. 374, 176 N.E. 537, 539, the court stated, “Very often

the baring of the information is not susceptible of intelligent estimates until it is placed in its

setting, a tile in the mosaic.” Likewise, in Blair v. U.S., 250 U.S. 273, 39 S.Ct. 468, 471, 63

L.Ed. 979, the following statement appears with reference to the general scope of

examination of a witness before the grand jury, “The witness is bound not only to attend, but

to tell what he knows in answer to questions framed for the purpose of bringing out the truth

of the matter under inquiry. He is not entitled to urge objections of incompetency and

irrelevancy, such as a party might raise, for this is no concern of his. * * * It is a grand

inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is

not to be limited narrowly by questions of propriety or forecasts of the probable result of the

investigation, or by doubts whether any particular individual will be found properly subject to

an accusation of crime.”

In re Greenleaf, 176 Misc. 566, 28 N.Y.S.2d 28, 32, pertained to a situation where a

person in public office and also in private business in the locality refused to testify, stating

that certain matters related to his own business. In that case the court said that there was no

evidence attacking the good faith of the grand jury in asking the questions which the witness

had refused to answer; that it appeared that the questions were pertinent to the inquiry, and

stated, “* * * If it appears that the answers to be elicited may be pertinent to the inquiry, the

court would not be justified in interfering.”

[Headnote 4]

In the instant situation, where the reason given by petitioner for not answering the question

was based solely upon the assertion of a business relationship not recognized by the law as

being confidential and privileged, and it appears that the answers sought to be ��


obtained may be pertinent to the inquiry, the witness should be required to answer. See the

discussion of this subject by Judge Learned Hand speaking for the Second Circuit Court of

Appeals in McMann v. Securities and Exchange Commission, 87 F.2d 377, 109 A.L.R. 1445.

The writ of prohibition is denied, and the alternative writ is vacated.


____________

��76 Nev. 409, 409 (1960) Barra v. Dumais��

In the Matter of the Parental Rights as to

NEIL M. DUMAIS, a Minor

GEORGE BARRA, Probation Officer in and for the County of Nye, State of Nevada,

Appellant, v. GEORGE DUMAIS and EMILIE DUMAIS, Respondents.

No. 4308

October 24, 1960 356 P.2d 124

Appeal from judgment of the Fifth Judicial District Court, Nye County; Peter Breen,

Judge.

Proceeding on probation officer's application for order terminating parental rights of

natural parents of two-year-old minor. The lower court entered order dismissing petition and

ordering minor child be restored to natural parents, and probation officer appealed. The

Supreme Court, Pike, J., held that there was substantial evidence tending to show such

rehabilitation of parents between date of separation from minor child and date of hearing as to

support order of dismissal.

Judgment affirmed.

William P. Beko, District Attorney, Nye County, for Appellant.

Diehl and Recanzone, of Fallon, for Respondents.


1. Infants. In proceeding on application by probation officer for order terminating parental rights of natural parents

of two-year-old minor on ground that parents and neglected and refused to provide properly for child and

that they were unfit parents, there was substantial evidence tending to show such rehabilitation on part of

parents between date of their separation from minor child and date of hearing over a year later as to support

order of dismissal. NRS 128.010 to 128.140.

2. Trial. In proceeding on application by probation officer to terminate parental rights of natural parents of

two-year-old minor, where witness testified, without objection, to having received a report from Oregon

probation officer and her cross examination elicited further testimony concerning report, there was no error

in overruling objection to testimony concerning report's contents on ground that it was hearsay or in

denying motion to strike for reason that neither objection nor motion was timely made, and hearsay

evidence having been received without objection that court was entitled to consider it.

OPINION


Petitioner Barra, as probation officer of Nye County, sought an order terminating the

parental rights of the natural parents of the above named minor, then about two years of age.

The petition filed May 28, 1959 alleged that both parents had neglected and refused to

provide properly for the child, and that they were unfit parents. The proceedings were brought

pursuant to the provisions of NRS 128.010-128.140. This is an appeal from an order

dismissing the petition and ordering that the minor child be restored to his natural parents.

At the hearings on the petition held on September 12, 1959 and February 4, 1960 a number

of witnesses, including petitioner and the district attorney of Nye County, testified concerning

the neglect of the child by the parents at Manhattan, in said county, during a period of not

more than two weeks in August and September 1958. The proof of neglect and failure to

provide properly and care for the child during that period is convincing.

The child at that time was an infant of less than one �� 11�


and a half years of age, and the youngest of five children, the eldest of whom was 11. During

that period the parents were seeking to take over the operation of a combination grocery store

and bar, and to clean the premises and pipe running water thereon, doing the work

themselves. The three-room deteriorated wooden structure served as business premises and

the residence of the family. The premises had only the most meager of furnishings. The entire

family slept in a single room, the parents on a box spring and mattress, and the five children

on a mattress resting on the floor.

In early September 1958, after the Dumais family had been in Manhattan for about two

weeks, their residence there was terminated under the following circumstances. Prior to

coming to Manhattan the parents had uttered and negotiated certain checks in connection with

their operation of a produce route in another part of the state, and had issued and negotiated

more checks in connection with the taking over and operation and purchasing of food and

other supplies for the grocery store and bar in Manhattan. When certain of these checks were

not honored upon presentation for payment, a civil suit followed and criminal proceedings

were commenced against each of the parents at Fallon, Churchill County, Nevada. The deputy

sheriff from Tonopah, the county seat of Nye County, arrived in Manhattan for the purpose of

effecting the arrest of the husband and wife upon the charges pending in Churchill County.

The warrant was served upon the husband, but the wife was found to be in an unconscious

condition apparently resulting from self-administered medication. Accordingly, the wife was

taken to the nearest hospital at Tonopah, with the husband accompanying her there. She was

subsequently transferred to the hospital at Fallon. After the parents had been placed on

probation on the charges against them, the four elder children rejoined their parents and have

been with them since. The parents and the four elder children lived in Fallon except for a

brief period of not more than three months when they lived near Gerlach, in northern Washoe

County, until they left Nevada and moved to Oregon in mid-December 1959.


They were residing in Oregon at the time of the said February 4 hearing.

There was no regular foster home available in Nye County. The child Neil remained with a

Doctor and Mrs. Brown of Nye County until May 1959. The minor was then placed with a

childless couple, Mr. and Mrs. Bruno Skanovsky, also of Nye County, where he continues to

reside. The Skanovskys have provided him with a good home and proper care.

Petitioner on this appeal designates two specifications of error as requiring reversal of the

trial court, (1) insufficiency of the evidence to sustain the judgment of dismissal and (2) the

admission of certain hearsay evidence.

(1) In addition to the witnesses whose testimony tended to show neglect and failure to

provide proper care on the part of the parents, both parents and a Mrs. June Quilici, state

welfare worker, testified personally before the court, and the Browns gave their testimony in

deposition form. Bruno Skanovsky also testified showing the growth, development, and

improvement in health of the child while living with Skanovskys. The majority of the

witnesses who testified to the conditions of neglect of the child, the child's paleness,

listlessness and poor physical condition, and to the father and mother of the minor being unfit

parents, were residents of Manhattan. They based their testimony upon their observations

made during the said two weeks' period.

There appears no substantial contradiction to the testimony that the living conditions at

Manhattan of the Dumais family, including the minor Neil, now about three and a half years

of age, were sordid and neglectful by even minimum standards.

However, the evidence shows that later the parents and four elder children had lived under

better conditions at Fallon. Mrs. Quilici testified that on the two occasions in the fall of 1959,

a year after the Dumaises had left Manhattan, when she visited such house, the living

conditions there were generally neat and acceptable, that the appearance and health of the

children were excellent, and the relationship between them and their parents was ��C�7�� C �


good. Mr. Dumais had a job, Mrs. Dumais part-time work, and at least one of the elder

children was attending school. The living conditions which she observed were far different

and better than the squalor, dirt and neglect which prevailed when the family was at

Manhattan. It is recognized that the conditions which the Manhattan residents observed,

served as a proper basis for the corrective action instituted by the county authorities and their

efforts to bring about proper care and living conditions for the minor. While the improved

living conditions at Fallon did not include the minor as a member of the household there, they

did tend to establish a rehabilitation of the parents and conduct on their part resulting in

improved living conditions for their children. Added to this was certain testimony given by

Mrs. Quilici, tending to show, somewhat prospectively it is true, the possibility of a

continuance of better living conditions and employment for Mr. Dumais, as hereinafter

discussed. The testimony of Mrs. Quilici in this latter regard referred to a report of that

general import which she had received from a probation officer in Oregon.

[Headnote 1]

The trial judge, after reviewing the evidence before it, and commenting upon the

significance of the finality of an order terminating parental rights and of separating the minor

not only from his natural parents, but from the other children in the family, stated his view

that the best interests of the child were of paramount consideration, that the evidence was

insufficient to justify the granting of the relief sought, and dismissed the petition. There was

in fact substantial evidence tending to show such a rehabilitation on the part of the parents

between the date of their separation from the minor children in September 1958 and the date

of the hearing on February 4, 1960 as to support the order of dismissal, and such order will

not be disturbed on this appeal.

[Headnote 2]

(2) The testimony given by the witness Mrs. June Quilici, based upon her investigation

made at the request �� @��


of the trial court, included her reference to the substance of a report she had received from a

probation officer in Oregon. That report stated, according to the witness' testimony, that

although the Oregon probation officer did not know the Dumaises he did know the relatives

with whom they were staying, that their living conditions were good, and that, as employment

possibilities in the area were excellent, the probation officer considered that Mr. Dumais

should be able to carry out the plans which the relatives had made for the Dumaises to stay

with them and have a lot and build a home on a portion of the premises owned by the

relatives. The testimony pertaining to the contents of the Oregon probation officer's report

was obviously hearsay. Prior to making any reference to the contents of the report, the witness

testified that she had received such report. No objection being interposed, she concluded her

direct testimony by reference to the report's substance. After cross examination of the witness

on matters not related to the hearsay testimony, but which elicited further testimony

concerning the report, counsel interposed an objection to the hearsay testimony. The court

overruled such objection as not timely and thereafter denied a motion to strike the testimony.

Under these circumstances we find no error on the part of the trial court in overruling

petitioner's objection to the testimony or denying petitioner's motion to strike the same as

hearsay, for the reason that neither the objection nor motion was timely made. The hearsay

evidence having been received without objection, the court was entitled to consider it. In Diaz

v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 56 L.Ed. 500, the court cited with approval

Sherwood v. Sissa, 5 Nev. 349, 355, where this court held, “If evidence secondary or hearsay

in its character be admitted without objection, no advantage can be taken of that fact

afterwards, and the jury may, indeed should, accept it as if it were admissible under the

strictest rules of evidence.” Duplantis v. Duplantis, 50 Nev. 234, 236, 255 P. 1014; Killian v.

Hubbard, 69 S.D. 289, 9 N.W.2d. 700, 146 A.L.R. 708.


Judgment affirmed.


____________

��76 Nev. 415, 415 (1960) Gaudin Motor Co. v. Wodarek��

GAUDIN MOTOR CO., INC., Appellant, v. LOTTIE

HAMPTON WODAREK, Respondent.

No. 4281

November 9, 1960 356 P.2d 638


Department No. 4.

Action by automobile dealer against prospective customer for damage to automobile in

accident occurring while defendant was driving automobile on demonstration trip. The trial

court rendered judgment for defendant, and plaintiff appealed. The Supreme Court,

McNamee, C. J., held that evidence sustained finding that damage to bailed automobile was

result of failure of air pressure in tire, or some cause not known to defendant other than her

negligence or fault.

Affirmed.


Deaner, Butler & Adamson, of Las Vegas, for Respondent.

1. Bailment. Where automobile is delivered to bailee in good condition and is returned in damaged state, law

presumes bailee's negligence or other fault to be the cause, and casts on bailee the burden of showing that

loss was due to other causes consistent with due care on part of bailee, and if bailee does not sustain such

burden, bailor becomes entitled as matter of law to judgment in his favor.

2. Bailment. In action for damage to bailed automobile, where owner of vehicle met its burden by evidence showing

that automobile ��


was delivered to bailee in good condition and was returned in damaged condition, burden of going forward

with evidence thereupon shifted to bailee.

3. Bailment.

In action by automobile dealer against prospective customer for damage to automobile in accident

occurring while customer was driving automobile on demonstration trip, evidence sustained finding that

damage to bailed automobile was result of failure of air pressure in tire, or some cause not known to

customer other than her negligence or fault.

4. Bailment. It is sufficient, in actions for loss of or damage to bailed property, for bailee, in order to escape liability,

to show to satisfaction of trier of facts that he was not negligent, or, if he was negligent in any respect, that

his negligence was not proximate cause of loss or damage, and bailee need not specifically establish exact

cause of loss, destruction or damage.

OPINION


The principal question presented on this appeal concerns the liability of a bailee for

damages or loss of an automobile, the subject of the bailment, under a bailment for the

benefit of both parties.

In this action, appellant, a car dealer, was the owner of an automobile which it delivered to

respondent, a prospective purchaser. In order to demonstrate the suitability of the automobile,

appellant authorized respondent to drive it from Las Vegas, Nevada, to Boulder City and

back. On the return trip appellant lost control of the vehicle, it left the road and turned over.

Except for its salvage value, the car was a total loss. Appellant sued respondent in tort for

damages caused by such loss.

Respondent's only explanation of her loss of control of the vehicle was her testimony that a

tire had suddenly gone flat. It was revealed after the accident that there was no blown-out tire,

and that all four tires were undamaged although the right front tire was flat. The officer who

investigated the accident testified that, in his opinion, based on the skid marks, the car was

going approximately 75 miles per hour at the time of the accident, and that 70 miles an hour

in that particular area ��


was a safe and not unusual speed. Respondent estimated her speed at between 60 and 65

miles per hour or a “little faster.”

From the foregoing, the trial court determined that there was no evidence that respondent

was negligent; that in testing the car she had the right to go 70 miles an hour or faster; that

defendant at the time of said accident was operating the automobile in a reasonable and

prudent manner; and that the accident resulted from no fault or negligence on the part of the

defendant.

[Headnote 1]

The court being the trier of the fact could properly come to this conclusion. Even if this be

true, appellant maintains that in a bailment of this nature where an automobile is delivered to

a bailee in good condition and is returned in a damaged state, the law presumes the bailee's

negligence or other fault to be the cause, and casts on the bailee the burden of showing that

the loss was due to other causes consistent with due care on the part of the bailee; that if the

bailee does not sustain such burden the bailor becomes entitled as a matter of law to a

judgment in his favor. This is the rule of the more modern decisions, and Nevada follows

such rule. Manhattan Fire & Marine Ins. Co. v. Grand Central Garage, 54 Nev. 147, 9 P.2d

682.

[Headnote 2]

In the present case the owner of the vehicle met its burden by evidence showing that the

car was delivered to the bailee in good condition and was returned in a damaged condition.

The burden of going forward with evidence thereupon shifted to the bailee. Bramlette v.

Titus, 70 Nev. 305, 267 P.2d 620. To overcome this burden, bailee introduced evidence

tending to show that the damage resulted from a tire going flat through no negligence on her

part. The bailor thereupon introduced evidence tending to show either that the tire went flat

due to her excessive speed or that she was unable to control the car after the tire went flat due

to her excessive speed. A factual question thus developed. Romney v. Covey Garage, 100

Utah 167, 111 P.2d 545.


[Headnotes 3,4]

The lower court was satisfied from the evidence that the damage to the automobile was the

result of a failure of the air pressure in one of the tires or some cause not known to respondent

other than the negligence or fault of the respondent, made its findings accordingly, and

awarded judgment in favor of respondent. This was proper. In Wyatt v. Baughman, 121 Utah

98, 239 P.2d 193, 195, the court held “that it is sufficient in actions for loss of or damage to

bailed property for the defendant bailee, in order to escape liability, to show to the satisfaction

of the trier of the fact that he was not negligent, or, if he was negligent in any respect, that his

negligence was not the proximate cause of the loss or damage, and that he need not

specifically establish the exact cause of the loss, destruction or damage.”

Affirmed.


____________

��76 Nev. 418, 418 (1960) Fredricks v. City of Las Vegas��

A. T. FREDRICKS, Appellant, v. THE CITY OF LAS

VEGAS, a Municipal Corporation, Respondent.

No. 4282

November 9, 1960 356 P.2d 639


Department No. 2.

Declaratory judgment action by assignee of all city's interest in certain lots against city to

determine rights of respective parties under contract providing terms and conditions under

which assignee could occupy and use such lots, and containing covenant that assignee would

let contract for erection of multiple-level parking structure (a) within 18 months from date of

contract, or (b) at such time as average turnover of seven automobiles per space day should

have been experienced, or (c) at ��


such time as contract for construction could be entered into with alternate party after giving

assignee prior refusal. The trial court found that the covenant provision was not ambiguous

but was in alternative, and that assignee had not complied therewith, and assignee appealed.

The Supreme Court, Badt, J., held that the word “or” as used between clauses (a) and (b)

would be interpreted in its ordinary and elementary sense, giving it its disjunctive meaning,

and assignee was required to comply with both clause (a) and clause (b).

Affirmed.


Calvin M. Cory and Sidney R. Whitmore, of Las Vegas, for Respondent.

1. Municipal Corporations. The word “or” as used between clauses (a) and (b) in contract provision that assignee of all city's interest

in certain lots would let contract for erection of multiple-level parking structure (a) within period of 18

months from date of contract, or (b) at such time as average turnover of seven automobiles per space day

should have been experienced for period of 30 consecutive days, would be interpreted in its ordinary and

elementary sense, giving it its disjunctive meaning, and assignee's tenure could be terminated for failure to

let contract within 18 months even if there should be no default in building structure after 30-day

demonstration of a 7-automobile turnover per space day.

2. Evidence. Where executed written contract was clear and unambiguous on its face, there was no room for

introduction of extraneous evidence to explain its meaning.

3. Declaratory Judgment. In action by assignee of all city's interest in certain lots against city, to determine rights of respective

parties under contract providing terms and conditions under which assignee could occupy and use the lots,

evidence supported finding that preliminary negotiations and/or conversations between assignee and certain

city employees were not made part of the agreement and that such negotiations or conversations were never

intended by either party to be made part of the agreement.

4. Declaratory Judgment. In declaratory judgment action to determine rights of city and its assignee under contract providing terms

and conditions under which assignee could occupy and use lots, finding that �� 0 ��


preliminary negotiations and conversations between assignee and certain city employees were not made

part of agreement and were not intended to be reinforced by judgment entered and by portion of court's

written opinion to effect that telephone conversation between assignee and city manager did not alter or

change the contract furnished, necessarily implied finding that city was not estopped from enforcing

contract as executed.

