Nevada Reports 1958 (74 Nev.) PDF

74 Nev.
1, 1 (1958)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 74
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74 Nev. 1, 1 (1958) Cantrell v. Lugaski
CLEO CANTRELL, Appellant, v. PETE LUGASKI, as City Marshal of the City of Fallon,
Nevada, Respondent.
No. 4023
January 14, 1958. 320 P.2d 423.
Appeal from the First Judicial District Court, Churchill County; Frank B. Gregory, Judge.
Mandamus proceeding brought to compel issuance of certificate authorizing petitioner to
obtain employment as a dealer of gambling games or as a bartender in Fallon. The lower
court denied the relief sought, and an appeal was taken. The Supreme Court, Eather, J., held
that evidence of arrests not culminating in convictions had been admissible upon issue as to
whether petitioner had good moral character which Fallon ordinance made prerequisite to
obtaining a certificate, and held that however slight probative value of proof of such arrests
might be, it had been sufficient to demand explanation.
Affirmed.
(Rehearing denied February 5, 1958.)
Stewart & Horton, of Fallon, for Appellant.
Diehl & Recanzone, of Fallon, for Respondent.
1. Mandamus.
Fact that Fallon ordinance, making good moral character a qualification for certificate necessary to obtain
employment as dealer of gambling games or bartender, also specified certain criminal convictions within
period of five years as disqualifying did not render evidence of other crimes inadmissible on moral
character issue.
2. Mandamus.
In mandamus proceeding brought to compel issuance of certificate authorizing petitioner to obtain
employment as a dealer of gambling games or as a bartender in Fallon, evidence of arrests not culminating
in convictions was admissible upon issue as to whether petitioner had good moral character which Fallon
ordinance made prerequisite to obtaining of certificate; and however slight probative value of proof of such
arrests might be, it was sufficient to demand explanation.
OPINION
By the Court, Eather, J.:
This is an appeal from an order of the First Judicial District Court of the State of Nevada,
denying a petition for a writ of mandate and vacating the alternative writ.
Appellant's petition in the court below sought a writ compelling the respondent Pete
Lugaski, as city marshal of Fallon, to issue what is known as an employment certificate
authorizing the petitioner to obtain employment as a dealer of gambling games and as a
bartender. Pursuant to the provisions of Fallon's city ordinance No. 214 the marshal had
investigated petitioner's legal qualifications and had refused the employment certificate upon
the ground that petitioner did not possess good moral character. In the proceedings below
petitioner contended that he did possess good moral character and that the marshal, therefore,
had acted arbitrarily in refusing the certificate. Following hearing, the court below denied the
writ and this appeal was taken. Petitioner here contends that the court below erred in
admitting evidence of certain criminal convictions and arrests as material and competent
evidence upon the issue of petitioner's moral character.
arrests as material and competent evidence upon the issue of petitioner's moral character.
The ordinance in question provides as follows: Sec. 1 is devoted mainly to definitions.
Appellant comes within the definition of employees of gambling houses and within the
definition of employees of other establishments where alcoholic beverages are sold at retail
for consumption on the premises.
Sec. 2 declares the policy of the ordinance to the end that gambling establishments and
establishments where alcoholic beverages are sold, be licensed and controlled so as to better
protect the public health, safety, morals, good order and general welfare of the inhabitants of
the city. To such end the city marshal is ordered to investigate into the legal qualifications of
the applicants for licenses and applicants for employment certificates. The following persons
are declared to be not qualified or satisfactory to be granted an employment certificate:
(a) A person who shall have been convicted within the past five years: 1. Of a felony or of
any crime which under the laws of this state would amount to a felony. 2. In this state or
elsewhere, of any crime of which fraud or intent to defraud was an element. 3. Of larceny in
any degree. 4. Of buying or receiving stolen property. 5. Of unlawful entry of a building. 6.
Of unlawfully possessing or distributing narcotic drugs. 7. Of illegally using, carrying or
possessing a pistol or other dangerous weapon.
(b) A person under the age of twenty-one years.
(c) A person who does not possess a good moral character.
