nevada reports 1970 (86 nev.).pdf

86 Nev. 1, 1 (1970)

REPORTS OF CASES

DETERMINED BY THE

SUPREME COURT

OF THE

STATE OF NEVADA

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Volume 86____________

86 Nev. 1, 1 (1970) Utility Financial Corp. v. Roberts

UTILITY FINANCIAL CORP., a Corporation, Appellant, v. JOSEPH G. ROBERTS,Respondent.

No. 5835

January 2, 1970 463 P.2d 481

Suit for declaratory relief to determine priorities between lenders who loaned fundssecured by real estate. Eighth Judicial District Court, Clark County; Howard W. Babcock,Judge.

Action against mortgagee to compel conveyance or release of lots from mortgage and toenjoin foreclosure proceedings, and for declaratory relief to determine priorities betweenlenders who loaned funds secured by real estate. The district court rendered judgment forplaintiff, and defendant appealed. The Supreme Court, Zenoff, J. held that mortgagee whosemortgage provided that, if obligation was not in default, individual lots would be releasedupon payment of stated sum, and who advised prospective mortgagee, in answer to request,that lots would be released upon payment of stated amount was estopped from refusing torelease lots after payment of proper amount by prospective mortgagee on ground thatobligation was in default.

Affirmed.


Guild, Guild & Cunningham, and David W. Hagen, of Reno, for Appellant.

John Peter Lee, of Las Vegas, for Respondent.

1. Estoppel. Mortgagee whose mortgage provided that, if obligation was not in default, individual lots would bereleased upon payment of stated sum, and who advised prospective mortgagee, in answer to request, thatlots would be released upon payment of stated amount was estopped from refusing to release lots afterpayment of proper amount by prospective mortgagee on ground that obligation was in default.

2. Estoppel. Holder of security who induces others to believe and act upon belief that he will not enforce instrumentmay be estopped from enforcing it as to them.

OPINION

By the Court, Zenoff, J.:

On November 12, 1964 Utility Financial Corp. loaned $51,500 to Douglas Spencer andAssociates and Lee V. Potter. The obligation was evidenced by a promissory note secured bya deed of trust on certain real property in Clark County, Nevada, including Lots 1 through 21,of Block 27, Solar Subdivision No. 1. The deed of trust contained a partial release clause tothe effect that individual lots of the property would be released upon payment of $750.00,plus interest, for each lot to be released provided the obligation was not in default. Allegedly Spencer failed to make an installment payment on February 12, 1965. A fewdays after that date Joseph Roberts and Spencer negotiated a loan whereby Roberts wouldloan Spencer $48,000 to be secured by the 21 lots. They opened an escrow at First TitleInsurance Company, at Las Vegas, for that purpose. As a condition of the loan Robertsrequired that he have first priority on the lots and that he wanted a title policy so insuring hisfirst priority. The escrow company inquired by letter of Utility the amount Utility wouldrequire to pay off the 21 lots. After the written demand by First Title, Utility by its employee,Tom Horngren, wrote First Title that the amount necessary to pay in full the sums owing onthe 21 lots was $15,750 principal, plus $350.84 interest, and a daily rate of $3.22. He madeno mention then or thereafter that Utility considered Spencer's account as delinquent or indefault. First Title sent Utility a check for the full amount


requested referring on the face of it to the demand in full, which Utility accepted anddeposited. Instead of releasing the 21 lots Utility applied the amount of the check to theSpencer account justifying their conduct on the premise that Spencer's obligation being indefault, Utility was no longer obligated to grant partial releases to the lots. Roberts broughtaction to compel a conveyance or release from Utility of the 21 lots and to enjoin foreclosureproceedings by Utility against the lots. The trial court found that neither Roberts nor First Title had knowledge of the purporteddelinquency existing between Spencer and Utility and that Horngren being in a position ofauthority, was authorized to advise of the amount due, which he did, and that Utility isestopped to deny the validity of Horngren's demand made upon the escrow company.

[Headnote 1] The exchange of correspondence between the escrow company and Utility afforded Utilityample opportunity to advise Roberts through the escrow company that Spencer's account withUtility was in jeopardy. We cannot permit their silence to lead Roberts into a position he didnot intend nor contract to get into. Under these circumstances he had the right to rely upontheir representation as to what the balance due was on the lots. Utility's failure to apprise himof the purported default bars them from refusing to abide by the partial release provision inthe note and trust deed.

[Headnote 2] A long-established principle with respect to waiver and estoppel is that, through hisconduct, a holder of a security instrument may induce others to believe an act upon the beliefthat he will not enforce it and, because of this, may be estopped from doing so as to them. Inshort, the nondisclosure by the lending institution induced the new lending parties to act uponit. In the absence of the knowledge that would have been material to the Roberts transaction,the failure of Utility to impart it cannot be used to Utility's advantage. Dagnino v. HomeFederal Savings, 183 So.2d 846 (Fla.App. 1966); Orlando Orange Groves v. Davenport, 77F.2d 148 (5th Cir. 1935). The foregoing is the only issue the court deems determinative of this appeal. Affirmed.

Collins, C. J., Batjer and Mowbray, JJ., and Young, D. J., concur.

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86 Nev. 4, 4 (1970) Drummond v. State

JIMMIE LEE DRUMMOND and BILLY RAY RILEY, Appellants, v. THE STATE OFNEVADA, Respondent.

No. 5898

January 5, 1970 462 P.2d 1012

Appeal from judgments of the Eighth Judicial District Court, Clark County; Howard W.Babcock, Judge.

Defendants were convicted before the district court of robbery and they appealed. TheSupreme Court, Thompson, J., held that under evidence which overwhelmingly establisheddefendant's guilt, allowing use of transcript of testimony given at preliminary hearing byrobbery victim who was not shown to have been unavailable at commencement of trial washarmless error. Affirmed.

James D. Santini, Public Defender, and H. Leon Simon, and Jeffrey Sobel, Deputy PublicDefenders, Clark County, for Appellants.

Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, GeorgeH. Spizzirri, and Addeliar D. Guy, Deputy District Attorneys, Clark County, for Respondent.

1. Stipulations. Where continuance of prosecution for robbery was by stipulation, state's failure to satisfy requirements ofrule in seeking continuance was not relevant to validity of defendant's subsequent conviction. DCR 21.

2. Constitutional Law. The right granted an accused by the Sixth Amendment to confront the witnesses against him, includingthe right of cross-examination, is fundamental to a fair trial and obligatory on states through the FourteenthAmendment. U.S.C.A.Const. Amends. 6, 14.

3. Criminal Law. Transcript of testimony of a material witness given at preliminary examination may be received inevidence at trial if (1) defendant was represented by counsel at preliminary hearing; (2) counselcross-examined witness; and (3) witness is shown to be actually unavailable at time of trial.

4. Criminal Law. Where state investigator had been in contact with robbery victim prior to trial, knew of his out-of-stateresidence and his presence there but made no effort to compel victim's attendance at trial, victim was notunavailable at commencement of trial and


allowing use, at trial, of transcript of his testimony given at preliminary hearing was error even thoughduring continuance prosecutor unsuccessfully utilized Uniform Act to secure the attendance of out-of-statewitnesses. NRS 171.198, subd. 7, 174.395 et seq.

5. Criminal Law. Defendant's right to confront witnesses against him may be waived by his failure, at trial, to object to useof transcript of witness' testimony given at preliminary examination. U.S.C.A. Const. Amends. 6, 14.

6. Criminal Law. Under evidence which overwhelmingly established defendant's guilt, introduction of transcript oftestimony given at preliminary hearing by robbery victim who was not shown to be unavailable atcommencement of trial was harmless error.

OPINION

By the Court, Thompson, J.:

Drummond and Riley were convicted of robbery. On this direct appeal they contend thattheir Sixth Amendment right to be confronted with the witnesses against them was violatedwhen the trial court allowed the State to offer in evidence, over appropriate objection, thetestimony of the robbery victim given at the preliminary examination. We are asked to voidtheir convictions and remand for another trial since a violation of this fundamentalconstitutional right cannot be deemed harmless error. Messmore v. Fogliani, 82 Nev. 153,156, 413 P.2d 306 (1966).

[Headnote 1] The defendants were represented by counsel at their preliminary examination, and counselcross-examined the victim at that time. When trial occurred in the district court the victimwas not present to testify. No pretrial effort was made by the State to compel his attendance[NRS 174.395 et seq.Uniform Act to secure the attendance of out-of-state witnesses]although his out-of-state address and presence there were known at that time. The Statepresented its case in chief and then requested a continuance in order to secure the presence ofthe victim-witness. Defense counsel stipulated to a continuance. 1 He also wanted the victimto testify and to subject him

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1 Since the continuance was by stipulation we are not concerned with the State's failure to satisfy the

requirements of District Court Rule 21 in seeking a continuance. See: Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918(1969); Rainsberger v. State, 76 Nev. 158, 160, 350 P.2d 995 (1960).


to searching cross-examination. However, defense counsel made it clear that he would objectto any effort by the State to use the preliminary transcript of the victim's testimony should henot appear at the time to which the trial was continued. The court continued the trial for 12 days and admonished the prosecutor to utilize theUniform Act to compel the victim's attendance. The witness was not present when the trialresumed. He had not been subpoenaed. The witness told an investigator for the State that hewould be present, and the investigator made transportation arrangements for him. Theprosecutor also utilized the Uniform Act, but the out-of-state authorities were unable to locate

the witness at that time. Within this framework the trial court permitted the State to read thepreliminary transcript of the victim's testimony into evidence.