OPINION


Fredricks sued the city of Las Vegas for a declaratory judgment to determine the rights of

the respective parties under a contract providing the terms and conditions under which

Fredricks could occupy and use certain lots in the city. The lots were at the time held by the

city under a 20-year lease whose terms are not in issue. The contract in question assigned to

Fredricks all the city's right, title, and interest in the property and in the lease; and Fredricks

in turn assumed the city's obligation to pay the $500 monthly rental therein reserved. 1 He

further covenanted (and the meaning of such covenant was the issue before the trial court)

that he would:

“4. Let a contract for the erection of a multiple-level parking structure on the above

described real property:

(a) within a period of 18 months from the date hereof; or

(b) at such time as an average turnover of seven automobiles per space day shall have been

experienced for a period of 30 consecutive days; or

(c) at such time as a contract for [such] construction” could be entered into with an

alternate party after giving appellant prior refusal.

[Headnote 1]

Appellant concedes that if within the period of 18 months the city found an alternate

assignee to construct ��<��,�� 4��, �� 4��, 0��

____________________

1

The contract was between the city and General Parking, Inc., a Nevada corporation of which Fredricks was

the president. The corporation assigned it to Fredricks. Such assignment presents no issue in this case.


the multi-level parking structure, after prior refusal by Fredricks to construct same, Fredricks'

rights under the contract would terminate. In other words, appellant concedes that the third

alternative preceded by the word “or” is an accelerating provision. He insists, however, that

clauses (a) and (b) are not alternatives; that the word “or” between these clauses should be

read in its conjunctive rather than its disjunctive sense; that he would have to fail in his

performance under both clause (a) and clause (b) before the city would have the right under

the terms of the contract to terminate his possession; that clause (a) gave him a minimum

term of possession of 18 months; that it was only after termination of the 18 months' period

under clause (a) that the provisions of clause (b) would apply; that the true meaning of clause

(b) can be found only by inserting the word “later” so as to make the clause read “(b) at such

later time,” etc.

The trial court found “that said Paragraph IV is not ambiguous and is in the alternative and

that the plaintiff did not comply with the said Paragraph IV.” Appellant's contention that such

finding is error is without merit. Conceding that the word “or” may be used, interpreted, or

construed in a conjunctive rather than a disjunctive sense to prevent an absurd or

unreasonable result, or where the context requires such construction, or such construction is

necessitated by some impelling reason in the context, there is no reason here for interpreting

it other than in its ordinary and elementary sense and giving it its disjunctive meaning.

Despite the fact that plaintiff's complaint claimed only that he had complied with the

conditions of his contract and that after his 18 months' term his tenure could not be

terminated unless in addition there was a default in building a multi-level parking structure

after a 30-day demonstration of a seven-car turnover per space day, he sought to prove at the

trial that the word “later” was inadvertently omitted from paragraph (b) (so as to read “at such

later time”), that there was a mutual mistake in omitting it, that the omission was the � �� 4��, 0��1 �� <��,��


result of clerical error, that the clause as written did not express the intention of the parties,

and that the city manager had represented that the city would never contend that, under the

lease as drawn, Fredricks' occupancy would terminate at the end of 18 months if he had not

let a contract for the construction of the multi-level parking structure within that time. The

complaint did not allege mutual mistake, did not allege clerical error, did not allege that the

executed contract failed to express the intention of the parties, did not allege fraudulent

representations or other matters in estoppel, and did not seek a reformation of the contract.

A great deal of evidence was introduced by plaintiff, over objection, concerning the

negotiations that led up to the execution of the final contract, and in explanation of why the

plaintiff signed the contract in its final form despite the fact that it did not contain a provision

upon which he had insisted. The learned trial judge expressed considerable doubt that the

testimony or the preliminary unexecuted drafts of the contract were admissible but decided to

admit them for his consideration. While on several of these occasions he obtained from both

parties their approval of the court's conclusion as to the issue presented for its determination,

namely, its interpretation of the meaning of the contract in the final form as executed by the

parties, plaintiff, over objection, introduced evidence in support of his additional contentions

above noted.

[Headnotes 2, 3]

Since the executed written contract was clear and unambiguous on its face, there was no

room for the introduction of extraneous evidence to explain its meaning. Woods v. Bromley,

69 Nev. 96, 241 P.2d 1103; Reno Club, Inc. v. Young Investment Co., 64 Nev. 312, 182 P.2d

1011, 173 A.L.R. 1145; Talbot v. Nevada Fire Insurance Co., 52 Nev. 145, 283 P. 404, 286 P.

1118. This being so, it is unnecessary for us to discuss the evidence supporting appellant's

contentions concerning the intention of the parties. However, assuming that the contentions

of appellant as hereinabove noted had been �� ,�� :8��>��C��)��5��/3��"%3��"#"�8��!#!-�9��(�� )��)��=��


properly pleaded, or had been tried with the consent of the parties, thus making such issues

proper for the consideration of the trial court and for the consideration of this court on appeal

(Poe v. La Metropolitana Compania Nacional, S.A., 76 Nev. 306, 353 P.2d 454; United

Tungsten Corporation v. Corporation Service, Inc., 76 Nev. 329, 353 P.2d 452), there was

substantial evidence to support the court's finding “that the preliminary negotiations [which

included submission and discussion of sundry preliminary drafts of the proposed contract]

and/or conversations between the plaintiff and certain employees of the city [on which

Fredricks relies to establish an estoppel] were not made a part of the * * * agreement between

the parties, and that said negotiations or conversations were never intended [by either party]

to be made a part of said agreement.”

[Headnote 4]

We feel that the foregoing finding, reinforced by the language used in the court's written

opinion to the effect that the telephone conversation between Fredricks and the city manager

did not alter or change the contract, and as reinforced by the judgment entered, furnishes a

necessarily implied finding negativing the contention that the city was estopped from

enforcing the contract as executed. Krick v. Krick, 76 Nev. 52, 348 P.2d 752.

Appeal dismissed.


____________

��76 Nev. 424, 424 (1960) Culinary Workers v. Haugen��

CULINARY AND HOTEL SERVICE WORKERS UNION, Local No. 226, and AL

BRAMLET, Secretary of Said Defendant Organization, Appellants, v. EDWARD HAUGEN,

Jr., Respondent.

No. 4360

November 18, 1960 357 P.2d 113

Appeal from Eighth Judicial District Court, Clark County; George E. Marshall, Judge,

Department No. 4.

Action where in the lower court rendered the judgment challenged on appeal. On

respondent's motion to dismiss the appeal, the Supreme Court, Badt, J., held that where

written notice of entry of judgment was served and filed on May 5 and on May 12 parties

signed stipulation extending time to move for new trial to June 6, court could not, by ex parte

order entered on June 2, extend time to move for new trial until June 27, even if extension by

stipulation was valid.

(Petition for rehearing denied December 23, 1960.)

W. Albert Stewart, Jr., of Las Vegas, and Morris Sankary, of San Diego, California, for

Appellants.

Franklin Rittenhouse, of Las Vegas, and McNamee & McNamee, of Las Vegas, for

Respondent.

1. New Trial. Where written notice of entry of judgment was served and filed on May 5 and on May 12 parties signed

stipulation extending time to move for new trial to June 6, court could not, by ex parte order entered on

June 2, extend time to move for new trial until June 27, even if extension by stipulation was valid. NRCP

6(b), 59(b), 73(a).

2. Courts. Judgment.

District court rule was entitled to encouragement of Supreme Court; but correction of notice of entry of

judgment, by lining out “April” with typewriter and inserting “May”, did not destroy effectiveness of

notice, even if such correction constituted an “interlineation” in violation of district court rule. District

Court Rules 2, subd. 6; 19; Supreme Court Rule 2, subd. 8; NRCP 6(b).

3. Appeal and Error. New Trial.

Rule providing that court may not extend time for filing motion for new trial or for filing notice of appeal

is mandatory ��


rather than permissive. District Court Rules 2, subd. 6; 19; Supreme Court Rule 2, subd. 8; NRCP 6(b).

4. Appeal and Error. In absence of compliance with jurisdictional requirement for filing notice of appeal within time limited by

rules, court cannot hear appeal on merits. NRCP 6(b), 59(b), 73(a).

5. Judgment. Motion for relief from judgment, on ground of mistake, inadvertence, surprise, excusable neglect,

misconduct and on ground that judgment was void, was largely within court's discretion. NRCP 60.

OPINION

On Motion to Dismiss Appeal

Appeal Dismissed


Respondent has moved to dismiss the appeal of appellants upon the grounds (1) that the

notice of appeal was not filed within the time prescribed by NRCP; (2) that the record of

appeal was not filed or docketed in time; and (3) that the opening brief of appellants was not

filed in time.

As we are of the opinion that the motion to dismiss must be granted upon the first ground,

the untimely filing of the notice of appeal, the second and third grounds of the motion need

not be considered.

Written notice of the entry of judgment was served and filed May 5, 1960. Notice of

appeal was filed July 22, 1960. On May 12, (1960) the parties signed a stipulation extending

the time to move for new trial to June 6, 1960. Such stipulation was approved by the court.

On June 2, 1960 the trial court entered an ex parte order extending time to move for new trial

to June 27, 1960, and on the last-named date the motion for new trial was filed. On July 19,

1960 plaintiff moved the district court to strike the defendants' motion for new trial. No order

has been made by the district court granting or denying the motion for new trial or granting or

denying the motion to strike the motion for new trial.

The rules involved in the present motion to dismiss �� #2:�;��/":�;��3:�;��)8�


the appeal are Rules 59(b), 73(a), and 6(b), NRCP. Rules 59(b) and 73(a) are respectively as

follows:

“Rule 59(b) Time for Motion. A motion for a new trial shall be served not later than 10

days after service of written notice of the entry of the judgment.”

“Rule 73 (a) When and How Taken. When an appeal is permitted the time within which an

appeal may be taken shall be 30 days from service of written notice of entry of the judgment

appealed from. The running of the time for appeal is terminated by a timely motion made

pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this

subdivision commences to run and is to be computed from service of written notice of the

entry of any of the following orders made upon a timely motion under such rules: * * *

granting or denying a motion for a new trial under Rule 59. * * *”

Rule 6(b), concerning the enlargement of time, reads as follows—the italicized clause

appearing only in the Nevada rule but not in the federal rule:

“Rule 6(b) Enlargement. When by these rules or by a notice given thereunder or by order

of court an act is required or allowed to be done at or within a specified time, the parties, by

written stipulation of counsel filed in the action, may enlarge the period, or the court for

cause shown may at any time in its discretion (1) with or without motion or notice order the

period enlarged if request therefor is made before the expiration of the period originally

prescribed or as extended by a previous order or (2) upon motion made after the expiration of

the specified period permit the act to be done where the failure to act was the result of

excusable neglect; but it may not extend the time for taking any action under Rules 25, 50(b),

52(b), 59(b), (d) and (e), 60(b), and 73(a) and (g), except to the extent and under the

conditions stated in them.” In all other respects the Nevada Rule 6(b) is identical with the

Federal Rule 6(b).

Our Rule 6(b), in identical wording with Federal Rule 6(b), limits the right of the court to

enlarge the time for filing motion for new trial or notice of appeal in the following words: “*

* * but it may not extend the ��,�� #2:�;�F��G�A�A�A��/":�;�F��G�'


time for taking any action under rules 59(b) [motion for new trial] * * * and 73(a) [notice of

appeal].”

If the appellants' motion for new trial was timely filed, then, in the absence of any notice

given of the order of court denying same, their appeal was timely filed. If the motion for new

trial was not timely filed, it did not toll the running of time within which to file the notice of

appeal from the judgment. So much is clear. Our only concern, then, is whether the motion

for new trial was timely filed.

The federal courts have on numerous occasions held that under the federal rule the court

was without jurisdiction to extend the time for filing motion for new trial. Raughley v.

Pennsylvania Railroad Company, 3 Cir., 230 F.2d 387; John E. Smith's Sons Co. v. Lattimer

Foundry & Mach. Co., D.C., 19 F.R.D. 379; Safeway Stores v. Coe, 78 U.S.App. D.C. 19,

136 F.2d 771, 148 A.L.R. 782; 1 Barron and Holtzoff, Federal Practice & Procedure, § 214,

p. 785.

[Headnote 1]

Appellants, however, seek to distinguish these cases by reason of the difference between

the federal rule and the Nevada rule and call attention to the fact that while under the federal

rule authority is given only to the court and not to the parties, by stipulation, to enlarge time

for the performance of necessary acts under the rules, under the Nevada statute the parties

may likewise by stipulation extend time. Appellants call attention further to the fact that in

the present instance the parties did by stipulation extend the time, and that the prohibition

against extension of time for filing motion for new trial and for filing notice of appeal applies

only to the court and not to the parties. This, however, under the record, cannot avail

appellants. Since notice of judgment was served May 5, 1960 and since the parties stipulated

for extension of time for filing motion for new trial to June 6, 1960 (and in this opinion we do

not find it necessary to pass upon the validity of such extension by stipulation), the extension

granted (or attempted to be granted) by stipulation expired June 3��123%�


6, 1960. The filing of the motion for new trial on June 27, 1960 can find justification only

under the ex parte order of the court filed June 2, 1960 and not under the stipulation of the

parties.

Accordingly, it is clear that there was not a timely motion for new trial and consequently

no termination of the running of the time for appeal, and respondent's motion to dismiss the

appeal must be granted.

[Headnote 2]

The notice of entry of judgment, the receipt of the copy of such notice, the findings of fact

and the conclusions of law, and the judgment all bore date May 5, 1960. In all of these

instruments the month, April, had been corrected by lining the same out with the typewriter

and inserting the word “May.” Appellants contend that such correction, thus made without

the clerk's notation of the change made before filing, is contrary to the requirements of Rule

19 of the Rules of the District Court. While compliance with the district court rule (which

also contains a requirement that all pleadings and documents intended for the district court

files shall be on paper known as “legal cap” of good quality) is entitled to the encouragement

of this court, we are unwilling to say that the violation thereof (if the correction described

constituted an “interlineation” in violation of the rule) destroyed the effectiveness of the

notice.

[Headnote 3]

Appellants further contend that Rule 6(b) to the effect that the court “may not” extend the

time for filing motion for new trial or for filing notice of appeal is permissive and not

mandatory and that the district court was therefore authorized in its discretion to extend the

time. Appellants refer to Rule 2(8) of the Supreme Court and 2(6) of the Rules of the District

Court, both of which define “shall” as mandatory and “may” as permissive. It does not

logically follow, however, that the requirement that the court “may not” extend the time is

anything but prohibitive. John E. Smith's Sons Co. v. Lattimer Foundry & Mach. Co., �� )��/ �9��5��


supra, Safeway Stores v. Coe, 78 U.S.App. D.C. 19, 136 F.2d 771, 148 A.L.R. 782.

[Headnote 4]

While this court has often expressed its adherence to hearing appeals on the merits rather

than dismissing the same on technical grounds, it cannot do so in absence of compliance with

the jurisdictional requirement for filing notice of appeal within the time limited by the rules.

Rogers v. Thatcher, 70 Nev. 98, 255 P.2d 731.

The appeal from the judgment is hereby dismissed.

On Subsequent Proceedings by Appellant

The motion to dismiss the appeal above disposed of was ordered submitted October 3,

1960. The opinion was in process of being signed and filed when, on October 28, 1960,

appellants filed a document entitled “New Record on Appeal.” Although the foregoing

opinion notes that the defendants' motion for new trial and the plaintiff's motion to strike the

motion for new trial had never been disposed of by the trial court, the new record on appeal

shows that on September 30, 1960, the trial court filed an opinion and decision granting

plaintiff's motion to strike defendants' motion for new trial. The trial court's opinion is almost

identically along the lines of this court's foregoing opinion. The new record includes a notice

of appeal from such order, “and from said order if and to the extent that said order can be

considered and treated as an order denying plaintiff's motion for a new trial.” Such notice is

dated and filed October 4, 1960. From the new record it also appears that on October 5, 1960

defendants moved for relief from the judgment under Rule 60 on the ground of mistake,

inadvertence, surprise, excusable neglect, misconduct on the part of plaintiff, and on the

ground that the judgment is void. This was supported by affidavit reciting the same facts as to

the stipulation and order extending time for motion for new trial, etc., and the reliance of the

defendants thereon, as disposed of in the foregoing opinion. It further appears that an affidavit

in opposition was filed on October 7, 1960, ��


rejecting such claim. The new record also contains a notice of appeal, dated October 21,

1960, from the court's order denying defendants' motion to strike plaintiff's notice of entry of

judgment. It also contains a notice of appeal filed the same date from the court's order

denying defendants' motion for relief under Rule 60.

[Headnote 5]

It would be futile to put the parties to the necessity of further briefs on the merits or for

further motions supported by briefs on the issues raised by the three new notices of appeal.

With one exception, all issues have been disposed of in the foregoing opinion. The only

exception has to do with the appeal from the court's denial of relief from the judgment under

Rule 60. Not only was this largely within the court's discretion, but we do not see how the

court could have reached any other conclusion than it did.

It is therefore further ordered that the appeal from the trial court's order granting the

plaintiff's motion to strike defendants' motion for new trial and the defendants' appeal from

the court's order denying their motion to strike the notice of entry of judgment and the

defendants' appeal from the court's order denying the defendants' motion for relief under Rule

60 be, and each of such appeals is, dismissed.

Pike, J., and Wines, D. J., concur.

McNamee, C. J., being disqualified, the Governor commissioned Honorable Taylor H.

Wines, Judge of the Fourth Judicial District Court, to sit in his place.

____________

��76 Nev. 431, 431 (1960) La Vergne v. Fogliani��

In the Matter of the Application of DALLAS LA

VERGNE for a Writ of Habeas Corpus.

DALLAS LA VERGNE, Appellant, v. JACK FOGLIANI, Warden of Nevada

State Prison, Respondent.

No. 4362

November 22, 1960 357 P.2d 116

Appeal from the First Judicial District Court, Ormsby County; Richard R. Hanna, Judge,

Department No. 2.

Habeas corpus proceeding. The lower court entered order denying petitioner discharge

from custody, and petitioner appealed. The Supreme Court held that the evidence was

insufficient to show illegal restraint.

Affirmed.

[Reporter's note: Petition for writ of certiorari was denied by the Supreme Court of the

United States, March 27, 1961, 365 U. S. 861.]

Dallas La Vergne, in propria persona.