In the proceeding below petitioner tendered proof of good moral character. He was then
extensively cross-examined with references to brushes with the law. Over the objections of
his attorney he admitted that from 1936 through January 1955 he had been arrested on 12
occasions. In two instances he had been convicted of the crime for which he had been
arrested, in one case serving a sentence and in the other receiving suspended sentence. As to a
third arrest he forfeited bail. As to the remaining instances the disposition does not appear
from his testimony.
remaining instances the disposition does not appear from his testimony. In some instances he
was not asked as to the disposition. In others he was asked, but did not recall. Two arrests
were directly involved with gambling activities. In one case the arrest was for unlawful
possession of equipment for making gambling chips. Petitioner admitted possession of the
equipment but denied its illegality, although the equipment had been impounded and never
returned to him. In the second case he was charged with possessing cheating devices. His
explanation appears to admit possession. When asked if he was not arrested for possessing
equipment for slugging slot machines he stated, They called it a cheating device but it was
not for slugging slot machines. In five remaining cases, while admitting the fact of arrest, he
could not recall the crime with which he had been charged. The arrests occurred in various
cities in Nevada, California, Utah, Colorado, Washington and Idaho, after a brief residence in
each of such cities.
There was no redirect examination. No explanation of the arrests or of their outcome was
given by the petitioner.
[Headnote 1]
Petitioner first contends that under the provisions of Sec. 2(a) of the Fallon ordinance no
evidence of criminal activity is material save evidence of convictions within the preceding
five years of the crimes there specified; that for this reason the testimony of the petitioner
with reference to criminal conviction and arrest was erroneously admitted. In many instances
the arrests he admitted occurred more than five years prior to the date of his application and
did not deal with crimes of the character specified in Sec. 2(a).
The fact that the ordinance has specified certain criminal convictions within the period of
five years as disqualification does not render other evidence of crime or criminal activity
immaterial to the issue of the applicant's moral character. Such other criminal matters simply
do not conclusively result in disqualification. Clearly they must, however, be held to bear
upon the issue of moral character and thus be relevant considerations upon that question.
issue of moral character and thus be relevant considerations upon that question.
[Headnote 2]
Petitioner next contends that evidence of arrests not shown to have culminated in
convictions is inadmissible upon the issue of moral character since such arrests amount to no
more than unestablished assertions of guilt and are as consistent with the fact of innocence as
with guilt.
Upon this proposition, authority is remarkably scant. Petitioner first refers us to comment
of Professor Wigmore upon the admissibility of evidence of arrests for purposes of
testimonial impeachment. 3 Wigmore on Evidence, 3d Ed. 545, sec. 980a. Cases of
testimonial impeachment are clearly distinguishable from the case at bar, however. In cases of
impeachment the character of the witness sought to be impeached is a collateral issue which
cannot be permitted to be pursued to the point where confusion results. Limits upon the use of
extrinsic evidence for purposes of impeachment are, therefore, necessary as a matter of
policy. Furthermore, in the ordinary case of impeachment rebuttal of the accusations of
misconduct is not available to the witness so accused. In the case at bar the sole issue before
the court was that of the petitioner's moral character. The fact of misconduct was clearly
pertinent. Rebuttal of accusations of misconduct was available to the petitioner.
The only court decision upon this question which has been cited to us is the recent case of
Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796. On certiorari
to the Supreme Court of New Mexico, the Supreme Court of the United States reversed the
state court in its determination that an applicant for the bar had failed to show good moral
character. Among the state court's considerations was the fact of three arrests, none of which
had culminated in indictment or conviction.
The supreme court did not hold evidence of the arrests inadmissible, however. It held them
to be of very little, if any, probative value in showing that [the applicant] has engaged in
any misconduct."
has engaged in any misconduct. It concluded that the arrests were wholly insufficient to
support a finding that Schware had bad moral character * * *. The court emphasized the fact
that the arrests had been fully and persuasively explained by Schware in such a manner as to
eliminate reflection upon his moral character.
However slight the probative value of the fact of arrest might be, where the issue is good
moral character the fact is sufficient to demand explanation such as was given in the Schware
case. The petitioner cannot be said to have met his burden by standing mute in the face of
formal accusation of misconduct.
We conclude that it was not error to admit the evidence of arrests and that under the
circumstances of this case the evidence of convictions and arrests was sufficient to support a
determination that the applicant was not of good moral character.
Questions regarding the nature of the marshal's action, the nature of the lower court's
consideration of that action or of the propriety of the remedy here sought in the light of such
questions, have not been raised by the parties and this court has given no consideration to
such questions.
Affirmed.
Badt, C. J., and Merrill, J., concur.