[Headnote 2] 1. The right granted an accused by the Sixth Amendment to confront the witnesses againsthim, which includes the right of cross-examination, is fundamental to a fair trial andobligatory on the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400(1965). Our decision in Messmore v. Fogliani, supra, rested squarely upon the doctrineproclaimed in Pointer since, in each case, there was a total preclusion of the right to confronta material witness and to cross-examine him through counsel. The witness was notcross-examined by counsel at the preliminary hearing in either of those cases. The case athand is different than Pointer and Messmore in two respects. First, defense counsel didcross-examine the victim-witness at the preliminary examination. Second, the witness, at thetime of trial, resided in another state. Whether these distinguishing factors are meaningfulwithin the context of the record before us presents the issue of this appeal. 2. In Pointer, supra, the United States Supreme Court, in dictum, noted a situation thatwould not fall within the scope of the rule of confrontation stating, The case before us wouldbe quite a different one had Phillips' statement been taken at a full fledged hearing at whichpetitioner had been represented by counsel who had been given a complete and adequateopportunity to cross-examine. Id. at 407. The meaning which state courts are to accord thatdictum is diluted in the light of a later opinion of the High Court, Barber v. Page, 390 U.S.719 (1968), wherein it was noted, Moreover, we would reach the same result on the facts ofthis case had petitioner's counsel actually cross-examined Woods at the preliminary hearing.


See: Motes v. United States, 178 U.S. 458 (1900). The right to confrontation is basically atrial right. It includes both the opportunity to cross-examine and the occasion for the jury toweigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searchingexploration into the merits of a case than a trial, simply because its function is the morelimited one of determining whether probable cause exists to hold the accused for trial. Whilethere may be some justification for holding that the opportunity for cross-examination of awitness at a preliminary hearing satisfies the demands of the confrontation clause where thewitness is shown to be actually unavailable, this is not, as we have pointed out, such a case.Id. at 725, 726.

[Headnote 3] The quoted language of the Pointer and Barber cases is reconcilable. We read thoseobservations of the High Court to mean that the transcript of the testimony of a materialwitness given at the preliminary examination may be received in evidence at the trial if threepreconditions exist: first, that the defendant was represented by counsel at the preliminaryhearing; second, that counsel cross-examined the witness; third, that the witness is shown to

be actually unavailable at the time of trial. In the case before us the first two preconditions aremet, and we turn to consider whether the third precondition, actual unavailability at the timeof trial, is shown by the record.

[Headnotes 4, 5] 3. The relevant part of NRS 171.198(7) allows the preliminary transcript to be used at trialif the witness is sick, dead, out of the state, or when his personal attendance cannot be had incourt. Here, the witness was out of the state and the narrow issue is whether it can fairly beconcluded that his personal attendance cannot be had in court. This, of course, was thequestion posed in Barber v. Page, supra. In that case the witness was incarcerated in a federalpenitentiary. His attendance could have been compelled either by resort to the Uniform Act tosecure his attendance, or by the use of a writ of habeas corpus ad testificandum. The Statemade no effort to employ either procedure. The court held that the witness was notunavailable for the purpose of the exception to the confrontation requirement since theState had not made a good faith effort to obtain his presence at trial. The Barber ruling was given retroactive application the following year in Berger v.California, 393 U.S. 314 (1969). In Berger the witness was in another state. An investigatorfor


the prosecutor had contacted relatives of the witness, but not the witness himself. However,two telegrams were apparently received from the witness, but the prosecutor did not servehim with subpoena. The conviction was set aside since the witness was not shown to beunavailable. Berger controls the case at bar. Indeed, this case is a stronger one for the application of thedoctrine announced in Barber v. Page since the State's investigator had been in contact withthe witness before trial, knew of his residence out of state and his presence there. No effortwas made to compel his attendance. Of course, after the court granted a continuance, theprosecutor unsuccessfully utilized the Uniform Act. That effort, however, was at the directionof the court and does not obliterate the initial failure to secure the attendance of the witnessfor trial when it commenced. Accordingly, we must conclude that the trial court erred inallowing use of the preliminary transcript at trial. 2

[Headnote 6] 4. The State contends that if error occurred, it was harmless. The doctrines of Pointer andBarber concern substantive due process and, as noted, are given retrospective application.Accordingly, we have heretofore ruled that where there is a total preclusion of the right toconfront a material witness and to cross-examine him through counsel, the doctrine ofharmless error may not be considered. An automatic reversal is mandated. Messmore v.Fogliani, supra. In the case before us, however, the witness was cross-examined by defensecounsel at the preliminary examination, and to this extent is different than Messmore. We

must decide whether this difference will allow us to evaluate the error in the context of thiscase and the federal standard of harmless error proclaimed in Chapman v. California, 386U.S. 18 (1967). In Guyette v. State, 84 Nev. 160, 438 P.2d 244 (1968), we suggested that the rule ofharmless error might be utilized in proper circumstances when any of the new proceduralsafeguards as expressed in Mapp v. Ohio, 367 U.S. 643 (1961); Griffin v. California, 380U.S. 609 (1965); Escobedo v. Illinois, 378 U.S. 478 (1964); Miranda v. Arizona, 384 U.S.436 (1966), and Gilbert v. California, 388 U.S. 263 (1967), are breached. Id. at 166. Thatsuggestion rested mainly on the proposition that the constitutional doctrines of those caseswere

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2 The right of confrontation may be waived by the failure to object to the use of the preliminary transcript,

People v. Pike, 455 P.2d 776 (Cal. 1969), or by stipulation, Pook v. Fitzharris, 396 F.2d 544 (9 Cir. 1968).Neither occurred here.


not given retrospective application for the reason that a violation might occur withoutnecessarily affecting the fundamental fairness of the trial. In contrast, we noted in thatopinion that automatic reversal occurs in those cases in which substantive due process isdenied the defendant and the constitutional doctrine violated is accorded retrospectivesignificance. Id. at 166, footnote 1. In the light of our expressions in Guyette it would appearthat we must reverse these convictions since the constitutional violation involved concernssubstantive due process and is given retrospective effect. However, in 1968 the High Court decided Harrington v. California, 395 U.S. 250, whichconcerned a violation of the Bruton doctrine. 3 There, the Court ruled that the violation washarmless beyond a reasonable doubt. Thus, Harrington erodes, to some degree, our analysis inGuyette since it permits consideration of harmless error in a case where the constitutionaldoctrine violated has been given retrospective effect. Since Harrington and the case before useach concern the Confrontation Clause we conclude that it is permissible for us to review therecords and decide whether the constitutional error is harmless beyond a reasonable doubt. In this case the evidence establishing the guilt of Drummond and Riley is overwhelming.Police officers actually observed the robbery in process and apprehended the robbers as theyran from the scene. Within this factual setting the transcribed testimony of the victim-witnessgiven at preliminary examination and read into evidence at trial was insignificant. Indeed, thatwitness could not identify the robbers since they had placed paper bags with peepholes overtheir heads. If the error considered by the Court in Harrington v. California, supra, washarmless, a fortiori the mistake in this case must be so treated. Affirmed.

Collins, C. J., Zenoff, Batjer, and Mowbray, JJ., concur.

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3 Burton v. United States, 391 U.S. 123 (1963), held that the use, against Bruton, of a confession of a

codefendant, violated the Confrontation Clause of the Sixth Amendment.

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86 Nev. 10, 10 (1970) Thomas v. Bokelman

ALVIS O. THOMAS, Guardian ad Litem for WENDY SUE THOMAS and ALVIS O.THOMAS IV, Minors, and ALVIS O. THOMAS, Individually, Appellants, v. WILLIAM

BOKELMAN and WILLIE BOKELMAN, Respondents.

No. 5875

January 6, 1970 462 P.2d 1020

Appeal from a summary judgment of dismissal. Second Judicial District Court, WashoeCounty; John W. Barrett, Judge.

Action for death of plaintiffs' decedent who, while visiting defendants' house, was shot byex-felon whom defendants had harbored after his release from imprisonment for forciblerape. The district court rendered summary judgment for defendants, and plaintiffs appealed.The Supreme Court, Zenoff, J., held that defendants were not liable although defendants hadleft guns and ammunition accessible. Affirmed.

Bradley & Drendel, of Reno, for Appellants.

Leslie A. Leggett, of Reno, for Respondents.

1. Weapons. Defendants who harbored ex-felon after his release from imprisonment for forcible rape were not liablefor death of visitor who was shot by ex-felon using defendants' gun, although defendants had left guns andammunition accessible.

2. Negligence. Negligence is not actionable unless, without intervention of intervening cause, it proximately causes harmfor which complaint was made; intervening cause means not concurrent and contributing cause butsuperseding cause which is itself natural and logical cause of harm.

3. Negligence. Defendant who could not foresee any danger from intervening force is not negligent.

4. Negligence. There is duty to take affirmative action to control wrongful acts of third persons only where occupant ofrealty has reasonable cause to anticipate such act and probability of injury resulting therefrom.