Roger D. Foley, Attorney General, Norman H. Samuelson, Deputy Attorney General, for

Respondent.

1. Habeas Corpus. In habeas corpus proceeding by petitioner who had been found guilty of voluntary manslaughter,

evidence failed to show that petitioner had been beaten and mistreated before and during his trial or that he

had been denied his rights to have witnesses in his behalf or that he had been held incommunicado or that

counsel appointed for him had made no attempt to properly defend him.

2. Habeas Corpus. Where there was nothing in the record to show that habeas corpus petitioner was detained other than by a

proper order of commitment issued by a court of competent jurisdiction in the exercise of such jurisdiction,

order restoring petitioner to custody of warden of state prison was proper. NRS 34.640.

OPINION

Per Curiam:

This is an appeal from an order of the court below denying appellant discharge from

custody under a writ ��


of habeas corpus. The matter is before this court on the merits of the appeal.

Petitioner was arrested in the County of Clark, State of Nevada, on a charge of murder.

Counsel was appointed to represent him and after a preliminary hearing in the Justice's Court

of Las Vegas Township he was bound over for trial in the District Court of Clark County.

Under the information filed in said District Court, he was tried by jury and found guilty of

voluntary manslaughter. Thereafter he was sentenced to a term in the Nevada State Prison of

not less than five years nor more than ten years. No appeal was taken from said verdict or

sentence. Pursuant thereto petitioner was transferred to the Nevada State Prison where he is

now detained.

[Headnote 1]

In petitioning the court below for a writ of habeas corpus, petitioner alleged that he was

illegally held by respondent for the following reasons:

“1. Petitioner was physically beaten and maltreated before and during his trial in Case No.

594 of the Eighth District Court of Nevada.

“2. Petitioner was denied his rights to have witnesses in his behalf in said Case No. 594.

“3. Before trial petitioner was held incommunicado and not allowed to talk to anyone but

the police in Case No. 594.

“4. Counsel appointed by the State in case No. 594 was inadequate and made no attempt

to properly defend petitioner, and the said Court made no attempt to help Petitioner in this

respect but rather encouraged it.”

The matter came on regularly for hearing in the court below which found that the said

allegations upon which petitioner's contention of illegal restraint is based were not supported

or established by evidence.

[Headnote 2]

There is nothing in the record before us to show that petitioner is detained other than by a

proper order of commitment issued by a court of competent jurisdiction ��


in the exercise of such jurisdiction. Under such circumstances, the order of the lower court

restoring petitioner to the custody of respondent was proper. NRS 34.640.

Affirmed.

____________

��76 Nev. 433, 433 (1960) Hayashida v. District Court��

FRANK K. HAYASHIDA, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF

THE STATE OF NEVADA, In and for the County of Washoe, Respondent.

No. 4325

December 1, 1960 357 P.2d 117

Original petition for a writ of prohibition.

Original proceeding for writ of prohibition to prevent court from continuing with a tort

action against petitioner on ground that court had no jurisdiction over petitioner. The

Supreme Court, McNamee, C. J., held that where truck and trailer were being unloaded at job

site which was a half mile from highway and engine was stopped and driver was out of truck

when accident occurred, the truck was not being “used and operated over public roads, streets

or highways” within statute providing for substituted service when vehicle is so used.

Writ issued.

Goldwater, Taber & Hill, of Reno, for Petitioner.

Belford, Anglim & Brown, of Reno, for Respondent.

Automobiles.

Where truck and trailer were being unloaded at job site which was a half mile from highway and

engine was stopped and driver was out of truck when accident occurred, the truck was not being “used

and operated over public roads, streets �� '��


or highways” within statute providing for substituted service when vehicle is so used. NRS 14.070.

OPINION


This is an original proceeding wherein petitioner seeks a writ of prohibition to prevent

respondent court from continuing with a tort action against him on the ground that it has no

jurisdiction over petitioner.

One Claud Head sustained personal injuries when a truck and trailer, owned by petitioner,

was being unloaded at a job site where the truck had parked a half mile from Nevada State

Highway Route 27. At the time of the accident the engine was stopped and the driver was out

of the vehicle. The said tort action was commenced by Head who alleged therein that the

accident resulted in part from the negligent unloading of the truck at said job site by

petitioner's employee.

Pursuant to NRS 14.070 petitioner was served with process by service on the director of

the department of motor vehicles. Subsection 1 of NRS 14.070 reads as follows:

“The use and operation of a motor vehicle over the public roads, streets or highways in the

State of Nevada by any person, either as principal, master, agent or servant, shall be deemed

an appointment by such operator, on behalf of himself and his principal or master, of the

director of the department of motor vehicles to be his true and lawful attorney upon whom

may be served all legal process in any action or proceeding against him growing out of such

use or resulting in damage or loss to person or property, and the use or operation shall be a

signification of his agreement that any such process against him which is so served shall be of

the same legal force and validity as though served upon him personally within the State of

Nevada.”

The respondent court denied petitioner's motion to quash such service of summons.

The only question before us in this proceeding is ��1!�%/%��


whether NRS 14.070 has application to accidents occurring under circumstances as heretofore

set forth.

In construing a statute similar to NRS 14.070, whose pertinent provisions are identical

therewith, the Supreme Court of Illinois held that substituted service was insufficient. Brauer

Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 50 N.E.2d 836, 842, 148 A.L.R.

1208. In that case an accident occurred during the unloading of a truck on private premises.

To reach such premises the truck had traversed the highways of the state. The court in holding

that such an accident was not within the statutory provision which permits constructive

service of summons in any action or proceeding growing out of the use and operation of a

motor vehicle over the public highways said:

“The difficulty with appellant's position is that it is based on the proposition that the

unloading was an incident of the contract of carriage. As between the shipper and the carrier,

this is no doubt true. It does not necessarily follow, however, that such unloading was

incident to the use of the highway. We are not here concerned with the relations or with any

contract existing between the shipper and the carrier. The sole question here is whether the

injury sustained by Lindstrom was one growing out of the use of the highway. * * * The

words ‘or resulting in damage or loss to person or property' refer only to damage or loss

growing out of the use of the highways, as specifically limited by the preceding language of

the section. These general words must be limited by the particular and specific words which

precede them. The general words must be construed to include only actions for damages

growing out of the use of the highways as indicated by the specific words which they follow.”

Accord: Langley v. Bunn, 225 Ark. 651, 284 S.W.2d 319; Ellis v. Georgia Marble Co., 191

Tenn. 229, 232 S.W.2d 45; O'Sullivan v. Brown, 5 Cir., 171 F.2d 199 (accident happened on

U. S. Government land with egress and ingress only through guarded gates); DeLuca v.

Consolidated Freight Lines, D.C. N.Y., 132 F. Supp. 863 (injuries received while unloading a��<�� ;-��C��+� ��(��,�� 123�C� ��


tractor-trailer stopped at a pier); and Mulligan v. Jersey Truck Renters, 196 Misc. 828, 95

N.Y.S.2d 232 (plaintiff injured by a sheet of cardboard which was being unloaded from

defendant's truck).

Statutes providing for constructive or substituted service of process on nonresident

motorists are in force in nearly all, if not all, of the states. While many of the cases construing

the same are in conflict, the reason more often than not results from the different wording of

the various statutes. Nevertheless it is impossible in some instances to reconcile conflicting

views.

In McDonald v. Superior Court, 43 Cal.2d 621, 275 P.2d 464, 466, substituted service

upon the owner of a truck was approved in a tort action growing out of an accident which

occurred during the unloading of the vehicle while it was parked partially on a street and

partially on the sidewalk. The negligence however was predicated upon the defective

condition of the truck, the court holding that “any accident occurring during the normal use of

the vehicle that is traceable to the negligent renting of it in a defective condition for use upon

the highways of this state is one resulting from its operation within the meaning of section

404.” The California Supreme Court in this case failed to pass on whether or not the actual

loading or unloading of a vehicle is part of its operation so as to make a nonresident amenable

to service in an action based solely on negligence occurring in the process of loading or

unloading. In lieu thereof it referred to the holdings in the Brauer case and others in accord

therewith with implied approval, although the court in the case of Schefke v. Superior Court,

136 Cal.App.2d 715, 289 P.2d 542, commenting upon the McDonald and Brauer cases states

otherwise.

We are unable to see how there could be any possible connection in the unloading of the

truck in this case with the use of the highway. We conclude therefore that the unloading of a

vehicle which is entirely off the public roads, streets and highways is not part of its use and

operation upon such public passageways within the meaning of NRS 14.070.


As stated in the Brauer case [383 Ill. 569, 50 N.E.2d 843]:

“The constitutionality of a similar statute of the State of Massachusetts was sustained by

the Supreme Court of the United States on the ground that the implied consent of a

nonresident, by the use of the highway, to the appointment of an attorney for service of

process, was limited to proceedings growing out of accidents or collisions on a highway in

which the nonresident may be involved. Hess v. Pawloski, 274 U.S. 352, 47 S. Ct. 632, 71

L.Ed. 1091.

“We think it is clear from the opinion in that case that a statute providing for such

substituted service, if not limited to actions or proceedings growing out of accidents or

collisions on the highways, would be invalid under section 2, article IV, of the Federal

constitution.”

As the petitioner was not properly brought into the jurisdiction of this state under our

substituted service statute, respondent court is without jurisdiction to proceed with said tort

action against petitioner.

Let the writ of prohibition issue.


____________

��76 Nev. 437, 437 (1960) State v. Eisentrager��

THE STATE OF NEVADA, Appellant, v. THOMAS ARTHUR EISENTRAGER, Also

Known as Thomas Tripp, Respondent.

No. 4317

December 5, 1960 357 P.2d 306



Prosecution for murder. The trial court discharged jury which had not reached a verdict

and defendant moved for order dismissing information. The trial court dismissed information

and state appealed. The Supreme Court, Pike, J., held that where previously trial court, �� 0 �� 1�<��


on at least two occasions, inquired of foreman how vote stood, and foreman's answers

showed that vote had fluctuated between eight to four and ten to two, with no change in the

ten to two vote in preceding 12-hour period and with only a change of one juror during

preceding court day, discharge of jury on basis that it was unable to come to a conclusion was

not an abuse of discretion and subsequent information should not have been dismissed on

basis that defendant had been once in jeopardy.

Judgment reversed.

(Petition for rehearing denied January 9, 1961.)

Roger D. Foley, Attorney General; Jack C. Cherry, District Attorney, Clark County;

Charles L. Garner, Deputy District Attorney, Clark County, for Appellant.

Gordon L. Hawkins and Tad Porter, of Las Vegas, for Respondent.

1. Criminal Law. Trial court has power, in exercise of sound, legal discretion, to discharge jury after cause has been

submitted to it, without consent of defendant and without discharge constituting a legal bar to a future trial

by reason of constitutional provision prohibiting double jeopardy for the same offense, and that principle

applies, in all cases of manifest necessity, where such necessity arises from some physical cause occurring

during the trial or the deliberation of the jury, or from inability of jury to agree upon a verdict. NRS

175.405.

2. Criminal Law. Where trial court, on at least two occasions, inquired of foreman how vote stood, and foreman's answers

showed that vote had fluctuated between eight to four and ten to two, with no change in the ten to two vote

in preceding 12-hour period and with only a change of one juror during preceding court day, discharge of

jury on basis that it was unable to come to a conclusion was not an abuse of discretion and subsequent

information should not have been dismissed on basis that defendant had been once in jeopardy. NRS

175.405.

OPINION


Eisentrager, respondent herein, was charged by an information filed in Clark County,

Nevada, with the ��


crime of murder and with being a habitual criminal. Respondent pleaded not guilty to the

charges and, after a jury trial lasting about four weeks, the issue of respondent's guilt as to the

murder charge was submitted to the jury for its consideration on December 29, 1959. Some

42 hours after the jury had received the case, the jury was brought into court on December 31,

1959 and, not having reached a verdict, was discharged by the court. Subsequently,

respondent moved for an order dismissing the information, basing the motion upon the

ground that Eisentrager had been once in jeopardy. The motion to dismiss was heard and

granted by a trial judge other than the judge who had presided at the trial. This appeal by the

state is from the order dismissing the information.

[Headnote 1]

In its written opinion the trial court relied upon a decision of this court in Ex Parte

Maxwell (1876), 11 Nev. 428, 435. In the last referred to decision it considered the provisions

of sec. 397 of the then Criminal Practice Act of this state, which provisions were identical

with those of NCL 11007, now NRS 175.405, in effect during all proceedings had in this

case, and reading as follows: “ ‘* * * the jury shall not be discharged after the cause is

submitted to them until they have agreed upon their verdict and rendered it in open court, * *

* or unless, at the expiration of such time as the court may deem proper, it satisfactorily

appear that there is no reasonable probability that the jury can agree.'” The decision in Ex

Parte Maxwell recognized the power of the trial court, in the exercise of a sound, legal

discretion, to discharge the jury after the cause had been submitted to it, without the consent

of the defendant and without the discharge constituting a legal bar to a future trial by reason

of the constitutional provision prohibiting double jeopardy for the same offense. It also

recognized that this principle applies in all cases of manifest necessity “* * * whether such

necessity arises from some physical cause occurring during the trial or the deliberation of the

jury, or from the inability of the jury to agree upon a verdict.” The �� $�� 0 �� 0 ��


opinion held that the particular facts and circumstances appearing upon the record were

insufficient to authorize the court, in the exercise of a legal discretion, to discharge the jury

without the defendant's consent, stating that the only basis appearing in the record for the

exercise of the court's discretion in dismissing the jury was that the foreman of the jury had

stated that the jury was unable to agree upon a verdict. This was held to be an insufficient

basis for the exercise of such discretion and that, under the circumstances disclosed by the

record, the discharge of the jury was equivalent to a verdict of acquittal. Certain language 1

appearing in the opinion at page 437 indicates that, if the record fails to establish the

existence of the facts as determined by the court in the exercise of its discretion to discharge

the jury by reason of its being unable to agree upon a verdict, the discharge of the jury was an

illegal exercise of power on the part of the court. The real issue before the trial court there

was whether the jury could agree upon a verdict. NRS 175.405. As to what the record must

show in this regard, we are in accord with the decision of the Supreme Court of California in

People v. Greene (1893), 100 Cal. 140, 34 P. 630, where that court in construing sec. 1140 of

the penal code of that state, which is identical with the provisions of the Nevada statute here

under consideration, with reference to the authority of the court to discharge the jury “at the

expiration of such time as the court may deem proper,” if “it satisfactorily appears that there

is no probability that the jury can agree,” stated “The reasons upon which the court deems it

proper to discharge the jury are not required to be placed on record. It is sufficient that it

shows the jury were unable to agree. The judge is not bound to take as final the statement of

the jury that they cannot agree upon a verdict, but when such a statement is made, the court

below, familiar ��

____________________

1

“The court may have been satisfied that the jury were unable to agree upon a verdict, and that there was no

reasonable probability of their doing so upon further consultation and deliberation. But these were essential

facts, the existence of which ought to be determined by the court and established by the record.”


with the nature of the evidence, and probably the temperaments of the men who compose the

jury, is better qualified to say whether there is a reasonable probability of an agreement than

the appellate court. Certainly the latter ought not to interfere with the ruling, except in cases

of clear abuse of discretion.”

[Headnote 2]

The transcript of proceedings in the appeal before us shows that the trial court, on at least

two occasions prior to discharging the jury, had inquired of the foreman how the vote stood,

and the foreman's answers showed in effect that the vote had fluctuated between eight to four

and ten to two, with no change in the ten to two vote in the 12-hour period preceding the final

session of the court at which the jury was discharged and with only a change of one juror

during the jury's deliberations throughout the preceding court day. The minutes of the court

recite that the court discharged the jury because it was unable to come to a conclusion, and

the remarks of the judge in discharging the jury include his reference to the fact that the jury

had been unable to come to a conclusion and that it was not unusual to have a “hung jury.”

All the foregoing appears in the record and takes the instant case out of the rule so strictly

pronounced by Earll, J., 2 in the Maxwell case, where the record was confined to the

statement that “the jury retired * * * and subsequently returned into court and by their

foreman stated that they were unable to agree upon a verdict. Whereupon the court discharged

the jury from further consideration of the case.” The court stated: “The record is silent as to

the length of time the jury were out * * *.”

There were sufficient facts before the trial court upon which to exercise its discretion in

discharging the jury, and there is no showing of any abuse of that discretion.

The order appealed from is hereby reversed.


____________________

2

Beatty, J., while concurring in the court's order remanding the prisoner to the custody of the sheriff,

expressly withheld “any expression of opinion as to the effect of the discharge of that jury.”

____________

��76 Nev. 442, 442 (1960) Kirk v. Parsons��

In the Matter of the Contested Nomination of JEWEL E. PARSONS for the Office of County

Commissioner.

E. L. (Ted) KIRK, Appellant, v.

JEWEL E. PARSONS, Respondent.

No. 4374

December 7, 1960 357 P.2d 120

Appeal from the Fifth Judicial District Court, Esmeralda County; Taylor H. Wines,

Presiding Judge.

Proceeding on petition to contest nomination of a specified person, by one of the major

parties, for office of county commissioner. The lower court entered judgment dismissing the

contest, and an appeal was taken. The Supreme Court, McNamee, C. J., held that rule of civil

procedure pertaining to computation of periods of time and providing for exclusion of

intermediate Sundays where the period of time prescribed is less than seven days, had no

application to an election contest, and therefore plaintiff's petition to contest, filed on the

sixth day after the completion of a canvass of votes, was not timely filed, even though such

six-day period included an intermediate Sunday.

Affirmed.


Diehl and Recanzone, of Fallon, for Respondent.

1. Time.

Rule of civil procedure pertaining to computation of periods of time and providing for exclusion of

intermediate Sundays where the period of time prescribed is less than seven days, had no application to an

election contest, and therefore plaintiff's petition to contest, filed on the sixth day after the completion of a

canvass of votes, was not timely filed, even though such six-day period included an intermediate Sunday.

NRS 294.295; NRCP 6(a).

2. Elections. Proceedings to contest an election are special and differ substantially from civil proceedings which afford

a common-law remedy.


OPINION


On September 14, 1960, the board of county commissioners of Esmeralda County, after

the completion of the canvass of the votes at the last primary election, declared that

respondent was the candidate who received the highest vote of the Democratic Party for the

unexpired term of the office of county commissioner and thus was the nominee of that party

for said office. Appellant, who also was a Democratic candidate for the same office, desiring

to contest the respondent's nomination filed a petition to contest the same in the lower court

on September 20, 1960.