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74 Nev. 6, 6 (1958) Acoustics, Inc. v. Amer. Surety
ACOUSTICS, INC., a California Corporation, Appellant v. AMERICAN SURETY
COMPANY OF NEW YORK, a New York Corporation, Respondent.
No. 4027
January 20, 1958. 320 P.2d 626
Appeal from the Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
Department No. 1.
Action by unpaid subcontractor against surety on contractor's bond. The lower court
entered order dismissing the complaint, and the plaintiff appealed. The Supreme Court,
Merrill, J., held that where bond provided that contractor {1) would faithfully perform
construction contract and {2) would indemnify owner for any damage arising out of
contractor's nonperformance and {3) would reimburse owner for latter's expenses in
event of contractor's default, and bond limited aggregate liability of surety to owner,
lender, laborer, or materialman to stated penal sum, and construction contract requiring
contractor to pay subcontractors was by reference made part of bond, the bond was not
merely an undertaking for indemnity, and unpaid subcontractor was such third party
beneficiary of surety's promise to pay subcontractors as to have right of action against
surety.
Court, Merrill, J., held that where bond provided that contractor (1) would faithfully perform
construction contract and (2) would indemnify owner for any damage arising out of
contractor's nonperformance and (3) would reimburse owner for latter's expenses in event of
contractor's default, and bond limited aggregate liability of surety to owner, lender, laborer, or
materialman to stated penal sum, and construction contract requiring contractor to pay
subcontractors was by reference made part of bond, the bond was not merely an undertaking
for indemnity, and unpaid subcontractor was such third party beneficiary of surety's promise
to pay subcontractors as to have right of action against surety.
Reversed and remanded.
Morton Galane, of Las Vegas, for Appellant.
Morse, Graves & Compton, of Las Vegas, for Respondent.
1. Contracts.
Where bond provided that contractor (1) would faithfully perform construction contract and (2) would
indemnify owner for any damage arising out of contractor's nonperformance and (3) would reimburse
owner for latter's expenses in event of contractor's default, and bond limited aggregate liability of surety to
owner, lender, laborer or materialman to stated penal sum, and construction contract requiring contractor to
pay subcontractors was by reference made part of bond, the bond was not merely an undertaking for
indemnity, and unpaid subcontractor was such third party beneficiary of surety's promise to pay
subcontractors as to have right of action against surety.
2. Contracts.
Where a contract contains a promise for benefit of one not a party to contract, the third party beneficiary
has a direct right of action against the promisor.
3. Principal and Surety.
While words of condition are not, in form, words of promise, yet in cases of penal bonds they must be so
construed, otherwise the sole and unlimited promise of the surety is payment of the penal sum.
A surety bond that is conditioned on full performance of his contract by the principal, will operate in
favor of such third parties as the principal, by his contract with the promisee, undertakes to pay; the bond
need be no more specific.
The contract of a compensated surety should be interpreted liberally in the interest of the promisee and
beneficiaries, rather than strictly in favor of surety.
OPINION
By the Court, Merrill, J.:
[Headnote 1]
This action arises out of a construction contract and the surety bond issued to the owner in
connection therewith. The action is brought upon the bond against the surety by an unpaid
subcontractor. Plaintiff's complaint was ordered dismissed by the trial court upon the ground
that the bond by its terms conferred no rights upon job creditors and was limited to
indemnification of the owner. Upon this appeal by the plaintiff creditor the sole question is
whether the trial court erred in so construing the bond.
The bond is entitled Contract Bond. It recites that the owner had entered into a contract
with the McGrath Construction Company of Las Vegas, Nevada for construction of a
shopping center in Las Vegas and provides that that contract by specific reference is made a
part hereof. The conditions of the surety's obligations are stated as follows: The condition
of this obligation is such that if the principal shall faithfully perform the contract on his part,
and shall fully indemnify and save harmless the owner from all cost and damage which he
may suffer by reason of failure so to do, and shall fully reimburse and repay the owner all
outlay and expense which the owner may incur in making good any such default, then this
obligation shall be null and void, otherwise, it shall remain in full force and effect. A further
significant proviso contained in the bond is as follows: Further provided that the aggregate
liability of the surety under this bond to owner, lender, laborer, or materialman, shall be
limited to the penal sum herein fixed.