5. Judgment. Defendant is entitled to summary judgment where plaintiff as matter of law cannot recover.

6. Judgment.Party opposing summary judgment motion is not entitled to have motion denied on mere hope that at trialhe will be able to !"


discredit movant's evidence; be must at hearing be able to point out something indicating existence oftriable issue of fact and must set forth specific facts showing that there is genuine issue.

7. Judgment. Inferences will be drawn in favor of party opposing motion for summary judgment.

OPINION


In 1955 Jack Summers was convicted of rape and sent to prison. He was released in 1968having served his time. Summers v. Warden, 84 Nev. 326, 440 P.2d 388 (1968). He lived inReno for about two months with the Bokelmans, who were relatives, but finally Bokelman,Summers' half-brother, was unable to any longer support him and asked him to leave. At notime during his stay at the Bokelman residence was there any discord or concern aboutSummers' conduct. Although two teenage girls lived with the Bokelmans as foster daughters,the early concern over their safety in view of Summers' history of the rape incident wasdispelled by his compatibility and blending in with the family life. The Bokelmans and Thomases were friends and visited each other frequently, particularlyMrs. Thomas. On one occasion Summers, Mrs. Thomas, Mrs. Bokelman and her fatherattended a roller derby together with the knowledge of Mr. Thomas. Bokelman, who hunted for recreation, owned two rifles and also had in his possession asmall rifle which he had borrowed from his father-in-law. The weapons were kept in hisbedroom closet which was unlocked. The shells for the larger rifles were on a closet shelf andthe shells for the small rifle were in the nightstand by his bed. On one occasion Summers sawthe guns when Bokelman showed them to a friend who was visiting. On July 3 Bokelman asked Summers to leave. Apparently the request was taken in goodhumor by Summers who had told Mrs. Bokelman that he would go to the state of Washingtonto look for a job. When the Bokelmans returned to their home later in the day Summers andall of his belongings were gone. However, there is no evidence to show that either Mr. orMrs. Thomas knew of Summers leaving. Mr. Thomas never met Summers but did know of

his past record and that he was staying at the Bokelmans. On July 8 Mrs. Bokelman had planned a birthday party for Mrs. Thomas's daughter. Sheleft her house at 9:00 a.m. and #!$%&''


stayed at the Thomas's house until 12:00 noon. She called her house at noon to see if heryounger foster daughter was home but no one answered. At about noon the two women andtwo children drove to the Bokelman household. As they drove into the driveway Mrs.Thomas said she saw someone walk past the window, but Mrs. Bokelman mentioned that shehad called earlier and no one had been home. When the two women entered the house theyfound a note from the younger girl saying she was downtown. Mrs. Bokelman heard someshots and saw Mrs. Thomas fall. Mrs. Bokelman was also shot. Mrs. Bokelman only saw theback of the man's shirt who did the shooting and saw the car leave the driveway. LaterSummers was apprehended, charged and convicted of the murder of Mrs. Thomas. Mr. Thomas for himself and their minor children brought this action for wrongful deathalleging that the Bokelmans were negligent in leaving an unlocked gun around an ex-convictwith vicious propensities and that their negligence was the proximate cause of Mrs. Thomas'sdeath. Default judgment was entered against Summers. The trial court granted summaryjudgment dismissing the action. For reversal Thomas contends (1) that the act of leavingfirearms and ammunition accessible to a man once convicted of forcible rape and residing onthe premises constitutes actionable negligence, and (2) that the intervening criminal act of aperson known to have a violent criminal personality does not prevent the asserted negligenceof the Bokelmans who made it possible for him to commit such criminal act from being theproximate cause of the killing of the victim and, finally (3) that summary judgment was not aproper disposition of this action.

[Headnote 1] 1. The Thomas complaint is based upon the allegation that as the possessors of firearmsand ammunition the Bokelmans failed to exercise that degree of care commensurate with therisk that such possession entailed. They seek to base liability upon the inherently dangerouscharacter of the instruments, the firearms, together with the risk of the keeping of firearms inthe proximity of an ex-felon who had 13 years before been convicted for an act of rape. The degree of care owed by the Bokelmans to the legal status of the victim, whether as alicensee or as an invitee, is not in issue. Nor is the reference to cases in which the factualpattern involving a shooting by children to whom firearms were dangerously left available,germane. Those latter instances are largely governed by the control or supervision that parents


have over their children which, in turn, imposes liability for their acts. It cannot be said thatthe Bokelmans had supervision or control over 35-year-old Summers.

[Headnote 2] 2. Negligence is not actionable unless, without the intervention of an intervening cause, itproximately causes the harm for which complaint was made. An intervening cause means nota concurrent and contributing cause but a superseding cause which is itself the natural andlogical cause of the harm. Segerman v. Jones, 38 U.S.L.W. 2347 (Md.App. Dec. 9, 1969).

[Headnotes 3, 4] Mrs. Thomas may not have been aware of the guns in Bokelman's home, but she did knowof Summers' past record and character of the crime he had committed. Still, no reason appearsfor anyone in the household to foresee or anticipate Summers' presence with a gun. The risk,if any, was that Summers might again rape someone. His history is not one that involvedweapons and the social relationship that had prevailed precluded any present fear of an evildisposition. A defendant who could not foresee any danger from an intervening force is notnegligent. Sitarek v. Montgomery, 203 P.2d 1062 (Wash. 1949); Fulfer v. Sherry's LiquorStores, 149 P.2d 734 (Cal.App. 1944). Appellants rely upon Underwood v. United States, 356F.2d 92 (5th Cir. 1966), but there the well-known history of the emotional instability of thesoldier who shot his wife was the predicate for anticipating that he would do so because withthe knowledge that the soldier was bent on harming his wife he was permitted to obtain aweapon. There is a duty to take affirmative action to control the wrongful acts of thirdpersons only where the occupant of realty has reasonable cause to anticipate such act and theprobability of injury resulting therefrom. Young v. Desert View Management Corp., 79Cal.Rptr. 848, 850 (Cal.App. 1969); Di Gildo v. Caponi, 247 N.E.2d 732, 735 (Ohio 1969).

[Headnotes 5-7] 3. The courts are reluctant to grant summary judgment in negligence cases becauseforeseeability, duty, proximate cause and reasonableness usually are questions of fact for thejury. Berrum v. Powalisz, 73 Nev. 291, 293, 317 P.2d 1090 (1957). But when plaintiff as amatter of law cannot recover, defendant is entitled to a summary judgment. Young v. DesertView Management Corp., supra (judgment of nonsuit entered following an opening statementmade to the jury by plaintiff's (


attorney). The rule is well-settled that the opposing party is not entitled to have the motion forsummary judgment denied on the mere hope that at trial he will be able to discredit movant'sevidence; he must at the hearing be able to point out to the court something indicating theexistence of a triable issue of fact. 6 Moore's Federal Practice, 56.15(4) at 2142. Theopponent is required to set forth specific facts showing that there is a genuine issue for trial.

Bufalino v. Michigan Bell Telephone Co., 404 F.2d 1023 (6th Cir. 1968); Applegate v. TopAssociates, Inc., 300 F.Supp. 51 (S.D.N.Y. 1969). Taking into consideration that inferenceswill be drawn in favor of the party opposing the motion the opponent must nevertheless showhe can produce evidence at the trial to support his claim. Chapman v. Rudd Paint & VarnishCo., 409 F.2d 635, 643 (9th Cir. 1969); cf. Dyer v. MacDougall, 201 F.2d 265 (2nd Cir.1952). Nothing appears to indicate from this record that more facts could be established thatwould alter the factual situation as already stated. Therefore, as a matter of law the appellantcannot recover. We can find no actionable issue for the jury. The summary judgment wasproper. Affirmed.

Collins, C. J., Batjer, Mowbray, and Thompson, JJ., concur.

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86 Nev. 14, 14 (1970) McGlone v. McGlone

ARTIE MATHEW McGLONE, Appellant, v.ARMA LYNN McGLONE, Respondent.

No. 5776

January 15, 1970 464 P.2d 27

Appeal from a portion of an order of the Eighth Judicial District Court, Clark County;Howard W. Babcock, Judge.

Appeal by father from part of habeas corpus order of district court awarding custody of histhree daughters to their maternal grandparents. The Supreme Court, Thompson, J., held thatwhere the mother was unfit for custody of her children and unfitness of father was notintimated, father who had been awarded custody of his son was legally entitled to the custodyof his daughters. Reversed.

Batjer, J., dissented.


[Rehearing denied March 25, 1970]

Foley, Garner & Shoemaker, of Las Vegas, for Appellant.

Monte J. Morris, of Henderson, for Respondent.

1. Divorce. Child custody provisions of divorce and guardianship statutes create a rebuttable presumption that a fitparent is to be preferred over nonparents and custody should not be given to nonparent unless parent isfound to be unfit. NRS 125.140, subd. 1, 159.050, subd. 1.

2. Divorce. Where mother of children was unfit for custody and unfitness of father was not intimated, divorced fatherwho had been awarded custody of son was legally entitled to custody of daughters. NRS 125.140, subd.1, 159.050, subd. 1.