NRS 294.295 provides: “Any candidate at a primary election desiring to contest the

nomination of another candidate for the same office may proceed within 5 days after the

completion of the canvass as provided in NRS 294.265. The contestee shall be required by

the order of a justice of the supreme court or a judge of the district court to appear and abide

the further order of the court.”

The filing took place on the 6th day after the completion of the canvass and for this reason

the lower court dismissed the contest. Appeal is from such order of dismissal.

The only question presented here is whether appellant's petition to contest was timely

filed.

[Headnote 1]

Appellant contends that when the period of time prescribed is less than 7 days, an

intermediate Sunday must be excluded in the computation; that Sunday, September 18th, was

an intermediate Sunday and should be excluded from the computation; and that therefore

September 20th would be within the 5-day period prescribed. This contention is based on

Rule 6(a), Nevada Rules of Civil Procedure. 1 �K��3:�;��)8��

��

____________________

1

Rule 6(a) “Computation. In computing any period of time prescribed or allowed by these rules, by order of

court, or by any applicable statute, the day of the act, event, or default after which


We have concluded that Rule 6(a) NRCP has no application to election contests.

[Headnote 2]

Proceedings to contest an election are special and differ substantially from civil

proceedings which afford a common-law remedy. Brown v. Dunn, 35 Nev. 166, 127 P. 81;

Garrard v. Gallagher, 11 Nev. 382.

“As the rule is well settled that, as to the matter to which it relates a special law controls a

general one, these provisions of the primary election act for initiating contests by affidavit,

being special, are in force, and cannot be ignored by the court, and are not controlled or

eliminated by general provisions of the civil practice act providing for a formal action and the

necessary requirements relating to parties and the allegations of the complaint. As the time is

short in which a contest may be conducted and errors corrected relating to a primary election,

it is apparent that the legislature believed that necessity or good reason existed for providing a

summary and speedy proceeding by affidavit.” Brown v. Dunn, supra.

If a simplified procedure for initiating an election contest is desirable because of the

element of time, and prevails over the procedural provisions of general statutes or rules, a

fortiori the time provisions specified in the special statute would prevail over a general

procedural rule relating to time such as Rule 6(a).

In Vailes v. Brown, 16 Colo. 462, 27 P. 945, 946, 14 L.R.A. 120, the statutory period for

filing the initial pleading of an election contest had fully elapsed. The court in holding that

the time would not be extended merely on the ground that the last day fell on Sunday there

said: “It has been held that where a rule to plead expires on Sunday the party has the next day

in which to ��-��

____________________

the designated period of time begins to run is not to be included. The last day of the period so computed is to be

included, unless it is a Sunday or other non-judicial day, in which event the period runs until the end of the next

day which is neither a Sunday nor a non-judicial day. When the period of time prescribed or allowed is less than

7 days, intermediate Sundays and other non-judicial days shall be excluded in the computation.”


plead; but this rule has generally been limited in its application to causes over which the court

has already acquired jurisdiction. * * * The statute gives the contestor ‘ten days after the day

when the votes are canvassed' to file his statement. After much consideration we are satisfied,

both upon principle and authority, that when the statutory period for filing the statement of an

election contest for county officers under the act of 1885 has fully elapsed, excluding the day

when the votes are canvassed, the time cannot be extended merely on the ground that the last

day happens to fall on Sunday. This is the reasonable, as well as the natural and literal,

interpretation of the statute. Any other construction of such an act would be unwarranted.

Whenever recourse to the courts becomes necessary to determine the result of an election,

public and individual interests alike require that the proceeding should be commenced and

prosecuted promptly. * * * The statement of contest not having been filed within the time

required by the statute, the court below erred in entertaining jurisdiction of the case. The

judgment is accordingly reversed, and the cause remanded, with directions to the county court

to dismiss the proceeding.” Accord, Crownover v. Millar, 45 Nev. 81, 197 P. 817; State ex

rel. Thatcher v. Brodigan, 37 Nev. 458, 142 P. 520.

We are not unmindful of the holdings in the cases of Landrum v. Cockrell, 230 Ky. 599,

20 S.W.2d 464, and Damron v. Johnson, 192 Ky. 350, 233 S.W. 745. These cases do not

persuade us to a conclusion which we believe would be contrary to the existing law in this

state.

Affirmed.


____________

��76 Nev. 446, 446 (1960) Carson v. Lowe��

In the Matter of the Parental Rights of

CHANNING CARSON, a Minor.

ALEXANDER F. CARSON, Father of the Minor Child, CHANNING CARSON, Appellant,

v. CAROL CHANNING CARSON LOWE, Mother of Said Minor Child, Respondent.

No. 4296

December 9, 1960 357 P.2d 591


Department No. 1.

Proceeding by child's mother, who had divorced father and who had remarried, to

terminate the father's parental rights on theory of abandonment. The lower court entered

decree terminating father's parental rights, and father appealed. The Supreme Court, Badt, J.,

held that findings that the conduct of the father evidenced a settled purpose on his part to

forego all parental custody and relinquish all claims to the child, and that the father had left

the child in the care and custody of another without provision for his support and without

communication for a period of one year, were supported by the record.

Affirmed.


Jones, Wiener & Jones, of Las Vegas, and William B. Murrish, of Hollywood, for

Appellant.

Goldwater & Singleton and McNamee & McNamee, of Las Vegas, for Respondent.

1. Parent and Child. The question whether a parent has abandoned his child within statute providing for termination of

parental rights is a question of fact, and not a question of law. NRS 128.010 et seq., 128.010, subd. 2,

128.090.

2. Parent and Child. In proceeding by child's mother, who had divorced father and who had remarried, to terminate the father's

parental rights on theory of abandonment, findings that the conduct of the father evidenced a settled

purpose on his part to forego all �� 1� �%1%�� 1� �%1%��

��76 Nev. 446, 447 (1960) Carson v. Lowe��

parental custody and relinquish all claims to the child, and that the father had left the child in the care and

custody of another without provision for his support and without communication for a period of one year,

were supported by the record. NRS 128.010 et seq., 128.010, subd. 2, 128.090.

3. Constitutional Law. Termination of divorced father's parental rights under child abandonment statute was not in violation of

due process clauses of state and federal constitutions. NRS 128.010 et seq.

4. Parent and Child.

The remedy of a decree terminating parental rights should be applied with caution. NRS 128.010 et

seq., 128.010, subd. 2, 128.090.

OPINION


On this appeal we affirm the judgment of the district court terminating the parental rights

of Alexander F. Carson as to Channing Carson, a minor, “including any right of custody,

partially or wholly, of said child.”

The minor, Channing Carson, was the issue of the marriage of Alexander F. Carson,

appellant, and Carol Channing Carson Lowe, respondent. The father and mother separated in

March 1956 and were divorced in September 1956. The decree granted the mother the care,

custody, and control of the minor child, then three years old, but without provision for the

child's support by the father. Immediately following the entry of the divorce decree in

September 1956 the mother married Charles Lowe, and the minor has been continuously in

the custody of Mr. and Mrs. Lowe from September 1956 to July 1959 when the petition in

this proceeding was filed and to the present time. The child is now six or seven years old.

The court made formal findings, finding to be true the allegations of the petition that since

1956 appellant had failed and refused to support the minor child though able to do so; that the

mother, since the birth of said child, and with Charles Lowe, her present husband, had since

September 5, 1956 supported the said child entirely; that the child had been abandoned by its

father; and that the defendant's denials were untrue.

��76 Nev. 446, 448 (1960) Carson v. Lowe��

The proceedings culminating in the judgment terminating parental rights were had under

the provisions of Chapter 128 NRS. Subdivision 2 of NRS 128.010 contains the following

definitions:

“2. ‘Abandonment of child' imports any conduct of one or both parents of a child which

evinces a settled purpose on the part of one or both parents to forego all parental custody and

relinquish all claims to the child, and a parent or parents of a child who shall leave the child

in the care and custody of another without provision for his support and without

communication for a period of 1 year shall be presumed to have intended to abandon the

child.”

[Headnote 1]

Appellant's opening brief specified as assignments of error (1) the finding “that the

conduct of the appellant evidenced a settled purpose on his part to forego all parental custody

and relinquish all claims to the child”; and (2) the finding that appellant “had left the child in

the care and custody of another without provision for his support and without communication

for a period of one year.” There are two additional assignments of error which will be treated

later, but the two assignments quoted are the ones with which we are primarily concerned.

The opening brief discusses at length the evidence to support appellant's contention that such

evidence does not support the findings. However, in reply to the respondent's answering brief

which in turn discusses at length the evidence under respondent's contention that such

evidence amply supported the findings, appellant insists that respondent “misses the issue on

appeal,” as there is no fact question involved but a question of law, namely, that of the

construction of the statute. We refrain from discussing appellant's change in the point of his

attack on the judgment. We reject, however, appellant's contention that the question involved

is one of law. It is true that in one case cited by appellant, Glendinning v. McComas, 188 Ga.

345, 3 S.E.2d 562, 563, the court reversed a judgment overruling a petition to the demurrer

under the theory that the statute “must be construed strictly,” and that under such �� 0 ��

��76 Nev. 446, 449 (1960) Carson v. Lowe��

strict construction the complaint had failed to show the child's need. It appears however, that

the courts are in virtually unanimous agreement to the effect that the question is one of fact as

to whether the evidence establishes abandonment under the statute. Jones v. Thompson, 151

Me. 462, 121 A.2d 366; In Re Potter, 85 Wash. 617, 149 P. 23; Winans v. Luppie, 47 N.J.Eq.

302, 20 A. 969; In Re Bistany, 204 N.Y.S. 599, 600, 209 App.Div. 286.

[Headnote 2]

A review of the evidence shows that for the period of three or four years, from 1956 to

1959, any communication or attempts at communication on the part of appellant were most

meager. The trial court apparently rejected, as any showing constituting a real attempt to get

in touch, a single letter and a single telephone call in January of 1957, as well as a trip in June

1957 which appellant made to California from his residence in Florida. From then until June

of 1959 nothing substantial is presented in the way of any attempt to communicate or to get in

touch with his child. The court apparently likewise rejected his contention of his contribution

to the child's support by way of his interest in an asserted fund of $150,000 which he claimed

to be community property, in which he had a one-half interest, and which fund existed at the

time of the separation. The evidence was conflicting as to the existence of any such fund, it

being asserted by respondent that at the time of the divorce she was virtually insolvent. Even

during the marriage any earnings contributed to the community property by the husband were

nominal. Although appellant's earnings in 1957 amounted to $6,000 and in 1958 to $5,000

and in 1959 to $3,500 to the date of the trial, he contributed nothing to the child's support and

his gifts to the child were limited to those made on the child's birthday and on Christmas. He

made no real attempt to insist upon or to enforce his rights of visitation under the divorce

decree. It is true that he sought to prove that his attempts to communicate with his infant son

were frustrated by respondent and by her attorney and by her accountant, and we are urged to

accept this proof.

��76 Nev. 446, 450 (1960) Carson v. Lowe��

This, of course, we cannot do in view of the court's findings. More light on such findings

appears from the court's written opinion and decision in the case. The learned trial judge said:

“* * * [T]he father here left the child with the mother for a long period of time without

making any real effort to get a share of custody of the child or even a determination of

definite periods of visitation. It would certainly seem that if a father were as concerned and

filled with love for his child as the father here professed to be, the space of distance would

certainly not prove to be a substantial obstacle, particularly since he was unhampered with a

subsequent marriage or any other responsibilities. * * * [T]he father was well aware that a

divorce and custody decree existed in the State of Nevada. He consulted an attorney, or

attorneys, on the other matters. He certainly could have learned that a resort to the Nevada

court on a motion to modify or construe the custody provisions of the Nevada decree would

have brought the petitioner and her husband * * * before this court much sooner than the

particular action now pending. The father at no time initiated an effort to determine custody

and support. * * * As to the father's claim that he had provided some support for the child

through a tax condition, this most certainly does not ring with sincerity. Demands were made

by the mother's representatives for contribution to the support of the child, and the tax

situation was his only response.” In considering the best interests of the child the trial judge

said: “The differences in environment and miles would result in a gross injustice in itself to

the child, who at this very tender stage does not even know what his real father looks like. He

probably doesn't even realize that the present husband of Mrs. Channing is not his father. This

could only cause consternation and general disruptment in the mind of a boy of these years. It

would just naturally follow that the boy would have to be pulled out of one environment, in

which he was reared, and suddenly, at least once during each year, placed in another

environment with different associations at great distances away from his �� 0 ��'

��76 Nev. 446, 451 (1960) Carson v. Lowe��

mother, which would add to the confusion being multiplied in the child's mind.”

In this the court apparently had in mind the provisions of NRS 128.090, which required

that the court “shall give full and careful consideration of all of the evidence presented, with

due regard to the rights and claims of the parent or parents of such person and to any and all

ties of blood or affection, but with a dominant purpose of serving the best interests of such

minor person.”

In finding that the evidence supported the statutory requirements for abandonment, the

court found such abandonment both under the conduct of the father evincing a settled purpose

on his part to forego all parental custody and relinquish all claims to the child and, secondly,

under the statutory presumption of abandonment on the part of a parent who leaves the child

in the care and custody of another without provision for his support and without

communication for a period of one year. It is our holding that there is ample support in the

record for the finding of abandonment under both of these provisions.

A third assignment of error is the court's finding that appellant was an unfit person. We

need not be concerned with this assignment of error, as, regardless of his fitness or unfitness

in other respects, the judgment terminating his parental rights must be affirmed by reason of

the finding of abandonment.

[Headnote 3]

Finally, appellant asserts that the court's construction of the statute is in violation of the

due process clauses of the state and federal constitutions. We find no merit in this

assignment.

[Headnote 4]

The court is aware of the seriousness and of the terrible finality of a decree terminating

parental rights. Undoubtedly such remedy should be applied with caution. But that this court

should, from the cold record, attempt to substitute its judgment for that of the trial court

which had all parties before it, observed their demeanor ��

��76 Nev. 446, 452 (1960) Carson v. Lowe��

and weighed their credibility, especially in an area of such sensitivity, will not be attempted.

Affirmed.

Pike, J., and Hanna, District Judge, concur.

McNamee, C. J., being disqualified, the Governor assigned Honorable Richard R. Hanna,

District Judge of the First Judicial District, to sit in his place.

____________

��76 Nev. 452, 452 (1960) McKernon v. City of Reno��

GEORGE E. McKERNON and JOSEPH CASAZZA, Appellants, v. CITY OF RENO; JOHN

MARSHALL, DICK DIMOND, JOE MASTROIANNI, CHARLES COWAN and GEORGE

CARR As City Council of the City of Reno; RENO CHAMBER OF COMMERCE, INC.,

and HARDESTY & SON, INC., Respondents.

No. 4299

December 9, 1960 357 P.2d 597

Appeal from judgment of Second Judicial District Court, Washoe County; Peter Breen,


Suit for injunction against construction of tourist information or hospitality center on a

dedicated plaza. The trial court entered judgment denying relief, and the plaintiffs appealed.

The Supreme Court, Badt, J., held that the construction of such a center on the plaza would

not violate the dedication of the plaza.

Affirmed.


Ernest S. Brown, Jack I. McAuliffe and George E. McKernon, all of Reno, for Appellants.

Roy Lee Torvinen and Richard Breitwieser, of Reno, for Respondent City of Reno.


Springer, McKissick & Hug, of Reno, for Respondent Reno Chamber of Commerce, Inc.

Vargas, Dillon & Bartlett, of Reno, for Respondent Hardesty & Son, Inc.

1. Dedication. Generally, an acceptance in some form is essential for a valid and complete dedication; in the absence of

an acceptance, a “dedication” is in law merely an offer to dedicate; a mere offer to dedicate does not

become binding until such offer is accepted.

2. Dedication. Where formal dedication is made by state or municipality, or dedication is made in compliance with

statutes relating thereto or dedication is by sale of lots with reference to a plat showing dedications, no

acceptance is necessary.

3. Dedication. Where a dedication is beneficial to a donee without imposing any burden, acceptance will be presumed as

of the date of the dedication.

4. Dedication. Under rule that where a dedication is beneficial to a donee without imposing any burden, acceptance will

be presumed as of the date of the dedication, dedication of plaza became complete when the dedicator filed

a plat representing the dedication of the plaza, and the dedicator was without authority to resume control or

to limit or curtail the rights of the public to any greater extent than provided in the terms of the original

dedication, and attempted limitation contained in covenant in dedicator's subsequent deeds was without

avail.

5. Dedication. A dedication of a plaza was not ineffective merely because the city was not incorporated until later date,

inasmuch as the dedication was to the public, which was an ever-existing grantee, capable of taking a

dedication for public use.

6. Dedication. In determining whether certain structures and improvements are consistent with the dedication of lands

within a city as public squares, parks, and plazas, each case must turn upon its own particular facts.

7. Dedication. Dedication of land as a plaza was not violated by construction of a tourist information or hospitality

center on a part thereof.


8. Municipal Corporations. Tourist information or hospitality center, even though built in public plaza by chamber of commerce as

lessee of city, served a public benefit; the center did not constitute such a devotion of public property for

private use as would be enjoined.

OPINION


This appeal requires the determination of the proper use that may be made of land

dedicated as a “plaza”; and the disposition of question prior to such determination with

reference to the precise nature of the dedication, the necessity for its acceptance, and the

effectiveness of the covenants of certain deeds (of lots in the same subdivision as the

dedicated plaza, and owned by the dedicator) executed, respectively, four and six years after

the dedication. Appellants, as the successors in interest of the grantee in such later deeds,

sued for an injunction against the construction of a certain “Hospitality Center” on the

dedicated plaza, and have appealed from a judgment denying such relief.

We start with appellants' assertion: “The area in issue was given to the City of Reno by

Myron C. Lake in the year 1870 by a dedication which appears on appellants' Exhibit A.”

Such exhibit consisted of a plat filed by Lake in which he had laid out sundry streets and also

an area entitled “Plaza.” No question is raised as to the proper filing or recordation of this

plat. Indeed, it was stipulated in open court by counsel (counsel for appellants dictating the

stipulation into the record and counsel for the respondents concurring): “The stipulation is

that the plaza set forth on plaintiffs' Exhibit A and the whole thereof and the blocks as

indicated on the [plat] and lots constitute the dedication of Myron C. Lake initially

concerning the matter which is before your Honor.” Counsel for respondents clinch the matter

further: “Mr. McKissick: As I understand the stipulation, that map represents the dedication

of the plaza and the whole thereof as shown thereon. Mr. Brown: (�� 6��


That is correct, your Honor. The court: Very well, the record will so show.”