By the construction contract which was by reference made a part of the bond the
contractor promised the owner that it would pay all valid bills of subcontractors.
made a part of the bond the contractor promised the owner that it would pay all valid bills of
subcontractors.
A combination of two well-recognized principles of law compels the conclusion that the
trial court erred in its construction of the bond.
[Headnote 2]
First: Where a contract contains a promise for the benefit of one not a party to the contract,
the third party beneficiary has a direct right of action against the promisor. Painter v. Kaiser,
27 Nev. 421, 76 P. 747, 65 L.R.A. 672; Miliani v. Tognoni, 19 Nev. 133, 7 P. 279; Alcalda v.
Morales, 3 Nev. 132; Ruhling v. Hackett, 1 Nev. 360.
[Headnote 3]
Second: While words of condition are not, in form, words of promise, yet in cases of penal
bonds they must be so construed. Otherwise the sole and unlimited promise of the surety is
payment of the penal sum. The conditions are therefore construed to be promises in the form
of an undertaking. See Corbin, Contractors' Surety Bonds, 38 Yale L.J. 1, 13.
[Headnote 4]
The surety, then, has by the terms of its bond expressly undertaken the obligations of the
general contractor in all respects. If the contractor fails to perform, the surety has promised
performance. It has thus promised that it will pay the subcontractors. The subcontractor is a
third-party beneficiary of the surety's promise. Corbin, supra, 38 Yale L.J. 11, states A surety
bond that is conditioned on full performance of his contract by the principal, will operate in
favor of such third parties as the principal, by his contract with the promisee, undertakes to
pay; the bond need be no more specific. This proposition is supported by a substantial body
of authority. Cooke v. Luscombe, 132 Kan. 147, 294 P. 849; Barringer v. Fidelity & Deposit
Co. of Maryland, 161 So.C. 4, 159 S.E. 373; Indemnity Ins. Co. of North America v.
Stamberger Co., 37 Ohio App. 236, 174 N.E. 629; Algonite Stone Manufacturing Company
v. Fidelity & Deposit Company, 100 Kan.
& Deposit Company, 100 Kan. 28, 163 P. 1076, L.R.A. 1917 D, 722; Orinoco Supply Co. v.
Shaw Bros. Lumber Co. et al., 160 N.C. 428, 76 S.E. 273, 42 L.R.A., N.S., 707.
The surety contends (and the trial court held) that the nature of the bond read as a whole is
that of an indemnity bond. It contends that the promises flowing from the words of condition
must be construed in this light; that both bond and contract were written for the protection of
the owner and that the benefit to creditors is purely incidental and must be held limited to
such protection as is necessary only to indemnify the owner.
The nature of the bond cannot be said to be clearly set forth. Rather, it would appear to fall
in a middle zone between two classes of bonds: those which expressly give creditors a direct
right of action against the surety and those which expressly limit the rights under the bond to
those of indemnification. We note in this bond that the condition of performance is not
limited (as is frequently the case) to performance of the construction work agreed to be
performed. On the contrary, the condition, without limitation, is the performance of the
contract. We note that the condition of performance is conjunctively rather than disjunctively
linked to the conditions of indemnification and reimbursement. The surety's construction of
the instrument requires us to change and to or. We note that in limiting rights under the
bond to the penal sum fixed, the bond implies that those acquiring such rights include not
only owner and lender but also laborer and materialman. In short, the bond, if it was intended
to be limited to an undertaking for indemnification, is poorly drawn.
[Headnote 5]
The responsibility for draftsmanship falls squarely upon the surety. If it had been intended
to limit the scope of the bond to indemnification it would have been an extremely simple
matter to make this intention plain and to eliminate inconsistent expressions. The current of
authority now is that the contract of a compensated surety is to be interpreted liberally in the
interest of the promisee and beneficiaries, rather than strictly in favor of the surety. Day v.
Walton, 199 Tenn. 10, 281 S.W.2d 6S5; Knuth v. Fidelity & Casualty Co. of N.Y., 275 Wis.
603, S3 N.W.2d 126; Colonial Oil Co. v. U. S. Guarantee Co., 56 F.Supp. 545, affirmed 5
Cir., 145 F.2d 496; U. S. Fidelity & Guarantee Co. v.