OPINION


The father appeals from that part of a district court custody order entered in a habeascorpus proceeding awarding the custody of his three minor daughters to their maternalgrandparents. He was given custody of his minor son. His habeas petition initially rested upona temporary order of a Louisiana court granting him the custody of all four children. TheLouisiana case had been commenced by his wife and sought a legal separation, child custodyand support. Soon after starting suit the wife left Louisiana with the children, and they havesince resided in Clark County, Nevada. The Louisiana litigation continued in her absence,although she was represented throughout by counsel. The temporary order upon which thehusband's habeas petition was grounded became final [subject, of course, to modificationupon an appropriate showing of changed circumstances affecting the welfare of the children]before the Nevada habeas proceeding was concluded, and the Louisiana decree which gavethe husband a divorce and custody of the four minor children was received in evidence in theNevada litigation. The order from which this appeal is taken found the mother unfit to have custody, grantedthe father custody of their minor son, and awarded custody of the three minor daughters to thematernal grandparents. Thus, the Louisiana and Nevada orders are in harmony in tworespects. Each found the mother to be unfit for custody. Moreover, each court found thefather fit to )*+


have custodyLouisiana awarding him custody of all four children and Nevada granting himcustody of the boy. The difference between the two orders is with regard to the custody of thegirls. As to them, the Nevada court declined to follow the Louisiana judgment and awardedtheir custody to the maternal grandparents. It is this aspect of the Nevada order which the

father challenges. His challenge is twofold: first, that the Louisiana decree should be accorded full faith andcredit in this state, or, at the very least, honored on the principle of comity [Lyerla v. Ramsay,82 Nev. 250, 415 P.2d 623 (1966); Ferguson v. Krepper, 83 Nev. 408, 432 P.2d 668 (1967)]since changed conditions affecting the welfare of the children were not shown to haveoccurred after entry of the Louisiana decree; second, that the interests of the children are bestserved by awarding their custody to a fit natural parent in preference to grandparents. In thecontext of this case we have concluded that the latter challenge is sound, and will, therefore,confine our discussion to that point. 1. At the outset we note that this litigation is between the father and the mother. Thematernal grandparents are not parties to it, have never enjoyed legal custody of theirgrandchildren, and have never asserted a claim to such custody. They appeared as witnessesbefore the court and apparently were amenable to the responsibilities of custody should thecourt decide such a course to be the desirable one. Cf. Farrell v. Farrell, 72 Nev. 259, 302P.2d 484 (1956). Consequently, this case is to be distinguished from those in which issue isjoined between a parent on the one hand and the grandparents on the other. Cf. Painter v.Bannister, 140 N.W.2d 152 (Iowa 1966). We are reluctant to approve an award of custody tononparties although dictum in Atkins v. Atkins, 50 Nev. 333, 339, 259 P. 288 (1927), may beread to suggest that a court has the power to do so in appropriate circumstances.

[Headnote 1] 2. Our legislature has expressed itself with respect to child custody. In the chapter ondivorce the court is directed to order that which is most for the present comfort and futurewell being of the children. NRS 125.140(1). This, of course, is the best interest of thechild standard. And, in the chapter on guardianship we are advised that either parent, nototherwise unsuitable, shall be entitled to the guardianship of a minor. NRS 159.050(1). Readtogether, these statutes create, at the very least, a rebuttable presumption that a fit parent is tobe


preferred over nonparents with respect to child custody. California acknowledges thesestatutory guides and has ruled that custody shall not be given to a nonparent unless the parentis found to be unfit. In re Guardianship of Smith, 265 P.2d 888 (Cal. 1954). We prefer thisview. The best interest of the child is usually served by awarding his custody to a fit parent.Cf. Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969), where we ruled that as between fitparents, a child of tender years should be awarded to the mother.

[Headnote 2] As before noted there is no suggestion in the matter at hand that the father is unfit to enjoythe custody of the minor children. Indeed, neither the maternal grandparents nor the welfaredepartment representative who investigated for the court intimated unfitness in the father. The

court apparently agreed to some extent since it awarded custody of the boy to the father. Inthese circumstances we believe that he is legally entitled to the custody of his daughters aswell. To this extent, the order below is reversed.

Collins, C. J., Zenoff and Mowbray, JJ., concur.

Batjer, J., dissenting: I respectfully dissent. It cannot be said, as a matter of law, that custody shall not be given to a nonparent unlessthe parents are found to be unfit. Although it may be dicta, in Atkins v. Atkins, 50 Nev. 333, 339, 259 P. 288 (1927), thiscourt said: The good of the child is paramount to all other considerations, and the court mayignore the greater affection of one party, the common-law right of the father, the agreementsof the parties, and, if the circumstances clearly require it, may award the custody to a thirdparty. In Roller v. Roller, 213 So.2d 161 (La. 1968), that court said: . . . [F]requently have ourcourts awarded child custody to third parties, and in such cases, the basic determinationremains whether or not the best interest of the child would be served by giving custody tosuch persons. Furthermore, while the trial court awarded the appellant custody of the minor son, and didnot specifically find him to be an unfit parent, we can imply that he was unfit to assume thecustody of the three minor daughters because their custody was granted to the maternalgrandparents. Cf. Harris v. Harris, 84 +%,--.,/%01.2$,03("##10+%.'


Nev. 294, 439 P.2d 673 (1968); cf. Timney v. Timney, 76 Nev. 230, 351 P.2d 611 (1960). A trial court is given wide latitude of discretion in the determination of questions relatingto the custody of children, and its judgment will not be disturbed unless a clear abuse appears.Timney v. Timney, supra; Murphy v. Murphy, 65 Nev. 264, 193 P.2d 850 (1948); Black v.Black, 48 Nev. 220, 228 P. 889 (1924); Elsman v. Elsman, 54 Nev. 20, 28, 31, 2 P.2d 139, 3P.2d 1071, 10 P.2d 963 (1931, 1931, 1932); Cosner v. Cosner, 78 Nev. 242, 371 P.2d 178(1962); Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969). I find no abuse of discretion bythe trial court. In nearly every case concerning child custody decided by this court, to and includingPeavey v. Peavey, supra, we have solemnly declared that the welfare of minor children is ofparamount consideration, yet in this case, the majority pays slight attention to the bestinterest of the child standard and proceeds to declare that, now, the matter of primeconsideration is that custody shall not be given to a nonparent unless the parent is found to beunfit. I would reemphasize our long established position that the welfare of the child is

paramount and affirm the judgment of the lower court.

____________

86 Nev. 18, 18 (1970) Winn v. Winn

JOSEPH D. WINN, Appellant, v. SHIRLEYA. WINN, Respondent.

No. 5921

January 16, 1970 467 P.2d 601

Appeal from alimony and property provisions of a divorce decree. Second Judicial DistrictCourt, Washoe County; Emile J. Gezelin, Judge.

The Supreme Court, Zenoff, J., held that award of $4,000 to wife in lieu of a division ofproperty interests plus $100 per month alimony with a reservation of jurisdiction overalimony was not a abuse of discretion. Affirmed.

Raymond E. Sutton, of Las Vegas, for Appellant.

Fry and Fry, of Reno, and Bradley, Farris and Di Rosario, of Columbus, Ohio, forRespondent.

86 Nev. 18, 19 (1970) Winn v. Winn

1. Divorce. Trial court should not be held to a mathematical certainty in all divorce cases.

2. Divorce. Award of $4,000 to wife in lieu of a division of property interests plus $100 per month alimony with areservation of jurisdiction over alimony was not an abuse of discretion. NRS 125.150, subd. 1.

OPINION


Joseph Winn, a retired Air Force Colonel, was 47 years old, previously unmarried when heand Shirley were married in Columbus, Ohio, on June 1, 1965. Shirley was 39 at the time andwas also previously unmarried. She had worked for the state of Ohio for 17 years but quit her

job just prior to the marriage. She withdrew $3,400 from the retirement fund which she usedto purchase an automobile and made other expenditures. Joseph earned retirement pay of $576 per month plus approximately $100 per month ininterest income from investments. Before their marriage he had purchased securities worthapproximately $10,000, and owned a dwelling in Phoenix upon which he was makingmonthly payments, but was receiving rent from it. During the marriage he purchased a $75.00savings bond per month until he retired which roughly totaled $2,250 not considering theincreased value over the period until the divorce. After the separation in May 1968 Joseph purchased a lot in New Mexico for $3,495 in thenames of both parties and also purchased six lots in New Mexico and five lots in Florida inhis name only. After one year of marriage Shirley returned to work because, she explained, Joseph was sopenurious that she needed additional income for living expenses as well as to care for heraged mother. When she returned to work her income was considerably diminished for her jobwas of less stature than the one she had before their marriage. At the time of trial her bankaccount totaled $27.18. Many other facts were supplied by testimony from both Shirley and Joseph, but theyreflected nothing startling that would affect the adjudication of this court. The union lasted 21/2 years. The differences that arose between them, starting with the honeymoon, can largelybe attributed to their respective long-term bachelorhood and spinsterhood. Mutual

86 Nev. 18, 20 (1970) Winn v. Winn

obstinacy imbedded by the years undoubtedly made them irreconcilable. The divorce grantedupon the wife's cross-complaint is not being appealed by either party as to grounds. Only theaward of $4,000 in lieu of a division of property interests plus $100 per month alimony to thewife with a reservation of jurisdiction over the alimony by the trial court is questioned.