The record then becomes silent as to what occurred between such dedication in 1870 up to

the year 1874. However, both parties have relied upon and have quoted in considerable length

in their briefs the language used by Norcross, J., in the District Court of the United States for

the District of Nevada in Myron C. Lake v. Washoe County, The City of Reno, et al.

(decision unreported, filed in said court November 1, 1944). The Myron C. Lake, plaintiff in

that case, was the son of the Myron C. Lake who made the 1870 dedication. The former

sought a decree revesting in him the title to a piece of land that had been included in the

dedication by his father of a certain square or plaza, by reason of its abandonment by the city.

The federal district court granted a motion to dismiss. In its opinion the court said: “It is a

part of the history of the state that the Central Pacific Railroad was completed to a point

within what is now the City of Reno in May, 1868, at which time the town of Reno was

established as the station most convenient for handling freight and passengers to and from

Virginia City; that the transcontinental railroad system, of which the Central Pacific was a

part, was completed a year later, May 10, 1869; that the State Legislature of 1871 passed an

act changing the county seat of Washoe County from Washoe City to the town of Reno.

(Stats. Nev. 1871, p. 59) Hess v. Pegg, 7 Nev. 23. In order to induce the county

commissioners to locate the courthouse at the new county seat of Reno, where it is now and

has been located since about the year 1871, the said Myron C. Lake granted to the County of

Washoe the site for the new county building and courthouse and across Virginia street and

immediately in front thereof, set apart an open square, and to the north and south thereof two

other tracts of land separated therefrom by streets connecting with said Virginia street. It is

also a matter of common knowledge that the said Myron C. Lake as owner of the land

adjoining these several tracts so set apart for public use as open squares ��$� �� $� �'


or plazas, sold all of the remaining portion of his land holdings to purchasers who purchased

the same in respect to such open squares or plazas.” (The federal court then referred to

legislative proceedings whereunder part of the “public plaza” dedicated by Lake was used as

a site for a Carnegie library and to the subsequent construction of a federal building “upon a

portion of said plaza.”) The references to the fact that Lake, after his dedication, “sold all of

the remaining portion of his land holdings to purchasers who purchased the same in respect to

such open squares or plazas” did not place the dates of such private sales. The court below

stated in its written opinion: “With reference to the position that Myron C. Lake dedicated the

plaza to enhance the value of said lots 1, 2, and 3. Such acts are activities in the growth of

history, is a part of the history of Nevada of which the court takes judicial notice.” The court

did not, possibly could not, take judicial notice of the feverish activity and growth of and

within the City of Reno in the period following the establishment of the county seat of

Washoe County at Reno in 1871, including the building of many residences in “Lake's south

addition” as reported in the current press of that year. We make no point of this. It was

apparently beyond the ingenuity of counsel to present competent proofs of these matters.

Appellants say that the burden was on respondents to prove sales of lots by Lake between

1870 and 1874 as proof of acceptance of Lake's dedication of the plaza or as proof of an

estoppel against an attempt by Lake to recall his dedication. Respondents insist that the

burden was on appellants to show that there were no sales during this period as part of their

proof that they were entitled to the injunctive relief sought. Again we make no point of this,

and mention it only to complete the historical picture. The conclusions we have reached are

based on principles of law independent of those arising from the sale of lots by the dedicator

of streets or public places.

On March 19, 1874 Myron C. Lake sold to the predecessor in interest of appellants lots 1

and 2, and on June 1, 1876 sold to such predecessor lot 3 in block 2 which ��$��


fronted on the dedicated plaza. Each of these conveyances contains the following covenant:

“And the said party of the first part hereby agrees that he will not sell or lease or otherwise

dispose of the land in front of said lot[s] above described, nor build on same or allow any

other person or persons to do so, but keep the same open and public as a “public plaza.'”

(1) Appellants contend that under the holding of this court in Shearer v. City of Reno,36

Nev. 443, 136 P. 705, 707, there being no evidence in the record to show that the city

accepted the dedication, or that Lake had sold lots with reference thereto, before he sold to

Jones, the predecessor of the appellants, Lake had the full power, right, and authority to recall

at his pleasure the dedication to the city, including his right to put further restrictions on such

dedication, such as the condition that he would not “build on [the land dedicated as a plaza]

or allow any other person or persons to do so, but keep the same open and public as a ‘public

plaza.'” The language used in the Shearer case does indeed set forth such proposition of law

in the following language: “A dedication of land for public purposes is simply a devotion of

it, or of an easement in it, to such purposes by the owner, manifested by some clear

declaration of the fact. If nothing beyond the declaration be done—if there be no acceptance

by the public of the dedication, and no interest in the property be acquired by third

parties—the dedication may be recalled at the pleasure of the owner.” The learned trial judge

rejected this authority as being not in point. In this he was correct, because that case dealt

entirely with the question of dedication of a street, namely, Riverside Avenue, whereas the

present case deals with the dedication of a plaza. The application of the law to these two

differing situations is in turn entirely different.

In the dedication of a street a burden is placed upon the city. The improvements upon a

dedicated park are left to be made by those who are interested. The city may take it up, or it

may be left to individuals. The resulting public benefit may result simply from leaving a

space for air or unobstructed view. Attorney General ��5��1#!�C� �


v. Abbott, 154 Mass. 323, 28 N.E. 346, 13 L.R.A. 251. It is such theory that developed into

the rule enunciated in Smith v. State, 217 Ind. 643, 29 N.E.2d 786, 791, where the court said:

“The authorities are abundant which hold that where the dedication is beneficial to the donee

without imposing any burdens, acceptance will be presumed as of the date of the dedication.

McQuillin Municipal Corporations, 2d Ed., Vol. 4, p. [771] 554, sec. 1703; Ramstad v. Carr

[1915, 31 N.D. 504, 154 N.W. 195, L.R.A. 1916B 1160].”

In the last-named case the court, after noting the general propositions that a dedication is

in the nature of a grant, that a grant does not become effective until accepted by the grantee,

that such acceptance need not be by formal or express words but may be by acts or conduct,

says: “It is also true, as a general rule, that delivery of a grant implies its acceptance by the

grantee, * * * and acceptance of a grant beneficial to the grantee may be presumed. This is

especially true where it conveys valuable property and creates no obligation or burden to be

assumed by the grantee.” [31 N.D. 504, 154 N.W. 202] The court then notes the great conflict

in the authorities upon the question of whether an acceptance is necessary in the case of a

statutory dedication, and concludes that the more prevalent rule is that an acceptance is

necessary, quoting McQuillin Municipal Corporations, secs. 1576-1578. The discussion,

however, centers about the iniquities that would follow if an owner of property could thrust

upon a city, without its consent or acceptance, the dedication of many streets and alleys with

the consequent burden of their improvement and maintenance. It would seem, however, that

the reason for such prevalent view fails where the dedication confers a benefit on the public

without imposing any burden. In this respect the opinion further quotes McQuillin, sec. 1578,

as follows: “A further exception is apparently declared by some authorities by holding that

where the dedication confers a benefit on the public without imposing any burden, as when

land is donated for a public park or square or �� '


school site, an acceptance will be presumed, and the dedication becomes complete as soon as

the owner has manifested his intent by appropriate acts or declarations.” It was further noted

in the opinion that it was a number of years before improvements were made, that such

situation is usually the case, and that the donor will be presumed by law to have contemplated

such state of things and to have imposed no condition upon the public to use the property

dedicated until the public wants required its improvement and use for the purpose indicated.

Nor is there anything in the record of this case to show that Lake, when making the

dedication, contemplated a public use of the dedicated plaza till such time as the growth and

expansion of the municipality made it desirable for public convenience that it be so used.

[Headnote 1]

So we may accept the assertion of appellants that the general rule is well settled that for a

valid and complete dedication an acceptance in some form is essential. City of Santa Clara v.

Ivancovich, 47 Cal.App.2d 502, 118 P.2d 303; Union Transportation Company v. Sacramento

County, 42 Cal.2d 235, 267 P.2d 10; 26 C.J.S. Dedication, sec. 34, pp. 459 to 463; that in the

absence of an acceptance, a “dedication” is in law merely an offer to dedicate, Union

Transportation Company v. Sacramento County, supra, and that a mere offer to dedicate does

not become binding until such offer is accepted, Sacramento County v. Lauszus, 70

Cal.App.2d 639, 161 P.2d 460.

[Headnote 2]

There are, however, several exceptions to this rule, as (1) where a formal dedication is

made by a state or municipality, State of California v. United States, 9 Cir., 169 F.2d 914; (2)

where a dedication is made in compliance with statutes relating thereto, Police Jury, Jefferson

Parish v. Noble Drilling Corporation, 232 La. 981, 95 So.2d 627 (though there are decisions

contra which hold that an acceptance is required both in statutory and common-law

dedications, City of Carlsbad v. Neal, #3��C��!3#��!#�8��" !;-��:";�� (��)��)��=��!/�)��5��#%��11 �8��"%"��*�� K��)��)��4��5��


56 N.M. 465, 245 P.2d 384); and (3) where a dedication is by sale of lots with reference to a

plat showing dedications, in which case the weight of authority holds that no acceptance is

necessary, The City of Santa Clara v. Ivancovich, 47 Cal.App.2d 502, 118 P.2d 303. But see

Walton v. City of Clermont, Fla.App., 109 So.2d 403.

[Headnote 3]

The fourth exception is the one we have first noted, that where a dedication is beneficial to

a donee without imposing any burden, acceptance will be presumed as of the date of the

dedication. Smith v. State, supra; Attorney General v. Abbott, supra; Ramstad v. Carr, supra.

See also City of Russell v. Russell County Building and Loan Association, 154 Kan. 154, 118

P.2d 121, and Rice v. Clare County Road Commission, 346 Mich. 658, 78 N.W.2d 651.

[Headnote 4]

The dedication having become complete in 1870, Lake was without authority to resume

control or to limit or curtail the rights of the public to any greater extent than provided in the

terms of the original dedication. Accordingly, the attempted limitation contained in the

covenant in Lake's deeds of 1874 and 1876 were without avail. Attorney General v. Abbott,

supra; Archer v. Salinas City, 93 Cal. 43, 28 P. 839, 16 L.R.A. 145; Shearer v. City of Reno,

36 Nev. 443, 136 P. 705.

[Headnote 5]

Appellants contend that the 1870 dedication was ineffective because the City of Reno was

not incorporated till 1903. This contention overlooks the essential fact that the dedication is

to the public and that the public is an ever-existing grantee, capable of taking a dedication for

public use. Trustees of M. E. Church, Hoboken v. Council of Hoboken, 33 N.J.L. 13. Hence

the existence of a corporation in which to vest the title is not essential. Rutherford v. Taylor,

38 Mo. 315; Cincinnati v. White, 6 Pet. 431, 31 U.S. 431, 8 L.Ed. 452.

(2) Appellants next contend that even if they are bound by the terms of the original

dedication, unaltered ��>�,�0 � �� $�� &6 ��)��'


by Lake's subsequent deeds, such original dedication as a plaza was violated by the

construction upon the dedicated property of the “Hospitality Center.”

[Headnotes 6, 7]

It may first be noted that the city council has the power to determine and declare what are

public uses for the purposes of the city and to provide for the construction, improvement, and

maintenance of city parks and all public places and to make any other public improvements of

any nature. Stats. Nev. 1905, 100; Stats. Nev. 1945, 408, 428; Reno Charter, Art. I, sec. 3,

Art. XII, secs. 10.15, 10.480. The cases are legion in which the courts have been called upon

to determine whether certain structures and improvements have been inconsistent with the

dedication of lands within a city as public squares, parks, and plazas. To discuss them all and

to reconcile with each other many that appear conflicting would not be helpful. Each case

must turn upon its own particular facts. The parcel here dedicated as a plaza comprises some

15,000 square feet in the heart of the City of Reno. The “Hospitality Center” constructed

thereon occupied approximately 1,500 square feet—some one-tenth of the area—in one

corner of the property. It was constructed at the time of the Winter Olympics at Squaw

Valley, to which Reno was the gateway, and its architectural form corresponded to that of the

Nevada Building at Squaw Valley. Its architectural beauty may well have been a matter of

contention. The architect's plans and his sketch of the completed structure were in evidence.

The trial court found “that the construction of the building will not interfere with the

plaintiffs' easement of light, air, and view, if they have such * * * that the construction and

use of such building is a proper and legal use of said public plaza * * * that there is a need for

an Information Center in the City of Reno * * * that said building will be ornamental and will

add to the public use and enjoyment of said plaza. It does not appear from the evidence that

the construction of said Hospitality Center will impair the value of plaintiffs' property. In fact,

it appears quite �� '


probable that the value of all property in question will be enhanced.” These, for the most part,

are factual determinations for which there is substantial support in the record, and with which

we shall not interfere.

As examples of the many cases which have approved the building of various structures

upon lands dedicated to the use of the public for parks, squares, and plazas, see Spires v. City

of Los Angeles, 150 Cal. 64, 87 P. 1026; Mahon v. Luzerne County, 197 Pa. 1, 46 A. 894;

Williams v. Gallatin, 229 N.Y. 248, 128 N.E. 121, 18 A.L.R. 1238; City of Wichita v. Clapp,

125 Kan. 100, 263 P. 12, 63 A.L.R. 478; Dodge v. North End Improvement Ass'n., 189 Mich.

16, 155 N.W. 438; McLauthlin v. The City and County of Denver, 131 Colo. 222, 280 P.2d

1103. We are compelled to reject the appellants' contention that the “Hospitality Center” was

a structure that violated the dedication to public use as a plaza.

[Headnote 8]

It is next contended that as the “Hospitality Center” was built by the Reno Chamber of

Commerce as lessee of the City of Reno and as its main purpose was to attract tourists to the

city as an economic benefit to the city and to sundry businesses and occupations maintained

in the city, its purpose was not the enhancement of the enjoyment of the inhabitants of the

city as a whole and was, therefore, not a public benefit. We gather that appellants feel that

while accumulations of tourists may benefit sundry hotels, motels, restaurants, bars, gambling

casinos, and commercial businesses of various kinds, they add nothing to the public

enjoyment. The argument is without conviction. Encouragement of and offers of hospitality

to tourists are now promoted, as public benefits, in all countries of the world—at least in

those countries where visitors are welcome; and such hospitality may be extended, as here,

through the chamber of commerce. Appellants then rely upon Teacher Building Co. v. City of

Las Vegas, 68 Nev. 307, 232 P.2d 119, as authority for the contention that such attempted

devotion of public property for private use may be enjoined. We have seen that in the instant

case the &6 ��)��'� ��


“Hospitality Center” served a public benefit. In Teacher Building Co. the city had

attempted to vacate 30 feet of an 80-foot street to permit the vacated portion to vest in the

abutting owners and restricting the plaintiff's 80-foot street approach on which they in turn

abutted to a 50-foot street approach. We think the case is clearly distinguishable.

Appellants further contend that because the terms of the public dedication were violated,

there was a reverter to the abutting owners and their successors. We do not reach this point in

view of our holding that the use of the dedicated ground was not a violation of the terms of

the dedication.

We find no error in the court's denial of plaintiffs' complaint for an injunction restraining

the building of what was then the proposed structure.

Affirmed.


____________

��76 Nev. 463, 463 (1960) Miller v. State��

ROOSEVELT MILLER, Appellant, v.


No. 4293

December 9, 1960 357 P.2d 122


Department No. 1.

Prosecution for burglary in the first degree allegedly committed by defendant in taking

goods from a furniture store. From a judgment of the trial court defendant appealed. The

Supreme Court, McNamee, C. J., held that where, during cross-examination of a witness as to

whether he knew the names of the defendant and the two other men with whom the defendant

had allegedly committed the crime, deputy district attorney stated that one of the other

suspects had entered a plea of �� 0 ��,� ��,��


guilty, such conduct was not prejudicial to defendant where court sustained defendant's

objection and ordered the remark stricken from the record and where jury had been later

admonished to disregard the same.

Affirmed.


Roger D. Foley, Attorney General, Jack C. Cherry, District Attorney, Clark County, and

Charles L. Garner, Deputy District Attorney, Clark County, for Respondent.

1. Criminal Law. Where record in prosecution for burglary indicated that trial judge was aware of his legal discretion with

regard to defendant's motion for the exclusion of witnesses, and where record failed to disclose that

defendant was in any manner prejudiced by the ruling, denial of defendant's motion for the exclusion of

witnesses did not constitute error. NRS 48.250, 178.225.

2. Criminal Law. Where, in prosecution for burglary, during cross-examination of a witness as to whether he knew the

names of the defendant and the two other men with whom defendant had allegedly committed the crime,

deputy district attorney stated that one of the other suspects had entered a plea of guilty, but where,

following objection to this remark, court ordered the remark stricken from record and admonished jury to

disregard it, and where jury was later instructed not to consider any offer of evidence rejected by the court

and where court did everything defendant requested in order to cure any error resulting from remark of

counsel, the conduct was not prejudicial.

3. Burglary. Where, in prosecution for burglary, record disclosed that furniture store had been burglarized within an

hour and a half preceding defendant's apprehension, and that some of the articles found in defendant's

possession bore tags of store and similar articles were missing from store, and where assistant manager of

store was able to identify some of articles in evidence as being some of the missing articles, articles

allegedly stolen had been sufficiently identified.

4. Criminal Law. Where, following apprehension of defendant with goods which had allegedly been taken by defendant

and two others from a store, in order to locate a party suspected of receiving stolen goods, defendant was

allowed by police to take the goods to an address, and where, at such address a picture of the goods was

taken, introduction of picture into evidence did not constitute prejudicial error in connecting defendant with

the �� 0 �� <��


arrest of the receiver of stolen goods where picture had been offered to establish custody of the goods

between arrest and the time of trial, and where, in any case, the existence of the arrest of the party for

receiving stolen goods was first shown by defendant's own counsel during cross-examination.

5. Criminal Law. Refusal of trial court to give a requested instruction pertaining to reasonable doubt was not error where

subject matter of such proffered instruction had been given in other instructions. NRS 175.195.

6. Burglary. Evidence was sufficient to sustain conviction for first-degree burglary.

OPINION


Appellant was convicted of burglary in the first degree by jury verdict and under the

judgment of the court was sentenced to a term in the state prison of not less than one nor

more than three years. Appeal is from such judgment and from the order denying his motion

for a new trial.