[Headnotes 1, 2] We find no abuse of discretion in this case. NRS 125.150(1) provides as follows: In granting a divorce, the court may award such alimony to the wife and shall make suchdisposition of the community property of the parties as shall appear just and equitable, havingregard to the respective merits of the parties and to the condition in which they will be left bysuch divorce, and to the party through whom the property was acquired, and to the burdens, ifany, imposed upon it, for the benefit of the children. A trial court should not be held to a mathematical certainty in all cases. Fox v. Fox, 81Nev. 186, 196, 401 P.2d 53 (1965). The trial court's objective is that of fairness which itachieves by the judge's personal observation of the parties and the evaluation of thecircumstances as they come before him in the arena of the trial court. The trial judge'sperspective is much better than ours for we are confined to a cold, printed record.Cunningham v. Cunningham, 61 Nev. 93, 95, 116 P.2d 188 (1941); Wittenberg v.

Wittenberg, 56 Nev. 442, 453, 55 P.2d 619 (1936); Freeman v. Freeman, 79 Nev. 33, 37, 378P.2d 264 (1963). Other courts, as well as Nevada's, have upheld awards in these similarsituations. Warren v. Warren, 189 N.E.2d 401 (Ill.App. 1963); Landreth v. Landreth, 326S.W.2d 128 (Mo.App. 1959); Mack v. Mack, 112 So.2d 861 (Fla.App. 1959); Armour v.Armour, 59 So.2d 51 (Fla. 1951); Conover v. Conover, 242 A.2d 481 (Md.App. 1968). The award in this case is affirmed.


____________

86 Nev. 21, 21 (1970) Fox v. Sheriff

ANTHONY FOX, Appellant, v. SHERIFF, CLARKCOUNTY, NEVADA, Respondent.

No. 6017

January 16, 1970 467 P.2d 1022

Appeal from denial of petition for writ of habeas corpus in case of bribery of a prospectivewitness. Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.

Petition for writ of habeas corpus. The district court denied petition, and appeal was taken.The Supreme Court, Zenoff, J., held that a subpoena need not be issued before a person canbe considered a prospective witness for purposes of statute making it unlawful to bribe awitness to influence his testimony. Affirmed.

Flangas & Stone, of Las Vegas, for Appellant.

Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and LarryC. Johns, Deputy District Attorney, Clark County, for Respondent.

1. Bribery. Statute making it unlawful to bribe a witness to influence his testimony requires an agreement orunderstanding between the giver of the bribe and the receiver; if the giver makes an offer and he reasonablybelieves that the receiver has accepted, then there is an understanding between the parties. NRS 199.240.

2. Bribery. Subpoena need not be issued before a person can be considered a prospective witness for purposes ofstatute making it unlawful to bribe a witness to influence his testimony. NRS 199.240.

OPINION


This is a case of attempted bribery of a prospective witness who had participated in anarcotics buy for which appellant Anthony Fox was arrested. On or about April 26, 1969, after Fox's arrest in January of 1969 which immediatelyfollowed the purchase of the narcotics from Carl Kaden, Lonnie Champion and Anthony Foxwent to Kaden's home and allegedly offered him $500 to leave town before the preliminaryhearing took place. At the time of the alleged attempt to induce Kaden to leave town Kadenhad not yet been subpoenaed as a witness nor was he officially informed

86 Nev. 21, 22 (1970) Fox v. Sheriff

of any proceedings. Kaden reported the attempted bribe for which Fox was arrested. Apreliminary hearing took place on this charge on May 6, 1969 from which Champion wasreleased but Fox was bound over for trial. Kaden had testified that he agreed to take the $500 and leave town but only because hewanted Fox and Champion to leave his home and this was his ruse to get them to leave. Nopayment to Kaden was made because that was to take place just before Kaden was to leavethe area. Fox allegedly told Kaden he wanted him to leave town because his testimony wouldbe unacceptable since Kaden was an ex-felon. Fox was certified for trial for violation of NRS199.240, 1 the bribing of a witness to influence his testimony. Subsequently he brought apetition for a writ of habeas corpus on the grounds of insufficiency of the evidence and,further, that what he was charged with was not a crime under the statute.

[Headnote 1] 1. NRS 199.240 requires an agreement or understanding between the giver of the bribe andthe receiver. If the giver makes an offer and he reasonably believes that the receiver hasaccepted, then there is an understanding between the parties. Ex parte Jang, 78 P.2d 250(Cal.App. 1938); People v. Schultz, 64 P.2d 440 (Cal.App. 1937); People v. McAllister, 277P. 1082 (Cal.App. 1929); cf. State v. Ferraro, 198 P.2d 120 (Ariz. 1948). Courts have not usually required that a case be pending before a conviction can beobtained. Evans v. Superior Court, 214 P.2d 579 (Cal.App. 1950); People v. McAllister,supra; People v. Martin, 300 P. 130 (Cal.App. 1931). Kaden's testimony that Fox hadinformed him at Kaden's home that a preliminary hearing on the narcotics complaint was tobe held on June 8, 1969 was the only evidence, in the record at least, that Fox had beencharged, but it is of no importance. The fact remains a case was pending whether essential tothe crime of bribery or not.

____________________

1 NRS 199.240. Bribing witness. Every person who shall give, offer or promise, directly or indirectly any

compensation, gratuity or reward to any witness or person who may be called as a witness, upon an agreement or

understanding that the testimony of such witness shall be thereby influenced, or who shall willfully attempt byany other means to induce any witness or person who may be called as a witness to give false testimony, or towithhold true testimony, shall be punished by imprisonment in the state prison for not less than 1 year nor morethan 10 years, and may be further punished by a fine of not more than $5,000.

86 Nev. 21, 23 (1970) Fox v. Sheriff

[Headnote 2] 2. The information filed against Fox on the bribery did state that Kaden will be called as awitness. The Nevada statute requires even less in that it includes the bribing of any personwho may be called as a witness. . . . No good reason appears to require that a subpoena shallfirst have had to be issued before a person can be considered a prospective witness. A witnesscan be a witness without a subpoena. In all respects the state's burden at the preliminary hearing was met. Affirmed.


____________

86 Nev. 23, 23 (1970) Morgan v. Sheriff

SHELBY MORGAN, Appellant, v. SHERIFF,CLARK COUNTY, NEVADA, Respondent.

No. 6047

January 16, 1970 467 P.2d 600

Appeal from denial of petition for writ of habeas corpus. Appellant bound over frompreliminary examination on charge of larceny from the person. Eighth Judicial District Court,Clark County; Clarence Sundean, Judge.

Defendant was bound over from preliminary examination on charge of larceny from theperson, and he petitioned for writ of habeas corpus. The district court denied petition, anddefendant appealed. The Supreme Court held that there was probable cause to believe thatdefendant, who was wearing pink suit when he was observed short distance away from pursesnatching about three minutes after occurrence at time no other person was on street, hadcommitted larceny from person of victim who had described assailant as having worn pinksuit and evidence was sufficient to order that defendant be held to answer in district court,notwithstanding that victim could not specifically identify defendant as her assailant,defendant was not in possession of her purse and he was never seen in possession of any of

victim's property. Affirmed.

Charles L. Kellar, of Las Vegas, for Appellant.


Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, andMelvyn T. Harmon, Deputy District Attorney, Clark County, for Respondent.

1. Criminal Law. There was probable cause to believe that defendant, who was wearing pink suit when he was observedshort distance away from purse snatching about three minutes after occurrence at time no other person wason street, had committed larceny from person of victim who had described assailant as having worn pinksuit and evidence was sufficient to order that defendant be held to answer in district court, notwithstandingthat victim could not specifically identify defendant as her assailant, defendant was not in possession of herpurse and he was never seen in possession of any of victim's property. NRS 171.206.

2. Criminal Law. If evidence produced at preliminary hearing establishes a reasonable inference that defendant committeda crime, then probable cause to order him to answer in district court has been established. NRS 171.206.

3. Criminal Law. In ruling upon whether evidence is sufficient to order a defendant bound over to district court frompreliminary examination, it is not function of Supreme Court or of courts below to pass upon whether ornot evidence is sufficient to justify a conviction. NRS 171.206.

OPINION

Per Curiam:

Appellant was charged with larceny from the person. At the preliminary hearing themagistrate found from the evidence that there was probable cause to believe that an offensewas committed and that appellant committed it. This is an appeal from an order of the EighthJudicial District Court denying appellant's petition for writ of habeas corpus. We affirm. Appellant complains that the evidence adduced at the preliminary hearing was insufficientto connect him with the alleged crime, although he concedes that there was sufficientevidence to indicate that a crime had been committed. Accordingly, the only issue before thiscourt is whether or not the evidence was such as would make it appear that there wasprobable cause to believe that appellant committed the alleged crime. The essential facts are not disputed, only the findings below based on such facts. Thevictim testified that after her car ran out of gas on March 15, 1969, she began walking onCarey 4*5


Street in Las Vegas. At 5:30 a.m. a person grabbed her purse and took it without her consent.She had no opportunity to see her assailant's face except to note that he was a male Negro.She did note that he wore a pink suit or pink pants. There were no other persons on CareyStreet at that time. Thereafter, a police car approached and the victim got into it. The policeofficer observed appellant at approximately 5:33 a.m. in an area about 50 to 75 feet from thevictim and he observed no other persons in the area. The police officer identified appellant asthe person who was in the area at that time. Appellant is a male Negro who was wearing apink jacket and pink pants at the time. Later, the victim's purse was found about 30 feet fromwhere she was first seen by the police officer and at a point between the victim and whereappellant was first seen. Appellant contends that the implications of the above facts are overcome by the failure ofthe victim to specifically identify him as her assailant, by the fact that he was not inpossession of her purse, and was never seen in possession of any of the victim's property. Wereject that contention.