On March 27, 1959 at 11:00 p. m., Sgt. Goerke of the Nevada State Patrol noticed a

Cadillac automobile parked near the corner of Mesquite and 23rd Streets in Las Vegas,

Nevada. A television set was on the ground nearby and a man was bending over the front of

the car. Goerke drove around the block, summoned the police, and on returning to the scene

he noticed the Cadillac was traveling about a block away without lights. He overtook the car,

had the three occupants who were identified as appellant Miller, Albert Henderson, and

William McDonald get out, and he then awaited the police. Upon the arrival of the police, the

said three occupants were arrested. In the automobile an adding machine, a typewriter, two or

three television sets, and a new camera were found. The tags on some of these articles

indicated that the merchandise was from McMahan's Furniture Store, Las Vegas, Nevada. At

11:30 p. m. of the same evening, the police went to said furniture store and ascertained that

the glass part of the rear door had been broken, making easy access into ��


the store possible. An hour and a half earlier, the door had been intact. Appellant admitted

that he and McDonald, in company with Henderson, had picked up a television set from the

back of a building about a block from the 100 block of North Ninth Street (the back of

McMahan's Furniture Store was located in the 100 block of North Eighth Street), and had

loaded it and other items into the Cadillac and then the car was driven to 23rd Street. An

investigation by the assistant manager of the furniture store disclosed that three television

sets, two typewriters, and several pieces of camera equipment were missing. Some of the

articles found in the Cadillac were identified as some of the articles missing from the store.

The specifications of error are considered separately.

[Headnote 1]

1. Upon completion of the selection of the jury and before the introduction of any

evidence, appellant's counsel made a motion for the exclusion of witnesses. Error is claimed

in the denial of said motion. As pointed out in Rainsberger v. State, 76 Nev. 158, 350 P.2d

995, this state has no statutory requirement for the exclusion of witnesses in criminal actions.

Appellant contends however that NRS 178.225 1 makes applicable to criminal actions NRS

48.250 which provides for the exclusion of witnesses during civil trials. NRS 178.225 refers

to evidence in civil actions and not to procedure; consequently it has no application to NRS

48.250, a procedural statute.

Even if there is no statute requiring exclusion of witnesses upon motion in criminal cases,

appellant states that the trial judge had discretion in the matter, and when he denied the

motion without giving any reason for his ruling, he failed to exercise his discretion. We are

not convinced by this argument. It appears from the record that the trial judge in denying the

motion was aware of his legal discretion in the matter but �� ,��

____________________

1

NRS 178.225: “The rules of evidence in civil actions shall be applicable also to criminal actions, except as

otherwise provided in this Title.”


found no sufficient reason for invoking the rule of exclusion. Appellant fails to point out, and

indeed an examination of the record fails to disclose, that appellant was in any manner

prejudiced by said ruling.

[Headnote 2]

2. Misconduct of Deputy District Attorney Garner prejudicial to the substantial rights of

appellant is asserted.

During the cross-examination of one of the state's witnesses, appellant's counsel asked the

witness whether he knew the names of the three suspects.

“A. I read the names on a report.

“Q. McDonald was arrested along with the defendant, Roosevelt Miller, was he not? A.

That is what I read in the report, sir.

“By Mr. Garner: Your honor, I think the record will speak for itself. William Clifford

McDonald has entered a plea of guilty.”

Appellant's counsel immediately objected to this remark of Mr. Garner. The court

sustained the objection and ordered the remark stricken from the record. Upon appellant's

request the court admonished the jury to disregard the same.

It is to be noted that appellant did not ask for a mistrial, and that the court did everything

appellant requested in order to cure any error resulting from the remark of counsel.

Furthermore, in the final written instructions, the jury was instructed not to consider any offer

of evidence rejected by the court and to base its finding and decision only upon the evidence

admitted at the trial. Under these circumstances the asserted misconduct was not prejudicial.

In fact it might be argued that such a remark would be beneficial to the appellant as indicating

that McDonald alone had committed the burglary.

[Headnote 3]

3. Error is claimed in the admission in evidence of the articles assertedly stolen, upon the

ground that they were not sufficiently identified. The record discloses that McMahan's

Furniture Store had been burglarized within ��0 �� -�� C�C��0 �� -�� C�C��0 � ��


the hour and a half preceding the appellant's apprehension; that some of the articles found in

his possession, i.e., in the joint possession of all three suspects, bore McMahan's tags; and

that similar articles were missing from McMahan's store. The assistant manager of the store

was able to identify some of the articles in evidence as being some of the missing articles. We

find no merit to this claim of error.

[Headnote 4]

4. Appellant claims that the trial court erred in receiving in evidence Exhibit Q which was

a photograph of the articles impounded upon the apprehension of appellant. In order to locate

a party suspected of receiving stolen goods, the articles were placed in the Cadillac

automobile and taken by McDonald, who was released from custody for this purpose, to a

Utah Street address where the suspected recipient appeared and was arrested. After the arrest,

the photograph, Exhibit Q, was taken.

The purpose of the introduction of Exhibit Q was solely to perfect the chain of custody of

the stolen articles from the time of their theft and of their recovery thereafter to the time of

the trial, in order to prove identity of the articles. This was not an attempt to show the

commission of another crime by appellant as occurred in Nester v. State, 75 Nev. 41, 334

P.2d 524. In fact, the evidence showed that appellant was not involved in this second episode.

The exhibit was relevant to the issue of identity of the goods, and any prejudice which might

have resulted to appellant by proof of the apprehension of another person suspected of a

criminal offense was incidental. Furthermore, because the existence of the second arrest was

first shown by appellant's counsel during the cross-examination of a state witness who was

called in connection with the identification of the said articles recovered from appellant, he

cannot now assert prejudicial error if any there was. Appellant has failed to point out in what

manner the reception in evidence of Exhibit R, which was a list of the items shown ��?��Q��


in Exhibit Q and identified as such, was prejudicial, although such exhibit may well have

been immaterial.

[Headnote 5]

5. Appellant assigns as error the court's refusal to give its requested instruction pertaining

to reasonable doubt and the giving of certain instructions pertaining to the unexplained

possession of recently stolen property. An examination of the 44 instructions given reveals

that the subject matter of said proffered instruction was given, and given in the only manner

permitted by statute. NRS 175.195. The instructions as given were all based on correct

propositions of law as applied to the particular evidence in this case.

[Headnote 6]

6. We have concluded from the record that the evidence therein was sufficient to identify

some of the property in the possession of appellant at the time of his arrest to be property of

McMahan's Furniture Store, which property had been stolen within an hour and a half before

such apprehension; that the theft was accomplished by a breaking and entering into the

building housing said furniture store; that the oral admission against interest of appellant

placed him at the scene of the entry shortly after the breaking into the building had taken

place; and that the size and character of the stolen articles warrants a conclusion that all three

suspects had participated in the breaking and entering. All of the evidence was for the

consideration of the jury, and it was within their sole province to determine whether they

were convinced by the evidence of appellant's guilt of the offense charged beyond a

reasonable doubt.

No prejudicial error appearing, the judgment and order denying the motion for a new trial

are affirmed.


____________

��76 Nev. 470, 470 (1960) Hickok v. Turner��

JOHN F. HICKOK and HELEN HICKOK, His Wife, and ZACK S. ZETOONEY and

CATHERINE E. ZETOONEY, His Wife, Appellants, v. LILLIAN TURNER, Respondent.

No. 4300

December 12, 1960 357 P.2d 595

Appeal from order of the Second Judicial District Court, Washoe County; Grant L.

Bowen, Judge, Department No. 1, denying appellants' motion for new trial.

Action by an assignee of a tenant to recover from landlord prepaid unearned rentals on

leased premises which were destroyed by fire. The trial court entered judgment for plaintiff

and landlords appealed. The Supreme Court, Badt, J., held that where lease provided that in

the event landlords did not terminate and end the lease by written notice, the rental provided

for would abate from the date of a fire until the date premises were restored to a specified

condition, and the leased premises were destroyed when the lease had three months to run,

and the building was not rebuilt within such period, prepaid and unearned rent for such three

months was recoverable by tenant, even though landlords did not notify tenant of whether

they elected to terminate the lease or restore the premises.

Affirmed.

Guild, Busey & Guild, of Reno, for Appellants.

Emile J. Gezelin, of Reno, for Respondent.

1. Landlord and Tenant. Where lease provided that in the event landlords did not terminate and end the lease by written notice, the

rental provided for would abate from the date of a fire until the date premises were restored to a specified

condition, and the leased premises were destroyed when the lease had three months to run, and the building

was not rebuilt within such period, prepaid and unearned rent for such three months was recoverable by

tenant, even though landlords did not notify tenant of whether they elected to terminate the lease or restore

the premises.

2. Landlord and Tenant. Where no damage resulted to landlords by reason of purported closing of leased premises by the city, due

to failure ��

��


of tenant to obtain a license, in accordance with the terms of the lease, and landlords were paid rentals for

every month of the lease except three months which followed destruction of the premises by fire, landlords

were not entitled to retain such rental as liquidated damages for such breach of the lease.

OPINION


The question presented is the right of a lessee to recover from his lessors prepaid unearned

rentals on the leased premises which had been destroyed by fire. Action for recovery of these

rentals was filed by the assignee of the original lessee. Such assignee is herein referred to as

the lessee. The question is resolved by a construction of the written lease. It provided for the

payment by the lessee to the lessors of $2,400, being six months' rental at $400 a month, to

apply, respectively, on the first and last five months' rent. The payment was to assure

performance of the terms of the lease. The lease contained the covenants set forth in the

margin. 1

On June 29, 1957 the building was destroyed by fire. At that time three months remained

of the lease term, ��+��5�� 12#/��.1��%%��.��!%%��

____________________

1

“It is further agreed that in the event during the term of this lease said premises or the improvements thereon

are damaged or are destroyed by fire * * * to such an extent that Lessors' insurance settlement or recovery is

insufficient to pay in full for all repairs necessary to restore said premises to their former condition and also to

pay in full for all additions, repairs, improvements, or alterations then required by any municipal ordinance, * * *

the Lessors hereby reserve the right to immediately at their sole option terminate, cancel and end this lease upon

written notice to Lessees and thereupon to release Lessees from the payment of further rent thereafter. In the

event such written notice is given to Lessees by Lessors and this lease thereupon terminated, and in the further

event Lessors thereafter repair or reconstruct said premises, the Lessees shall have the first option to acquire a

new lease upon said premises * * *. In the event Lessors do not so terminate and end this lease by such a written

notice the rental provided for herein shall abate from the date of such fire until the date the premises are restored

to the condition hereinabove specified.

“It is further agreed that in the event during the term of this lease said premises or the building in which the

same are situated or either of them are condemned by municipal or State authorities for any cause or reason that

this lease upon such condemnation shall terminate and Lessees shall be under no further obligation to pay rent

hereunder and Lessors shall upon such condemnation be relieved of any further obligation to Lessees under this

lease.”


namely July, August, and September 1957, and $1,200 of the $2,400 guaranty was held by the

lessors. On July 2, 1957 the lessee wrote the lessors requiring them to notify her whether they

elected to terminate the lease or restore the premises. On July 8 the lessors replied that they

had not yet been able to ascertain whether the insurance settlement would permit them to

rebuild, and were not yet in position to decide whether or not to exercise the option to

terminate. On July 18 the lessee again asked for a prompt reply. On September 24 the lessors

wrote that the city council of the City of Reno ordered the building demolished and that the

lessors had contracted for this work to commence on October 1. On October 14 the lessee

demanded return of the $1,200 unearned rental. This having been refused, the lessee sued and

obtained judgment for the $1,200.

At the trial defendants showed that the insurance settlement was not made until October 1.

The insurance recovered was $103,000, and appellants testified that it would require about

$200,000 to restore the premises in such manner as to comply with the city's building code

requirements.

[Headnote 1]

Appellants specify no errors other than the trial court's alleged misconstruction of the

lease. They contend that as the lease reserved the option only to the lessors to terminate the

lease in event of a fire which damaged the premises to such extent that the insurance recovery

should be insufficient to restore the premises, they could not be required to exercise their

option until the amount of insurance recovery was determined. Appellants then argue as

follows:

“Under the condemnation clause of the lease, the lease terminates upon condemnation and

the lessee is under no further obligation to pay rent and the lessors are relieved of any further

obligation on their part. This would relieve lessors of any obligation to give or not to give any

notice under the fire clause. Since the monthly rental is due on the first day of the month

under the terms of the lease the lessors would apply the last .!%%�%%��1��12#/��


$400.00 held by them to the September 1, 1957, rental payment, and under the fire clause no

further rental obligation exists. At most, Turner would be entitled to a rental rebate for the

last seven days of September or the sum of $93.33.”

The position taken by the appellants is untenable. The governing provision here applicable

is the following: “In the event Lessors do not so terminate and end this lease by such a written

notice the rental provided for herein shall abate from the date of such fire until the date the

premises are restored to the condition hereinabove specified.”

The building was destroyed when the lease had three months to run. The prepaid and

unearned rent for these three months was properly adjudged by the trial court to be

recoverable by the lessee.

[Headnote 2]

Appellants further contend that the premises were operated for three months, namely,

January, February, and March 1957 without a license; that it was closed by the city on April

10, 1957 and never reopened; that this was a violation of the city ordinance and a failure to

perform the terms of the lease; and that for such reason the lessors were entitled to retain the

$1,200 as liquidated damages. No damage resulted to the lessors by reason of the facts

recited. The lessors were paid rental for every month of the lease except for the last three

months, which followed the destruction of the premises by fire. Nor did the lessors even

suffer any loss of rental on that account, as the insurance they received included their loss of

rental for those three months.

The judgment is affirmed.


____________

��76 Nev. 474, 474 (1960) Stokes v. State��

HOMER RAY STOKES, Appellant, v. THE


No. 4247

December 14, 1960 357 P.2d 851

Appeal from order of the First Judicial District Court denying motion for new trial,

Douglas County; Peter Breen, Judge Presiding.

Defendant was convicted in the trial court for using cheating device on slot machines, and

motion for new trial was denied, and defendant appealed. The Supreme Court, Badt, J., held

that notwithstanding statutory provision making it unlawful for any person to operate any slot

machine without having first procured and thereafter maintaining all required federal, state,

county, and municipal gaming licenses, under statute making it unlawful for any person to

employ or have on his person any cheating device to facilitate cheating in playing any slot

machine, conviction could be obtained without showing that slot machines were licensed by

federal government.

Affirmed.


Harry A. Busscher, of Reno, for Appellant.

Roger D. Foley, Attorney General, and Carl F. Martillaro, District Attorney, for

Respondent.

1. Fraud. The words “licensed gambling game,” as used in statute making it unlawful for any person playing any

licensed gambling game to employ or have on his person any cheating device to facilitate cheating in such

games or in playing any slot machine, were not carried forward to unlawful act of using or having cheating

device to facilitate cheating in playing any slot machine. NRS 465.080.

2. Indictment and Information. Words chosen, from various alternative acts declared by statute to be unlawful, as sort of embellishment

to information charging employment of cheating device in playing licensed slot machines, might be

disregarded as surplusage. NRS 465.080.

3. Fraud. Information sufficiently charged violation of statute making it unlawful for any person to employ or have

on his person ��


any cheating device to facilitate cheating in playing any slot machine. NRS 465.080.

4. Fraud. Notwithstanding statutory provision making it unlawful for any person to operate any slot machine

without procuring and maintaining, all required federal, state, county, and municipal gaming licenses,

under statute making it unlawful for any person to employ or have on his person any cheating device to

facilitate cheating in playing any slot machine, conviction could be obtained, for using cheating device on

slot machines, without showing that slot machines were licensed by federal government. NRS 463.160,

465.080; 26 U.S.C.A. (I.R.C. 1954) §§ 4461, 4462, 4901, 6806, 7011.

OPINION


[Headnote 1]

This appeal calls for a construction of NRS 465.080 making it a gross misdemeanor to use

various cheating devices in playing certain gambling games, slot machines, etc. The section

in question, NRS 465.080, describes in the alternative a number of acts, each of which is

declared to be unlawful. That part with which we are here concerned reads as follows: “It

shall be unlawful for any person * * * to employ or have on his person any cheating device to

facilitate cheating in such games or in playing any slot machine, lawful vending machine,

coin box, telephone or other receptacle * * *.” The entire section is printed in the margin. 1 It

is apparent to us that the words used in the initial clause thereof, to wit, “licensed gambling

game” are so detached �� $��

____________________

1

“1. It shall be unlawful for any person playing any licensed gambling game to use bogus or counterfeit

chips, or to substitute and use in any such game cards or dice that have been marked, loaded or tampered with,

or employ or have on his person any cheating device to facilitate cheating in such games or in playing any slot

machine, lawful vending machine, coin box, telephone or other receptacle designed to receive or be operated by

lawful coin of the United States of America in furtherance of or in connection with the sale, use or enjoyment of

property or service, to use other than lawful coin, legal tender of the United States of America, not of the same

denomination as the coin intended to be used in such device, or to use or have on his person any cheating or

thieving device to facilitate removing from any slot machine, lawful vending machine, coin box, telephone or

other receptacle any part of the contents thereof.”


from the alternative acts declared to be unlawful that the words we have italicized are not

carried forward to the particular unlawful act that we have first quoted.

The information charged that appellant “did willfully and unlawfully use a cheating

device, to wit, a metal instrument to facilitate cheating in playing slot machines, and did

employ said cheating device in playing licensed slot machines, located in the Nevada Club, in

Tahoe Township, Douglas County, State of Nevada.”

[Headnote 2, 3]

It is apparent that the draftsman of the information chose, from the various other

alternative acts declared by the section to be unlawful, a word here and there as a sort of

embellishment. The surplusage may be disregarded. State v. Murray, 67 Nev. 131, 215 P.2d

265, 216 P.2d 606; Bridges v. United States, 346 U.S. 209, 73 S.Ct. 1055, 97 L.Ed. 1557;

Vanderhorst v. State, 151 Fla. 620, 10 So.2d 138. Without such surplusage the offense

described in the alternative above quoted is clearly charged.

[Headnote 4]

Appellant contends that NRS 465.080, however, must be read in connection with other

sections; that under the section itself a conviction cannot be had without a showing that the

cheating device was used on licensed slot machines; that the state recognized this in including

it in the information; that other sections deal specifically with the nature of the licenses

required; that although it is conceded that the state proved that the slot machines in question

were duly licensed by the state and county, there was no proof that they were licensed by the

federal government. We hold that these contentions are without merit.

It is conceded that appellant and one Richard Charlesworth were apprehended and placed

under arrest for using a cheating device on slot machines at the Nevada Club and that

appellant was in company with said Charlesworth and that a common plan or scheme existed�� )�� 0 �� )�� 0 ��


between them as far as Charlesworth's actions were concerned and that appellant became a

principal to Charlesworth's use of a cheating device on slot machines. It is contended only

that there was a fatal lack of proof of a federal license and that such license is specifically

required under the provisions of NRS 463.160, making it unlawful for any person to operate

any game or slot machine as theretofore defined “without having first procured, and thereafter

maintaining in full force and effect, all federal, state, county and municipal gaming licenses

as required by statute or ordinance or by the governing board of any incorporated city or

town”; and that pursuant to the provisions of the Federal Internal Revenue Code every person

maintaining a coin-operated gaming device must pay a special tax; that he is required to

register with the collector of his district; that he may not be engaged in or carry on any trade

or business thus described until he has paid a special tax therefor in the manner provided; that

he must post in his establishment stamps denoting the payment of such special tax; and that

these federal requirements existed prior to the enactment of NRS 465.080. Internal Revenue

Code 1954, as amended. 26 U.S.C.A. secs. 4461, 4462, 4901, 6806, 7011.

In short, it is appellant's contention that nothing in the Nevada statute makes it unlawful to

use a cheating device on an unlicensed slot machine, but only on a slot machine licensed by

the state, county, local government, and federal government. We reject this contention also,

so far as it applies to the particular act alternately described in the section as unlawful.

NRS 463.020 1 (o) provides: “‘License' or ‘gaming license' means any license issued by

the state or any political subdivision thereof pursuant to this chapter * * *.”

This would appear to be in conflict with NRS 463.160 above quoted if the federal tax may

be considered a federal gaming license. It is clear, however, that the federal tax is not a

license. It is operative in all states, ��


including not only Nevada, where gambling and the maintenance of slot machines are lawful,

but in all states where such operations are unlawful. Appellant does not contend, nor could he

logically contend, that the payment of the federal tax and the possession of the federal stamps

evidencing such payment and proof of registration with the local director of internal revenue

would or could authorize the maintenance of gambling or of slot machines in states declaring

such operations unlawful. We therefore conclude that compliance with the federal

requirements would not result in a gaming or slot machine “license” from the federal

government, and that it was not necessary for the state to charge or prove the same.

The point discussed is included in appellant's assignments of error with reference to

instructions given, instructions refused, denial of motion for instructed verdict, and rulings on

evidence, but they all apply to the same contention.

The judgment and order denying motion for new trial are affirmed.


____________

��76 Nev. 478, 478 (1960) Ex Parte Hutchinson��

In the Matter of the Application of ROBERT O.

HUTCHINSON for a Writ of Habeas Corpus.

No. 4371

December 16, 1960 357 P.2d 589

Original proceeding. Application of Robert O. Hutchinson for a writ of habeas corpus.

Original habeas corpus proceeding brought on contention that there had been insufficient

evidence presented to magistrate to justify his action in holding petitioner to answer for crime

of burglary charged in a presentment. The Supreme Court, McNamee, C. J., held that �� 0 ��


where only evidence that burglary had been committed and only evidence that accused was

involved in commission thereof adduced before magistrate was testimony of admitted

coconspirator and other testimony adduced did not in any respect corroborate the admitted

coconspirator's testimony that accused was connected with offense or that burglary had been

committed and other testimony would at most be evidence that a larceny had been committed,

magistrate was without authority to bind accused over for trial and accused was entitled to

release.

Writ granted, and petitioner ordered to be discharged from custody.

Gordon L. Hawkins and George M. Dickerson, of Las Vegas, for Petitioner.

Roger D. Foley, Attorney General, John F. Mendoza, District Attorney, Clark County, and

John Spann, Deputy District Attorney, Clark County, for Respondent.

1. Habeas Corpus. Where only evidence that burglary had been committed and only evidence that accused was involved in

commission thereof adduced before magistrate was testimony of admitted coconspirator and other

testimony adduced did not in any respect corroborate the admitted coconspirator's testimony that accused

was connected with offense or that burglary had been committed and other testimony would at most be

evidence that a larceny had been committed, magistrate was without authority to bind accused over for trial

and accused was entitled to release on habeas corpus. NRS 175.265, subd. 1.

2. Habeas Corpus. Writ of habeas corpus will issue to end that petitioner will not be compelled to undertake burden of trial

where evidence before committing magistrate is legally insufficient to indicate that he is guilty of any

offense.

OPINION


This is an original petition for a writ of habeas corpus.

A presentment was found against petitioner by the ��)��,�)��


grand jury of Clark County charging him with burglary in the first degree. Pursuant thereto

petitioner was brought before the Honorable David Zenoff, Judge of the Eighth Judicial

District Court, sitting as a magistrate, who proceeded to examine the charge contained in the

presentment. From the evidence adduced, petitioner was bound over for trial.

The only question before us is whether or not sufficient evidence was presented to said

magistrate to justify his action in holding petitioner to answer for the crime charged in the

presentment.

Alfred E. Mazzucca testified that on March 29, 1957, he and petitioner Hutchinson were

police officers of the city of Las Vegas. At about 11:00 p. m. of that particular day, he and

Hutchinson checked out of the patrol car in which they had been riding, leaving the car at

1100 Fremont Street. They proceeded to the Wright-Marinello Beauty Salon located at 1106

Fremont Street. They shook the back door, slipped the lock 1 with a knife, the door opened,

and they entered. They entered “to see what we could steal.” Thereupon they took numerous

articles consisting of cosmetics, towels, and two hair driers which they put in a suitcase found

in the establishment.

Subsection 1 of NRS 175.265 provides:

“A conviction shall not be had on the testimony of an accomplice, unless he is

corroborated by other evidence which in itself, and without the aid of the testimony of the

accomplice, tends to connect the defendant with the commission of the offense; and the

corroboration shall not be sufficient if it merely shows the commission of the offense or the

circumstances thereof.”

It is conceded Mazzucca should be regarded as an accomplice.

In order to comply with said statute the following corroborating evidence was introduced.

Nellie Cornwell testified that on March 29, 1957 she was an employee of

Wright-Marinello Beauty Salon ��11%3�4��

____________________

1

“Well, there is certain types of doors that you can, with a pen knife, you can slide in between the latch and

push it back, push the lock back into the door and the door will open.”


located at 1106 Fremont. On that day she was taking inventory of the merchandise in the

shop. On the following day she rechecked some of the merchandise and noticed articles

missing, consisting of cosmetics, a hair drier, suitcase, scissors, etc.

“Q. After you called the police what did you do or what happened? A. Well, the police

came and there was no sign of a disturbance, of breaking into the shop and how they could

have gotten in only by picking the lock, that was the only sign.

“Q. Now, you stated that you and the policemen examined the shop, is that correct? A.

Yes.

“Q. And you have also stated that you could find no evidence of breaking into the shop, is

that correct? A. Yes.”

Exhibit A in evidence is the burglary report given by Nellie Cornwell over her signature.

In it, the following form questions and her answers thereto appear:

Type of Premises Entered: 1 story beauty salon.

Entered Through: Possibly rear door.

Instrument Used: Unknown.

Method Used to Gain Entrance (Broke Glass, Cut Screen, Broke Lock, Cut Made in Roof,

etc.): Possibly door unlocked. No signs of entry made. Suspect possibly a key, and was an

open door.

Sergeant Martin Boyce testified that he was dispatcher and desk sergeant for the Las Vegas

Police Department on March 29, 1957. His work sheet or log showed that Mazzucca and

Hutchinson worked together that evening and that the Wright-Marinello Beauty Salon was in

their work district. The log disclosed that Mazzucca and Hutchinson checked out of their car

in the vicinity of the beauty shop at 11:03 p. m. and checked back in at 11:23 p. m. This was

usual procedure.

With only this evidence of corroboration the magistrate bound petitioner over for trial.

[Headnote 1]

The only evidence of a burglary having been committed is the testimony of Mazzucca, and

the only evidence that petitioner was involved in the commission �� ,�� C�$$��


of a crime was likewise the testimony of Mazzucca. Nellie Cornwell's testimony and written

report are totally devoid of a wrongful entry and at most would be evidence of a larceny. The

testimony of Sergeant Boyce placed the petitioner at the scene of the alleged offense at a time

corresponding with the testimony of Mazzucca, but both officers were in that vicinity in the

performance of their ordinary police duties and not under any suspicious circumstances.

As there was no corroboration whatever of Mazzucca's testimony either connecting

petitioner with the commission of any offense or that a burglary had been committed, the

committing magistrate was without authority to bind over petitioner for trial. Ex Parte

Sullivan, 71 Nev. 90, 280 P.2d 965; In Re Oxley and Mulvaney, 38 Nev. 379, 149 P. 992.

[Headnote 2]

In Nevada the writ of habeas corpus will issue to the end that petitioner will not be

compelled to undertake the burden of a trial where the evidence before the committing

magistrate is legally insufficient to indicate that he is guilty of any offense. Eureka County

Bank Habeas Corpus Cases, 35 Nev. 80, 126 P. 655, 129 P. 308.

The petitioner will stand discharged.


____________

��76 Nev. 483, 483 (1960) Rea v. City of Reno, Et Al.��

FRANCIS C. REA, JR., KEITH HENRIKSON, WILLIAM F. DAVIS, JAMES R. NEIL,

ROBERT CAVAKIS, and LESLIE McGINNIS, Appellants, v. THE MAYOR, CITY

MANAGER, and CITY COUNCIL, as the Governing Body of the CITY OF RENO,

NEVADA, and BUD BAKER, KENNETH BROWN, GEORGE CARR, JOHN

MARSHALL, JOSEPH MASTROIANNI, DICK DIMOND, and CHARLES COWEN,

Constituting the Members of Said Governing Body, Respondents.

No. 4382

December 16, 1960 357 P.2d 585


Department No. 2.

Petition for mandamus to require governing body of a municipality to adopt certain

amendments to the city charter contained in a verified initiative petition containing an excess

of 60 percent of the registered voters of the city. The trial court dismissed the petition and an

appeal was taken. The Supreme Court, McNamee, C. J., held that statute providing that upon

the filing of a verified petition bearing the signatures of not less than 60 percent of the

registered voters of a city praying for the adoption of any amendment set forth in the petition,

the governing body of such city shall adopt such amendment by resolution without further

proceeding, was unconstitutional in that it exceeded power granted the legislature to provide

by law for the manner of exercising initiative and referendum powers, by failing to provide

for an election of proposed charter amendments.

Affirmed.


Badt, J., dissented.

Roger Bissett, of Reno, for Appellants.

Roy Lee Torvinen, City Attorney, of Reno, for Respondents.


1. Constitutional Law. Although provisions of section of the constitution providing for initiative and referendum powers are

self-executing with reference to state matters, they are not self-executing with reference to county or

municipal matters. Const. art. 19, sec. 3.

2. Municipal Corporations. The initiative power given to the electors of a municipality by the constitution, with respect to municipal

legislation, is the power to propose laws which thereafter must be enacted or rejected at the polls, as

distinguished from a power which would effect a legislative act without an election. Const. art. 19, sec.

3.

3. Statutes. “Initiative” is the power of the people to propose bills and laws and to enact or reject them at the polls,

independent of the legislative assembly.

4. Municipal Corporations. Statute providing that upon the filing of a verified petition bearing the signatures of not less than 60

percent of the registered voters of a city praying for the adoption of any amendment set forth in the

petition, the governing body of such city shall adopt such amendment by resolution without further

proceeding, was unconstitutional in that it exceeded power granted the legislature to provide for the manner

of exercising initiative and referendum powers, by failing to provide for an election of proposed charter

amendments. NRS 268.010, subd, 1; Const. art. 19, sec. 3.

OPINION


The sole question necessary for decision in this appeal is whether paragraph b, subsection

1, NRS 268.010, violates Art. 19, sec. 3, of the Nevada Constitution.

Art. 19, sec. 3, of the Nevada Constitution provides for the initiative and reads in part as

follows: “The people reserve to themselves the power to propose laws * * * and to enact or

reject the same at the polls, independent of the legislature. * * * The initiative and

referendum powers in this article provided for are further reserved to the qualified electors of

each county and municipality as to all local, special and municipal legislation of every

character in or for said respective counties or municipalities. The legislature may provide by

law for the manner of exercising the initiative and �� 1%��:1%J;�� 1#��:1#J;�� '


referendum powers as to county and municipal legislation, but shall not require a petition of

more than 10 per cent (10%) of the qualified electors to order the referendum, nor more than

15 per cent (15%) to propose any municipal measure by initiative.”

[Headnote 1]

Although the provisions of said sec. 3 are self-executing with reference to state matters,

they are not self-executing with reference to county and municipal matters. Beebe v. Koontz,

72 Nev. 247, 302 P.2d 486.

Paragraph b, sec. 1, NRS 268.010, is an attempt by the legislature to exercise the

constitutional power given it by said sec. 3 to provide for the manner of exercising the

initiative and referendum powers with respect to county and municipal legislation. Said

paragraph b reads as follows:

“Upon the filing of a verified petition bearing the signatures of not less than 60 percent of

the registered voters of the city or town, as certified by the clerk of the county wherein the

city or town is located, praying for the adoption of any amendment or amendments fully set

forth in such petition, and exhibited to each of such signers prior to the signature being

affixed thereto. The signatures need not all be appended to one paper, but each signer shall

add to his signature his place of residence. One of the signers of each such petition shall

swear that the statements therein made are true to the best of his knowledge and belief.

“Upon the filing of any such petition bearing the required number of signatures, duly

verified and setting out therein the amendment or amendments proposed, the governing body

of such city or town shall adopt such amendment or amendments by resolution without

further proceeding.”

Pursuant to said paragraph b, a verified petition containing in excess of 60 percent of the

required signatures praying for the adoption of certain amendments to the charter of the City

of Reno was filed with the city clerk of the City of Reno. Thereafter respondents refused to

adopt the said amendments. Action was commenced in ��


the court below for a writ of mandamus to compel the adoption of said amendments. Upon

the lower court's dismissal of the petition for mandamus this appeal was taken. In our

opinion, the legislature in enacting NRS 268.010 went beyond the said powers granted to it

by the constitution, because it failed to provide therein for the submission of proposed charter

amendments to the decision of the voters at the polls.

[Headnotes 2-4]

The initiative power provided for by the constitution as aforesaid is reserved to the

qualified electors of each municipality. That power is expressly defined as “the power to

propose laws

* * * and to enact or reject the same at the polls, independent of the legislature.” It is clear to

us from the definition of the power reserved as quoted above that the constitution does not

contemplate the initiative without a ballot. In other words, the initiative power given to the

electors of a municipality with respect to municipal legislation is no different from the

initiative power given to the people as a whole with respect to state matters. This power

consists of the power to propose laws which thereafter must be enacted or rejected at the

polls as distinguished from a power which would effect a legislative act without an election.

This conclusion results not only from our constitutional provisions but also from the

definitions of “initiative” found in reputable publications. Black's Law Dictionary defines

“initiative” as “the power of the people to propose bills and laws and to enact or reject them

at the polls, independent of the legislative assembly.” The same definition is found in 82

C.J.S., Statutes, sec. 115. In 1 Bouvier's Law Dictionary, Rawle's Third Revision, p. 1569

“initiative” “is the right of a specified number of the electorate to unite in proposing laws to

the legislative body, which, after due consideration must submit the same to the vote of the

people for their approval or disapproval.”

Appellants contend that Caton v. Frank, 56 Nev. 56, 44 P.2d 521, is controlling of the

issues here submitted. In that case a statute similar to said paragraph b �� )��


received the attention of this court in a case where a writ of mandamus was sought to compel

the governing body of the City of Reno to act upon a petition to amend the city charter. It was

asserted that subdivision 2 of section 1257, NCL 1929 (now paragraph b, subsection 1, NRS

268.010) was unconstitutional in that it was in conflict with section 8 of article 8 of the

Constitution of the State of Nevada 1 in permitting an amendment of a city charter by the

filing of a petition signed only by a percentage of qualified voters, 2 because said section 8 of

article 8 contemplates the amendment of a city charter only by an election held for that

purpose at which all of the electors are permitted to express their choice by vote. This court

did not agree with said contention but held “that the legislature may under the powers granted

by the said section 8 of article 8, provide any reasonable and uniform method whereby the

qualified voters of a city may, by a majority, express a desire to amend such charter, as by a

proper petition signed by sixty percent of the qualified voters, as is provided by said

subdivision 2 of said section 1257, NCL 1929, which we hold, is not in conflict with said

provision of the constitution.” The writ was denied however because this court concluded that

petitioners had failed to bring themselves within the terms of said subdivision 2. Although it

was argued by respondents 3 that said subdivision 2 was in violation of Art. 19, sec. 3, of the

Nevada Constitution, the concluding paragraph of the opinion reveals that the court felt it

unnecessary to

____________________

1

Art. 8, sec. 8: “Municipal corporations formed under general laws. The legislature shall provide for the

organization of cities and towns by general laws and shall restrict their power of taxation, assessment, borrowing

money, contracting debts and loaning their credit, except for procuring supplies of water; provided, however,

that the legislature may, by general laws, in the manner and to the extent therein provided, permit and authorize

the electors of any city or town to frame, adopt and amend a charter for its own government, or to amend any

existing charter of such city or town.”

2

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

contains the words “registered voters.”

3

This argument of respondents appears only in the official report of Caton v. Frank found in 56 Nev. 56, 59.


decide the point. We therefore conclude that the Caton case is not controlling of the issues

here submitted.

In the Caton case the court said that in view of the fact that the petition was insufficient to

justify the issuance of the writ as prayed for it would be unnecessary to decide the other

points raised. For the same reason it was unnecessary for the court to decide whether the

statute was unconstitutional under Art. 8, sec. 8. However, Art. 8, sec. 8, in our opinion is not

inconsistent with Art. 19, sec. 3. Even if it were, Art. 19, sec. 3, with a later date of adoption

is controlling. Farrar v. Board of Trustees, 150 Tex. 572, 243 S.W.2d 688; Pressley v.

Industrial Commission, 73 Ariz. 22, 236 P.2d 1011; Opinion to the Governor, 78 R.I. 144, 80

A.2d 165.

The respondents acted properly in failing to adopt by resolution the legislation contained

in the petition, because we have concluded that such action would constitute a procedure

violative of Art. 19, sec. 3, of our constitution. The lower court, therefore, properly dismissed

the petition for writ of mandamus.

Affirmed.

Pike, J., concurs.

Badt, J., dissenting:

I dissent.