[Headnotes 1-3] There was sufficient evidence to meet the requirements of NRS 171.206. If the evidenceproduced at the preliminary hearing establishes a reasonable inference that the defendantcommitted the crime, then probable cause to order him to answer in the district court has beenestablished. Hanley v. State, 85 Nev. 154, 451 P.2d 852 (1969). It is not the function of thiscourt or of the courts below to pass upon whether or not the evidence is sufficient to justify aconviction. Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963). Affirmed.

____________

86 Nev. 26, 26 (1970) Bair v. Berry

LLOYD P. BAIR, Appellant v. JERRY BERRY, MARGARET BERRY, C. W. HARPER,EDWARD T. LEONARD, JOHN J. HAUCK, THE OPERATIVE PLASTERERS AND

CEMENT MASONS INTERNATIONAL ASSOCIATION OF THE U.S. AND CANADA,and THE OPERATIVE PLASTERERS AND CEMENT MASONS, LOCAL 797,

Respondents.

No. 5831

STATE OF NEVADA on the Relation of WILLIAM D. MORRIS as a Member, FinancialSecretary, Treasurer, and Business Manager of LOCAL UNION 797 OF THE OPERATIVE

PLASTERS AND CEMENT MASONS INTERNATIONAL ASSOCIATION OF THEUNITED STATES AND CANADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT

COURT OF THE STATE OF NEVADA, in and for the County of Clark, Respondent.

No. 5966

January 21, 1970 464 P.2d 469

Application for writ of prohibition against further trial proceedings in a labor case ongrounds of federal preemption, also appeal from order for summary judgments dismissingactions against the officers and agents of the local union and the International labor union.

In suit alleging conspiracy to deny plaintiff employment because of his nonunion status,summary judgment was entered in favor of all defendants except local union. Plaintiffappealed and local union sought writ of prohibition to halt further proceedings against it. TheSupreme Court, Zenoff, J., held that absent any information of named conspirators and inlight of fact that, whenever accused union official went out on any job on which plaintiff wasworking, plaintiff was not fired but continued to work until job was finished, plaintiff couldnot recover for alleged conspiracy to deny him employment because of his nonunion status. Writ granted and summary judgment affirmed.

[Rehearing denied February 18, 1970]

Singleton, Beckley, DeLanoy, Jemison & Reid, of Las Vegas, for Appellant andRespondent Eighth Judicial District Court.

86 Nev. 26, 27 (1970) Bair v. Berry

Rudiak and Publow, of Las Vegas, for Respondents Jerry Berry, et al., and Petitioner.

1. Labor Relations. Without active involvement, international union as separate and distinct entity from local union memberis not accountable for misconduct of one of its local union members.

2. Conspiracy. A conspiracy must consist of a combination of two or more persons.

3. Judgment. Opposing party is not entitled to have motion for summary judgment denied on mere hope that at trial hewill be able to discredit movant's evidence, and opposing party must at hearing be able to point out to courtsomething indicating existence of triable issue of fact.

4. Conspiracy. Absent any information of named conspirators and in light of fact that, whenever accused union officialwent out on any job on which plaintiff was working, plaintiff was not fired but continued to work until jobwas finished, plaintiff could not recover for alleged conspiracy to deny him employment because of hisnonunion status. NRS 613.250 et seq., 613.280.

OPINION


Lloyd P. Bair is a plasterer by trade. At the time of the alleged events that led to this appealhe was a former member of Plasterers Local Union 797 having given up his membership fornonpayment of dues. It appears that he had enough money for dues, only that he did not wantto belong to the union. After what he claimed was his inability to either get a job through theunion hiring hall or to hold a job once he eventually was given one, he brought actionalleging that the local union, together with its officers and agents, and the International, ofwhich the local was a member, conspired to deprive him of his right to make a living inviolation of the Nevada right-to-work law, NRS 613.250 et seq. Affidavits, depositions and other documents were submitted to the trial court, whereuponsummary judgment was ordered in favor of all defendants except the Local Union. As to theLocal Union, summary judgment was denied but the prospective trial was uniquely limited topermitting the plaintiff to attempt to prove an oral contract between the union and others toconvert the nondiscriminatory hiring hall into a discriminatory hiring hall as a preliminary inthe consideration of 6

86 Nev. 26, 28 (1970) Bair v. Berry

any liability on behalf of the local to Bair. Bair appeals from the summary judgment releasingthe International and the Local Union seeks a writ of prohibition to halt further proceedingsagainst it. The appeal and writ were consolidated since the issue is common to each. 1. Bair sued in conspiracy. It is not alleged that the defendants, or any of them, made awritten or oral agreement in violation of the right-to-work law. The essence of the action isconspiracy (NRS 613.280); a conspiracy to deny Bair employment because of his nonunionstatus. Bair claims that he was prevented from working by the Local Union through itsofficers, Jerry and Margaret Berry, and the International through its officers, Edward Leonardand John Hauck (who were not served with process), by inducing employers and otherpersons not to hire him. The International's liability is predicated upon its purported failure tosee that one of its local unions conducted its affairs properly.

[Headnote 1] Bair does not accuse the International of actively participating in the wrongful acts of thelocal and its officers. An invalid provision in the local bylaws was in years gone by sent to theInternational and while the International disclaimed any knowledge or approval of thatprovision the objection must be discounted in any event. Bair had refused to pay his duesbefore any misconduct took place thus no contractual relationship existed between theInternational and Bair because he was dropped from membership. More importantly, hisinability to show active complicity on the part of International is fatal to his case against him.Without active involvement the International, being a separate and distinct entity from a localunion member (United Mine Workers of America v. Coronado Co., 259 U.S. 344, 385

(1922)), is not accountable for the misconduct of one of its local union members. LocalUnion No. 984 v. Humko Co., 287 F.2d 231 (6th Cir. 1961); N.L.R.B. v. Local Union No.751 United Bhd. of Carpenters, 285 P.2d 633, 641 (9th Cir. 1960); United Bhd. of Carpentersv. N.L.R.B., 286 F.2d 533, 538 (D.C.Cir. 1960). It is also quite probable that the subject ofinvolvement of the International is preempted by the N.L.R.A. San Diego Building TradesCouncil v. Garmon, 359 U.S. 236 (1959); United Ass'n of Journeymen Plumbers' Union v.Borden, 373 U.S. 690 (1963); Iron Workers v. Perko, 373 U.S. 701 (1963).

86 Nev. 26, 29 (1970) Bair v. Berry

[Headnote 2] 2. His efforts to establish even inferentially a conspiracy must also fail. The voluminousrecord is empty of any support for his accusation that a conspiracy against him existed. Hestated, It was common knowledge Berry was conspiring against me, but nowhere does itappear who was conspiring with whom or at all. Catrone v. 105 Casino Corp., 82 Nev. 166,170, 414 P.2d 106 (1966). A conspiracy must consist of a combination of two or morepersons, but the only persons he accuses are the Berrys who represented the union. Headmitted that he did not have knowledge of facts regarding the alleged conspiracy. He saidonly that facts might be within the knowledge of his attorney or other witnesses. The courtordered him time and again to fully respond to interrogatories and requests for admissionsregarding witnesses and their prospective testimony but he was unable to supply anyinformation of named conspirators nor do any appear as parties to the action or asparticipants. Whenever Berry, the union official, went out on any job upon which Bair wasworking, even though he may have engaged in conversations with the job steward as Bairclaims, Bair was not fired, but in all instances, by his own admission, he continued to workuntil the job was finished. His sole and only complaints are directed against the Berrys and noone else.

[Headnote 3] In Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963), a case classic for itsliberality in permitting inferences to overcome a motion for summary judgment, at least someminimum standards were established for the quality of facts that should be shown to allow thetrial court to pass upon as controverted evidence. But the rule is well-settled that the opposingparty is not entitled to have the motion for summary judgment denied on the mere hope thatat trial he will be able to discredit movant's evidence; he must at the hearing be able to pointout to the court something indicating the existence of a triable issue of fact. Thomas v.Bokelman, 86 Nev. 10, 462 P.2d 1020 (1970).

[Headnote 4] Prior to the commencement of his lawsuit in the state court Bair twice complained to theN.L.R.B. of the union conduct of discriminating against him for employment. He wasrejected on the first application for lack of merit and he voluntarily withdrew the second.

Those applications were presented into

86 Nev. 26, 30 (1970) Bair v. Berry

this record and, again, as was the case of his written statements, he did not indicate or showanything of a conspiracy between the union and other persons except to use the wordconspire. Having failed in any respect to assert facts from which reasonable inferences canbe drawn his cause of action must fail. Having so decided, we do not reach the issue of federal preemption. The summary judgments are affirmed and the writ of prohibition against further trialproceedings is granted.

Collins, C. J., Batjer and Thompson, JJ., and Young, D. J., concur.

____________

86 Nev. 30, 30 (1970) Boyle v. State

MARVIN DEAN BOYLE, Appellant, v. THESTATE OF NEVADA, Respondent.

No. 5915

January 22, 1970 464 P.2d 493

Appeal from a conviction by a jury of burglary. Eighth Judicial District Court, ClarkCounty; Alvin N. Wartman, Judge. Defendant was convicted in district court of burglary and he appealed. The SupremeCourt, Zenoff, J., held that circumstances of defendant's arrest just past midnight as he wascoming out of building in which offices had been ransacked were enough to supportpresumption that defendant intended to commit larceny even though defendant saidotherwise, and conclusion of intent to commit larceny was not arbitrary or irrational. Affirmed.

James D. Santini, Public Defender, and H. Leon Simon, Deputy Public Defender, ClarkCounty, for Appellant.

Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, andRichard D. Weisbart, Deputy District Attorney, Clark County, for Respondent.

1. Criminal Law; Larceny. Jury is not compelled to accept defendant's denial of intent to commit larceny but rather can perform itsduty to evaluate facts surrounding incident.

86 Nev. 30, 31 (1970) Boyle v. State

2. Burglary. Circumstances of defendant's arrest just past midnight as he was coming out of building in which officeshad been ransacked were enough to support presumption that defendant intended to commit larceny eventhough defendant said otherwise, and conclusion of intent to commit larceny was not arbitrary or irrational.NRS 205.065.

OPINION


After a jury trial appellant Marvin Dean Boyle was convicted of violating NRS 205.065,the crime of burglary. In the course of his instructions the trial court informed the jury in the language of thestatute which states that one who unlawfully enters a building is deemed to have entered withthe intent to commit larceny unless such unlawful entry shall be explained by testimonysatisfactory to the jury to have been made without criminal intent. 1 Boyle was caught coming out of a building just past midnight on the morning ofSeptember 2, 1968 by two sheriff deputies who were checking the doors of the warehouse onHighland Avenue in Las Vegas. They had discovered that the front window on the door toone of the offices had been smashed and focused their automobile headlights on the door.After summoning help, one of the officers saw Boyle's head peep out from the rear door, lookboth ways, then start out. He was immediately arrested. The officers found that two officeshad been ransacked inside the building; one owned by Alfred E. Lee Landscaping Companyfor whom Boyle had worked for a short period of time about four months prior to the arrest.The office next to Lee's was also in a state of disarray. Nothing however, in either office wasmissing although the cash box normally kept in the secretary's drawer of the landscapingcompany was on top of the desk. Boyle's excuse was that he had been drinking all day anddecided to go into Lee's office for his withholding tax form and to see if any back wages wereowed to him. The secretary and Lee testifying for both the

66 7

____________________

1 NRS 205.065 Presumption of intent. Every person who shall unlawfully break and enter or unlawfully enter

any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building,

tent, vessel, vehicle, vehicle trailer, semitrailer or housetrailer, or railroad car shall be deemed to have brokenand entered or entered the same with intent to commit grand or petit larceny or a felony therein, unless suchunlawful breaking and entering or unlawful entry shall be explained by testimony satisfactory to the jury to havebeen made without criminal intent.

86 Nev. 30, 32 (1970) Boyle v. State

prosecution and Boyle stated that Boyle had only once several months before asked for histax statement on the day he left the employment and that no money was due him. Boyle concedes the constitutionality of the statutory presumption unless such unlawfulentry shall be explained by testimony satisfactory to the jury. White v. State, 83 Nev. 292,295, 429 P.2d 55 (1967); Schnepp v. State, 82 Nev. 257, 261, 415 P.2d 619 (1966);McNeeley v. State, 81 Nev. 663, 667, 409 P.2d 135 (1965); cf. United States v. Gainey, 380U.S. 63, 70 (1965); Johnson v. United States, 255 A.2d 494 (D.C.App. 1969). His contentionnow is that having denied an intention to steal the presumption has been negated becausethere is no evidence other than the presumption to prove intent to commit larceny.

[Headnotes 1, 2] To the contrary, the jury is not compelled to accept solely his denial of intent to committhe larceny but rather can perform its duty to evaluate the facts surrounding the incident. Statev. Dirienzo, 251 A.2d 99, 109 (N.J. 1969); People v. Michaels, 13 Cal.Rptr. 900, 902(Cal.App. 1961). Boyle was arrested on the premises where he had not been employed forfour months under furtive circumstances such as the broken window for entry, his car parkedat the side of the building instead of on the parking lot, the cash box of his former employeron the secretary's desk instead of in it where it was customarily kept, the adjoining officeransacked although it is inconceivable that his tax form would be there where he had neverworked, and that these happenings were in the darkness of midnight. Those facts proved wereenough to support the presumption that he intended to commit larceny even if he saidotherwise. Such a conclusion cannot be said to be arbitrary or irrational under the citedcases.

Affirmed.


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86 Nev. 33, 33 (1970) Winston v. Warden

FRANK WINSTON, Petitioner, v. WARDEN, NevadaState Prison, Respondent.

No. 6065

January 22, 1970 464 P.2d 30

Original proceeding in habeas corpus.

Petitioner, who had been convicted of forgery, sought writ of habeas corpus. The SupremeCourt, Thompson, J., held that one who signs his true signature to a check on a bank in whichhe has no checking account is not guilty of felony of forgery but of misdemeanor of drawing acheck on bank with which he has no account. Petition is granted and petitioner is forthwith discharged from custody.

Johnson & Sloan, of Reno, for Petitioner.

Harvey Dickerson, Attorney General, and Robert F. List, Carson City District Attorney,for Respondent.

1. Forgery. Essence of forgery is making of a false writing. NRS 205.085, subd. 2, 205.090, 205.100.

2. Forgery. Statutory provision that proof that purported drawer had no account at bank shall be deemed sufficientevidence to sustain allegation of nonexistence of drawer applies to a fictitious person and does not apply inface of evidence that name used as drawer is in fact name of person who drew the check. NRS 205.100.

3. False Pretenses; Forgery. One who signs his true signature to a check on a bank in which he has no checking account is not guiltyof felony of forgery but of misdemeanor of drawing a check on bank with which he has no account. NRS205.100, 205.130.

OPINION


This is an original proceeding for a writ of habeas corpus through which the petitionerseeks release from the Nevada State Prison where he is serving a six year sentence forforgery. He contends that his crime was not the felony of forgery but instead the misdemeanorof drawing a check on a bank with which he had no account. For reasons hereafter expressedwe have concluded that his contention is valid, and direct that he be discharged from custodyforthwith. The facts are these. The petitioner issued a $20 check payable to Bobby Page's. The checkwas drawn on the Nevada Bank of Commerce, Carson City, and signed by petitioner as


drawer. He had no account with that bank. He was charged with having violated NRS205.100, one of the forgery sections of our Code.

[Headnote 1] Professor Perkins advises that the essence of forgery is the making of a false writing. It isan indispensable requirement of forgery that the writing be false. It may have been false in itsinception or may have been made so by subsequent tampering with what was originallygenuine; but it must be a false writing. In this connection it is essential to distinguish betweena false instrument and false statements in an instrument. No amount of misstatement of factand no amount of fraud will make a false instrument out of what purports to be the veryinstrument which it is in fact and in law. Perkins on Criminal Law, p. 296 (Foundation Press1957). See also: DeRose v. People, 171 P. 359, 360 (Colo. 1918); Marteney v. United States,216 F.2d 760, 763-64 (10 Cir. 1954); cases collected, Annot., 41 A.L.R. 229. The several sections of our Code describing forgery emphasize the indispensablerequirement mentioned by the Professor. For example, NRS 205.085(2) provides thatforgery shall include the false making of an instrument, and the alteration of a genuineinstrument; NRS 205.090 refers to the person who shall falsely make, after, etc.; and NRS205.100 refers to the person who shall make, pass, utter or publish any fictitious bill, noteor check. In short, the writing must be false. Notwithstanding these clear expressions of legislative intention, the State argues that thewording of NRS 205.100, 1 and

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____________________

1 NRS 205.100 provides: 1. Every person who shall make, pass, utter or publish, with an intention to defraud

any person or persons, body politic or corporate, either in this state or elsewhere, or with the like intention shallattempt to pass, utter or publish any fictitious bill, note or check purporting to be the bill, note or check, or otherinstrument in writing, for the payment of money or property of some bank, corporation, copartnership orindividual, when in fact there shall be no such bank, corporation, copartnership or individual in existence, theperson knowing the bill, note, check or instrument in writing for the payment of money or property or any laborclaim or claims to be fictitious, shall be deemed guilty of forgery, and on conviction thereof shall be punished byimprisonment in the state prison for a term not less than 1 year nor more than 10 years, or by a fine of not morethan $5,000, or by both fine and imprisonment. 2. Whenever such note, bill, check or other instrument in writing is drawn upon any bank, proof that thepurported drawer of the same had no account at the bank shall be deemed sufficient evidence to sustain theallegation of the nonexistence of the drawer of such instrument.


particularly section 2 thereof broadens the traditional notion of forgery to include that whichoccurred in this case. Section 1 covers, among other circumstances, the situation where oneattempts to defraud another by using the name of a nonexistent person as the drawer of the

check. And, section 2 provides that proof that the purported drawer had no account at thebank shall be deemed sufficient evidence to sustain the allegation of the nonexistence of thedrawer. Accordingly, the State reasons that if the drawer had no account at the bank he isnonexistent for the purposes of NRS 205.100 and may be found guilty of forgery.