It is my opinion that the presumption of constitutionality has not been overcome. Of the

many cases approving such presumption, no case in this state seems to have expressed it more

strongly than Hess v. Pegg, 7 Nev. 23 (5-6-7 Nev. 715, 721). This court there said:

“For this court to oppose its judgment to that of the legislature, excepting in a case

admitting of no reasonable doubt, would not only be contrary to all well considered

precedent, but would be an usurpation of legislative functions. It cannot be denied that the

tendency in some states of this union is that way, undoubtedly from good motives; but the

sooner the people learn that every act of the legislature not found to be in ‘clear, palpable and

direct conflict with the written constitution,' must be sustained by the courts, the sooner they�� P�� 0��


will apply the proper correction to unjust or impolitic legislation, if such there be, in the more

careful selection of the members of that branch of the state government to which they have

delegated and in which they have vested the ‘legislative authority' of this state. No court

should, and this court will not, step out of the proper sphere to undo a legislative act; and

therein, no court should, and this court will not, declare any statute void because

unconstitutional, without clear warrant therefor.”

It seems to me that sec. 8 of Art. 8 of the constitution considered in Caton v. Frank, 56

Nev. 56, 44 P.2d 521, 522, just as clearly contemplates an election as does sec. 3 of Art. 19.

At least it connoted that much to this court, for it referred to the contention that the initiative

petition there involved was limited by the constitution to a “vote” of “the electors” “cast at

an election” and held that the legislature could provide any reasonable and uniform method

whereby the qualified “voters” expressed their desire.

I see no escape from the fact, then, that this court held in Caton v. Frank that sec. 8 of Art.

8 required an election; that in such election the electors, or voters, would vote. This being so,

the language there used is just as effective as that used in sec. 3 of Art. 19 in which the people

reserved to themselves the power to propose laws and to enact or reject the same at the polls.

Section 3 of Art. 19 then provides: “The legislature may provide by law for the manner of

exercising the initiative and referendum powers as to county and municipal legislation, * *

*.” It was pursuant to that constitutional provision that the legislature enacted NRS 268.010,

under which the electors could themselves amend their charter by filing a 60 percent initiative

petition. This was held in Caton v. Frank to have provided a reasonable and uniform method

“whereby the qualified voters of a city may, by a majority, express a desire to amend such

charter” and which was held to be not in conflict with sec. 8 of Art. 8.

I see no valid reason for overruling that decision. I agree with that holding that the

machinery of a 60 �� 3%��


percent petition provided a reasonable and uniform method under which 60 percent of the

voters express their will. We said in Beebe v. Koontz, 72 Nev. 247, 302 P.2d 486, 489: “* * *

in the Caton case the action sought by the petition was far more drastic, in that the petition

itself, signed by 60 percent of the electors, was a species of election and actually effected the

amendment without an election, while the petition in the instant case simply initiated election

proceedings. We recognized such a distinction in State ex rel. Quimby v. City of Reno, 71

Nev. 144, 282 P.2d 1071.” If that was dictum in Beebe v. Koontz, I would declare it here to

be the law—our approval of the direct pronouncement of the legislature.

In the Quimby case just mentioned, involving annexation of property to the city, we

referred to action by the city council, “where the action of the board does not simply initiate

election proceedings but in itself is a species of election which effectuates the annexation.”

Reference was made to decisions from other jurisdictions which used similar expressions.

The majority of the court appears to feel that, although in Caton v. Frank this court held

that sec. 8 of Art. 8 of the constitution was not violated by a statute permitting the amendment

of the city charter “by the filing of a petition signed by only a percentage of the qualified

voters,” the court there felt that it was unnecessary to decide the point and that the holding is

therefore not controlling in the instant case. With all respect, I am unable to agree with this

conclusion. Caton v. Frank was an original proceeding in mandamus in this court to compel

the mayor and city council of Reno to proceed upon a petition signed by a number of the

qualified voters of Reno to amend the charter. This court recited that the petition first

presented the question as to the constitutionality of the statute requiring such amendment

upon the filing of a 60 percent petition. As we have above noted, it disposed of this question

by deciding that the statute did not violate sec. 8 of Art. 8 of the constitution. It then

proceeded to the second point, namely, whether the petition �� 3%��


had been signed by 60 percent of the qualified electors. It decided that it had not been so

executed and denied the writ. Then at the end of the opinion the court stated, as noted in the

main opinion: “There are other questions raised by respondents' demurrer, but, we feel, in

view of the conclusion here reached, namely, that the petition is insufficient to justify the

issuance of the writ as prayed for, it would be unnecessary to decide the other points raised.”

It did, however, definitely pass upon the constitutional question.

I am compelled to conclude that the majority places too much emphasis on those words

contained in sec. 3 of Art. 19 under which the people reserve to themselves the power “to

propose laws * * * and to enact or reject the same at the polls, independent of the legislature,

* * *.” The words italicized are in my opinion merely descriptive of the exercise of

independent choice, and the emphasis should be placed upon the reservation of the right of

initiative and referendum to the people and to reserve it to them independent of the

legislature. When the constitution itself provided that the legislature should provide the

manner of exercising the initiative and referendum powers and the legislature in its wisdom

felt that it would be a waste of time and expense to require an election at the polls when a

majority of the voters had already expressed their view in writing, I cannot conclude that this

was in “clear, palpable and direct conflict with the written constitution,” justifying the

decision of this court that it is necessary “to undo [the] legislative act.” At least I cannot so

conclude in the face of complete absence of authority to support such action. I would reverse

the judgment of the district court.

Badt, J.

____________

��76 Nev. 492, 492 (1960) Wiechmann v. Hale��

WESLEY W. WIECHMANN and PACIFIC INVESTMENT, Inc., a Nevada Corporation,

Appellants, v. PRESTON Q. HALE, Respondent.

No. 4302

December 29, 1960 358 P.2d 113

Appeal from judgment of the Second Judicial District Court, Washoe County; Jon R.

Collins, Presiding Judge, Department No. 3.

Action for real estate broker's commission brought by authorized agent whose salesman

had shown premises to purchasers before house was sold by member of firm that constructed

house. The trial court rendered judgment for plaintiffs, and defendants appealed. The

Supreme Court, Pike, J., held that evidence sustained findings that broker's salesman

produced ready, willing and able purchasers of property, and that, prior to sale, broker's

salesman notified defendants that purchasers were clients of his and salesman produced them

as prospective purchasers.

Judgment affirmed.

Ernest S. Brown, of Reno, for Appellants.

Leonard T. Howard and Robert H. Moore, of Reno, for Respondent.

Brokers.

In action for real estate broker's commission brought by authorized agent whose salesman had shown

premises to purchasers before house was sold by member of firm that constructed house, evidence

sustained findings that broker's salesman produced ready, willing and able purchasers of property, and

that, prior to sale, broker's salesman notified defendants that purchasers were clients of his and salesman

produced them as prospective purchasers.

OPINION


This is an appeal from the judgment of the trial court against appellants, jointly and

severally, for the sum of .1�!/#�� ,�0

��


$1,475, representing the amount of a real estate broker's commission found to be due from

them to respondent.

The real estate transaction involved a house on Ferris Lane in Mayberry Park Subdivision

in Washoe County, Nevada.

One Wiechmann, as authorized agent for the owner of the premises, Pacific Investment,

Inc., listed the dwelling house for sale with respondent, a real estate broker, at a sale price of

$29,500. Thereafter a salesman for respondent showed the premises to a Mrs. Flowers who

evinced her interest in purchasing the premises, but who stated her wish that her husband also

see them as a basis for reaching a decision. Mrs. Flowers also inquired of respondent's

salesman whether certain rooms in the then uncompleted house could be painted a different

color and whether a certain type of light fixture could be placed in the bathroom. On the

Sunday following, Mrs. Flowers returned to the subdivision with her husband for the purpose

of having Mr. Flowers inspect the house. Mr. and Mrs. Flowers found no one at the house

that Mrs. Flowers had been shown by respondent's salesman, and went to another nearby

house, also under construction, looking for respondent's salesman. There they met a Mr.

Nesbitt and a Mr. Dennis. Both the house in which this meeting occurred and the house

previously shown to Mrs. Flowers were in the process of construction by the construction

firm of Dennis and Roberts, of which Dennis was a member. Dennis was also a real estate

broker. Upon Mrs. Flowers' inquiring for respondent's salesman and stating that such

salesman had shown her the house in which she was interested, Nesbitt advised her that

Bowers, respondent's salesman, had nothing to do with the sale of such house. Nesbitt and

Dennis then conducted Mr. and Mrs. Flowers through the house which Mrs. Flowers had

previously examined. Nesbitt, a real estate broker and agent for Dennis subsequently

delivered a deposit receipt to one Robert Stoker, who was president of Pacific Investment,

Inc. Stoker was also office manager of Wiechmann's contracting firm. Stoker testified that he

signed the deposit receipt, which indicated that Mr. and Mrs.


Flowers had made a deposit on the purchase price of the home. About a month later, in July

1957, a deed from Pacific Investment, Inc., as grantor, naming Mr. and Mrs. Flowers as

grantees, was executed, and some six days thereafter the same was recorded. The sale price

was $30,500, a thousand dollars more than the sales price for the property, as listed with

respondent by Wiechmann. The deposit receipt placed in the escrow pertaining to the sale of

the premises was signed by Pacific Investment, Inc., Stoker, and the Dennis and Roberts

corporation. There was no evidence that any real estate commission was paid to either Nesbitt

or Dennis who effected the actual sale to Mr. and Mrs. Flowers. The only changes or

additions shown to have been made or added at the premises were those which had been

previously discussed by Mrs. Flowers with respondent's agent Bowers. They pertained to the

color of paint in certain rooms and a certain type of light fixture in another room. The basis of

the increase of one thousand dollars over the sales price as listed with respondent does not

clearly appear.

(1) In its written findings of fact the court found that Wiechmann listed the property with

respondent, with conditions “* * * providing, among other things, that upon the plaintiff

producing a ready, willing and able buyer * * * Wiechmann would pay to plaintiff a

commission of 5% of the sale price;” that Wiechmann was, at the time of making said

agreement, the agent of Pacific Investment, Inc., although Wiechmann did not at that time

disclose such agency. These further findings were also made:

“5. That plaintiff, PRESTON Q. HALE, in accordance with the terms and conditions of

the oral agreement did produce a ready, willing and able buyer of the real properties, namely:

GARLAND and ALDINE FLOWERS and that notice of the production of this buyer was

given to defendants by telephone in various telephone conversations by and between plaintiff,

PRESTON Q. HALE, and agent of the defendants, ROBERT STOKER, General Manager of

PACIFIC INVESTMENT, INC., prior to sale of the same real properties to Mr. and Mrs.

Garland Flowers by a third party.


“6. That prior to the consummation of the sale to Mr. and Mrs. Garland Flowers by the

defendants, WESLEY W. WIECHMANN and PACIFIC INVESTMENT, INC., plaintiff,

PRESTON Q. HALE, did notify them that the FLOWERS were clients of his office and that

he had produced them as prospective buyers.

“7. This Court finds that plaintiff, PRESTON Q. HALE, did fulfill the terms and

conditions of the oral agreement by producing a ready, willing and able buyer for the sales

price of Twenty Nine Thousand Five Hundred Dollars ($29,500). That Mr. and Mrs. Garland

Flowers did purchase the real properties through a third party real estate agent and broker at a

sales price of Thirty Thousand Five Hundred Dollars ($30,500).”

Appellants contend that Findings 5 and 6 are not supported by the evidence. They also

urge that, as respondent did not effect a sale of the premises, he was not entitled to a

commission, in the absence of a showing of fraud by the owner, preventing him from making

the sale, citing Ramezzano v. Avansino, 44 Nev. 72, 189 P. 681, and Close v. Redelius, 67

Nev. 158, 215 P.2d 659. We reject both contentions.

Respondent does not assert fraud on the part of the seller as preventing the sale by

respondent, but relies upon the general rule recognized in each of the above cited cases of this

court “* * * that before a broker can be said to have earned his commission he must produce

a buyer within the time specified in the terms of the agency, when the time is limited, ready,

willing, and able to purchase at the price designated by the principal.” Respondent complied

with these conditions, and is entitled to the commission.

After finding that the agreement between Wiechmann and respondent, for the payment of

the real estate commission was in accordance with the above stated general rule, the court

also found in Finding No. 5 that respondent had notified Stoker of the production of such

buyer prior to the sale of the real property to Mr. and Mrs. Flowers by a third party.

Appellants contend that the portion of such finding, relating to notice, is not supported by the

evidence. With this contention we are unable to agree. The record shows that respondent's��*�� C �


agent Bowers showed the real property to Mrs. Flowers on June 21, 1957. It also

affirmatively establishes that neither Nesbitt nor Dennis met either Mr. or Mrs. Flowers prior

to June 23, and that the purchasers did not make a down payment until the following day

when the deposit receipt was delivered by Nesbitt to Stoker. Respondent Hale testified that,

on the same day upon which his salesman Bowers conducted Mrs. Flowers through the

premises, respondent telephoned Stoker and discussed with him certain changes relating to

color of paint and a lighting fixture proposed by Mrs. Flowers. Although Stoker denied

recollection of such conversation, the trial court accepted respondent's testimony as being

correct on this point. The findings referred to are each supported by substantial evidence and

will not be disturbed upon this appeal.

Judgment affirmed, with costs to respondent.


____________


WHITE PINE POWER DISTRICT NO. 9, a Municipal Corporation, Appellant, v. PUBLIC

SERVICE COMMISSION OF NEVADA, and its Members, J. G. ALLARD, NOEL A.

CLARK, and RICHARD G. CAMPBELL, WELLS POWER COMPANY, a Corporation,

WELLS RURAL ELECTRIC COMPANY, a Corporation, ROBERT

R. WRIGHT, a Subscriber for Electric Power Proposed to be Served by the Wells Rural

Electric Company, CHARLES C. READ, a User of Electric Power Served

by Wells Power Company, Said ROBERT R. WRIGHT and CHARLES C. READ

Being Made Defendants for Themselves and All Other Persons Similarly

Situated, Respondents.

No. 4306

December 29, 1960 358 P.2d 118

Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.

Action by municipal power district to enjoin electric power company from selling its

assets to another electric company and for other relief. The lower court rendered judgment for

defendants and plaintiff appealed. The Supreme Court, McNamee, C. J., held that where

municipal power district suing to enjoin power company from selling its assets to another

electric company had neither been granted certificate of public convenience and necessity nor

had it been granted franchise to serve customers within the area involved, power district was

not a party in interest entitled to maintain action.

Affirmed.

(Petition for rehearing denied February 24, 1961.)

Robert R. Gill, of Ely, Nevada, and Elias Hansen, of Salt Lake City, Utah, for Appellant.

Roger D. Foley, Attorney General, for Respondent Public Service Commission of Nevada

and its members.

Orville R. Wilson, of Elko, for Respondent Wells Power Company.


Vaughan & Hull, of Elko, for Respondents Wells Rural Electric Company, Robert R.

Wright and Charles C. Read.

1. Injunction. Where municipal power district suing to enjoin power company from selling its assets to another electric

company had neither been granted certificate of public convenience and necessity nor franchise to serve

customers within the area involved, it could not sustain irreparable injury by sale and it was not a party in

interest entitled to maintain action. NRS 312.010 et seq., 312.040, 704.330 and subd. 1, 704.340.

2. Electricity. A municipal power district is not a “municipality” within meaning of statutory provision exempting

municipalities from requirement of obtaining certificates of public convenience and necessity and

municipal power districts are subject to statute requiring such certificates. NRS 312.010 et seq.,

312.040, 704.330 and subd. 1, 704.340.

OPINION


This is an action by appellant to enjoin respondent Wells Power Company from selling its

assets to respondent Wells Rural Electric Company. The complaint further seeks to have the

court declare null and void the approval by the respondent Public Service Commission of

such sale. The motion of respondents to dismiss the action was granted upon the ground that

the complaint failed to state a claim against respondents in that no facts were alleged which

would show that appellant was a party in interest. Appeal is from the order of dismissal.

[Headnote 1]

This court heretofore denied appellant's motion herein for an injunction during the

pendency of this appeal. White Pine Power District v. Public Serv. Comm., 76 Nev. 263, 352

P.2d 256. In that opinion we said:

“It has not been pointed out in appellant's points and authorities on this motion nor in its

oral argument any irreparable injury which it might suffer through our failure to grant said

motion. In fact, how appellant could suffer an irreparable injury during the pendency �� 8��)�� )��?�,��)��K�� )��?�,�� K�� 8��)�� K�� 8��)�� '


of the appeal would be difficult to understand in light of the admitted facts that appellant has

not been granted a certificate of public convenience and necessity by the Public Service

Commission of the State of Nevada, nor has it been granted a franchise by the State of

Nevada or the County of Elko, State of Nevada, or the City of Wells, County of Elko, State of

Nevada, to serve any of the residents or inhabitants of that area of Nevada included within the

existing franchise of the Wells Power Company or the certificate of public convenience and

necessity heretofore issued to Wells Power Company and under which said company is now

operating.”

The same reasons for denying an injunction pending this hearing on the merits of the

appeal exist for denying the relief prayed for in the complaint.

Appellant argues however that inasmuch as the appellant, White Pine Power District, is a

municipal power district organized pursuant to NRS 312, it needs no certificate of public

convenience as required by subsection 1 of NRS 704.330. 1

[Headnote 2]

Only municipalities constructing, leasing, operating, or maintaining any public utility are

exempt from the provisions of NRS 704.330. NRS 704.340. A municipal power district is not

a municipality. NRS 312.040. The case of State v. Lincoln County Power District, 60 Nev.

401, 111 P.2d 528, does not hold otherwise. It decided only the proposition that the property

of a municipal power district was exempt from taxation. We therefore conclude that

municipal power districts are subject to the provisions of NRS 704.330.

Not having been granted a certificate from the Public Service Commission of Nevada that

the present or future �� K�� 8��)��K��8��8��7� ��

____________________

1

Subsection 1 of NRS 704.330: “Every public utility owning, controlling, operating or maintaining or having

any contemplation of owning, controlling or operating any public utility shall, before beginning such operation

or continuing operations or construction of any line, plant or system or any extension of a line, plant or system

within this state, obtain from the commission a certificate that the present or future public convenience or

necessity requires or will require such continued operation or commencement of operations or construction.”


public convenience or necessity requires or will require its operation within the existing

franchise of the respondent Wells Power Company, appellant White Pine Power District is

not a party with an interest entitling it to maintain this action.

Affirmed.

Pike, J., and Bowen, District Judge, concur.

Badt, J., being disqualified, the Governor designated Honorable Grant L. Bowen, Judge of

the Second Judicial District, to sit in his stead.

____________

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