[Headnote 2] We do not so construe the statute. It is not the purpose of section 2 to deny the truth; tomake false that which is genuine. Indeed, the wording of section 2 leads inevitably to theconclusion that it applies to a fictitious person since the words purported drawer are used,thus indicating that the name used as drawer is not the name of the person who drew thecheck. In such circumstances, the absence of an account with the bank in the drawer's nameis, by statute, made prima facie evidence that the drawer was a fictitious person. State v.Williams, 46 Nev. 263, 270, 210 P. 995 (1923). Its apparent purpose is to aid the State inproving a negativethe nonexistence of the drawer. It does not apply in the face of evidencethat the name used as drawer is in fact the name of the person who drew the check.

[Headnote 3] One who signs his true signature to a check upon a bank in which he has no checkingaccount is not guilty of forgery. The instrument is genuine, even though the statements in itare false. 2 Those false statements give rise to an offense within NRS 205.130; an offensewith which this petitioner was not charged. It is ordered that the petitioner be discharged from custody.

Collins, C. J., Zenoff, Batjer, and Mowbray, JJ., concur.

____________________

2 The case of In re Clemons, 151 N.E.2d 553 (Ohio 1953), is contra to our view. That decision, which the

respondent so heavily relies upon, has been soundly criticized by commentators. See: 72 Harv.L.Rev. 566; 45Va.L.Rev. 286.

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86 Nev. 36, 36 (1970) State ex rel. Gutting v. Lamb

THE STATE OF NEVADA, ex rel. RUSSELL GARY GUTTING, Jr., Appellant, v. RALPHLAMB, CLARK COUNTY SHERIFF, and CIRCUS-CIRCUS, INC., Respondents.

No. 5941

January 23, 1970 464 P.2d 27

Appeal from denial of a writ of mandamus. Eighth Judicial District Court, Clark County;

Alvin N. Wartman, Judge.

Casino, by writ of attachment, impounded casino chips which had been seized by sheriff'sdepartment when defendant was booked for allegedly committing an offense. Defendantsought release of chips by writ of mandamus to direct court to order release of chips onground that goods in custody of sheriff's department could not be attached. The district courtdenied petition for mandamus, and defendant appealed. The Supreme Court held thatdefendant could seek to remove attachment by motion and thus had an adequate remedy atlaw. Affirmed.

[Rehearing denied February 18, 1970]

Tad Porter, of Las Vegas, for Appellant.

George E. Franklin, Jr., District Attorney, and James M. Bartley, Deputy DistrictAttorney, Clark County, for Respondent Ralph Lamb, Clark County Sheriff.

Wiener, Goldwater & Galatz and J. Charles Thompson, of Las Vegas, for RespondentCircus-Circus, Inc.

Mandamus. Defendant seeking release of casino chips, seized by sheriff's department when he was booked forallegedly committing an offense, after casino had impounded chips by writ of attachment could seek toremove attachment by motion and thus had an adequate remedy at law, and writ of mandamus would notlie. NRS 31.200, 34.170.

OPINION

Per Curiam:

While Russell Gutting was in jail, Circus-Circus, Inc., a Clark County casino, by writ ofattachment impounded $6,700.00 in Circus-Circus, Inc., casino chips which had been seizedby the sheriff's department when he was booked

86 Nev. 36, 37 (1970) State ex rel. Gutting v. Lamb

for allegedly committing an offense. Gutting sought release of the chips by writ of mandamusto direct the court to order release of the chips on the ground that goods in the custody of thesheriff's department cannot be attached. He appeals from the denial of the petition formandamus. The writ of mandamus lies only when there is no plain speedy and adequate remedy inthe ordinary course of law. NRS 34.170. Petitioner can seek to remove the attachment by

motion under NRS 31.200. He therefore has an adequate remedy at law. The denial of the petition for a writ of mandamus is affirmed.

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86 Nev. 37, 37 (1970) Hill v. State ex rel. Department of Highways

CAPON HILL, Appellant, v. THE STATE OF NEVADA, on Relation of Its DEPARTMENTOF HIGHWAYS, Respondent.

No. 6092

January 23, 1970 464 P.2d 468

Motion to dismiss appeal from the judgment of the trial court dismissing the complaint.Complaint dismissed after trial without a jury in the Eighth Judicial District Court, ClarkCounty; Howard W. Babcock, Judge.

Action seeking to have set aside as null and void a quitclaim deed, after which defendantfiled its answer and counterclaim and brought a third-party action against certain otherparties. The district court dismissed the complaint, and appeal was taken. On motion todismiss appeal the Supreme Court held that judgment was not subject to appeal where trialcourt, which entered judgment dismissing plaintiff's complaint but did not reach decision orrule on counterclaim or third-party complaint, did not make the requisite determination of nojust reason for delay. Dismissed.

Charles L. Kellar, of Las Vegas, for Appellant.

Harvey Dickerson, Attorney General, and Melvin L. Beauchamp, Deputy AttorneyGeneral, for Respondent.

1. Appeal and Error. Where there is a judgment dismissing fewer than all parties to an action, and there is no expressdetermination that there is 8 8 8


no just reason for delay by lower court, the judgment is not an appealable final judgment. NRCP 72(b)(1).2. Appeal and Error.

Judgment was not subject to appeal where trial court, which entered judgment dismissing plaintiff's

complaint but did not reach decision or rule on counterclaim or third-party complaint, did not make therequisite determination of no just reason for delay. NRCP 54(b), 72(b)(1).

OPINION

Per Curiam:

Appellant, who was plaintiff below, brought suit against Respondent to have set aside asnull and void a quitclaim deed executed by him conveying to Respondent certain realproperty in Las Vegas. Thereafter, Respondent filed its Answer and Counterclaim andbrought a Third Party action against certain other parties. All of said pleadings were filed inthe same suit below, being that originally brought by Appellant. After trial without a jury, the court below found against Appellant on the claim againstRespondent, and entered its judgment dismissing said complaint. No decision was reached orruling made on the Counterclaim or Third Party Complaint of Respondent. Appellant has filed this appeal from the judgment of the trial court dismissing thecomplaint. Respondent moved to dismiss the appeal. NRCP 54(b) explicitly provides that when more than one claim for relief is presented inan action, whether as a claim, counterclaim, cross claim, or third party claim, or whenmultiple parties are involved, the court may direct the entry of a final judgment as to one ormore but fewer than all of the claims or parties only upon an express determination that thereis no just reason for delay. . . . (Emphasis supplied.) This rule is determinative of the issue.

[Headnote 1] This court has repeatedly held that where there is a judgment dismissing fewer than allparties to an action, and there is no express determination that there is no just reason for delayby the lower court, the judgment is not a final judgment appealable under NRCP 72(b)(1).Wilmurth v. State, 79 Nev. 490, 387 P.2d 251 (1963); Aldabe v. Evans, 83 Nev. 135, 425P.2d 598 (1967); Donoghue v. Rosepiler, 83 Nev. 251, 427 P.2d 956 (1967).


[Headnote 2] In this case, the trial court did not make the prerequisite determination of no just reason fordelay. Accordingly, the judgment appealed from is not subject to appeal under NRCP72(b)(1), and Respondent's motion must be granted; without prejudice, however, to the filingof such appeal as appellant may deem appropriate after final determination of thecounterclaim and third party complaint by the court below. It is so ordered.

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86 Nev. 39, 39 (1970) City of Reno v. Folsom

CITY OF RENO, NEVADA, a Municipal Corporation, Appellant, v. D. W. FOLSOM, T. E.and A. R. NEVIN, G. G. and G. C. HIRSCH, L. W. KNUF, J. J. and J. M. HART, J. F.

and M. C. FARNESI, Respondents.

No. 5820

January 26, 1970 464 P.2d 454

Appeal from judgment of the Second Judicial District Court, Washoe County; John W.Barrett, Judge.

City appealed from judgment of the district court declaring special tax assessments thathad been levied against property owners illegal on ground that city had acted arbitrarily andfraudulently in making assessments. The Supreme Court, Mowbray, J., held that in absence ofevidence of benefit to property assessed in record of hearing before city council, order of citycouncil approving assessment roll was illegal and void. Affirmed.

Clinton E. Wooster, City Attorney, of Reno, for Appellant.

Cooke & Roberts, of Reno, for Respondents.

1. Eminent Domain; Municipal Corporations. Only justification for special assessment tax is that proposed improvements of assessment district willresult in a benefit to those property owners included in assessment, and absent a benefit to propertyassessed, special assessment is illegal and void as taking of private property for public use withoutcompensation.

2. Municipal Corporations. Assessment roll is prima facie evidence of the regularity of assessments, but once property ownerschallenge its validity on ground that there is in fact no benefit accruing to their property as assessed, burdenshifts to administrative agency that caused roll to be prepared to show and find that there is a benefit.

86 Nev. 39, 40 (1970) City of Reno v. Folsom

3. Municipal Corporations. Fact that owners' properties abut improved street is not alone sufficient to show that street improvementwill bring benefit to abutting property owners and justify subjecting them to assessment.

4. Municipal Corporations. Scope of review by district court of assessments against property owners for municipal improvements islimited to record made before administrative tribunal, and absent a showing that agency acted fraudulentlyor arbitrarily, district court may not substitute its opinion for that of the city council. NRS 271.455,

nevada reports 1970 (86 nev.).pdf

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