685; Knuth v. Fidelity & Casualty Co. of N.Y., 275 Wis. 603, 83 N.W.2d 126; Colonial Oil
Co. v. U. S. Guarantee Co., 56 F.Supp. 545, affirmed 5 Cir., 145 F.2d 496; U. S. Fidelity &
Guarantee Co. v. Stark, 102 Ind.App. 222, 200 N.E. 489; See 50 Am.Jur. 1112, Suretyship
sec. 318.
We conclude that since the limited nature of the instrument (for which the surety contends)
does not appear with clarity, it cannot be permitted by implication to supply unexpressed
limitations upon the obligation of the surety. The promise of performance of the contract
must be accepted at face value.
Reversed and remanded with instructions that the order of dismissal be set aside and for
further proceedings.
Badt, C. J., and Eather, J., concur.
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74 Nev. 11, 11 (1958) Shira v. Cosgriff Neon Co.
ALBERT SHIRA, Doing Business Under the Name and Style of MT. ROSE MOTEL,
Appellant, v. COSGRIFF NEON COMPANY, INC., and J. R. WARREN, Respondents.
No. 3931
January 21, 1958. 320 P.2d 426
Appeal from judgment of the Second Judicial District Court, Washoe County; A. J.
Maestretti, Judge, Department No. 2.
Action against motel purchaser for breach of contract relating to payments for rental and
maintenance of neon sign entered into between plaintiff and vendor of motel, the third party
defendant. The trial court entered judgment for plaintiff and in favor of vendor, and purchaser
appealed. The Supreme Court, Merrill, J., held that evidence was insufficient to sustain
finding that contract was assumed by purchaser, but evidence did sustain finding that there
was no fraud by vendor.
Judgment in favor of respondent Cosgriff Neon Company, Inc., reversed and matter
remanded for new trial. Judgment in favor of respondent Warren modified.
George Lohse & Leonard T. Howard, of Reno, for Appellant.
John S. Halley, of Reno, for Respondent Cosgriff Neon Company, Inc.
Bible & McDonald and Robert H. Moore, of Reno, for Respondent J. R. Warren.
1. Bailment.
In action against motel purchaser for breach of contract relating to payment for rental and maintenance of
neon sign previously entered into between plaintiff and vendor of motel, evidence was insufficient to
support finding that purchaser had knowledge of agreement between plaintiff and vendor at time of
purchasing motel and had assumed its terms.
2. Appeal and Error.
Where action was brought to recover damages for breach of express contract and evidence was
insufficient to support finding that defendant had assumed such express contract, but use to which
defendant had put property might give rise to rights other than those dependent upon express contract, but
no appropriate findings had been made with respect to such facts, case would be remanded for new trial.
3. Fraud.
In third party action by purchaser of motel against vendor thereof, evidence supported finding that there
was no misrepresentation or concealment by vendor with respect to payments due under contracts for rental
and maintenance of neon signs.
4. Costs.
Where recovery sought in third-party complaint was in excess of $1,000, allowance of attorney's fees was
not authorized. NRS 18.010, subd. 2(a, b).
5. Costs.
Section of statute giving court discretion to make allowance of attorney's fees to prevailing party, in cases
in which defendant does not seek recovery in excess of $1,000, has reference to cases in which affirmative
relief is sought by defendant. NRS 18.010, subd. 2(b).
OPINION
This is an action for damages for breach of contract. Judgment for the plaintiff below
(respondent Cosgriff) was rendered by the trial court sitting without a jury. Upon this appeal
defendant Shira as appellant contends that there is no evidence from which the trial court
could have concluded that he was bound by contract.
that there is no evidence from which the trial court could have concluded that he was bound
by contract.
The contract involved is in writing, designated as an electrical advertising agreement. It
relates to rental and maintenance of a neon sign placed upon the premises of the Mt. Rose
Motel in Sparks, Nevada. It is dated November 5, 1951, and its term is for 60 months at $30 a
month. It provides, in the event of breach, for acceleration of payment of the full amount due
for the full term. The contract was signed by respondent Cosgriff as owner of the sign and by
William R. Warren on behalf of the Mt. Rose Motel as user. William Warren is the son of
respondent Warren, who was owner of the motel on November 5, 1951.
The trial court found, That on December 1, 1951 the defendant, Albert Shira, purchased
said Mt. Rose Motel and the business conducted therein from third party defendant, J. R.
Warren, with full knowledge of said electrical advertising agreement and all the terms and
conditions thereof and thereupon assumed said agreement, and on December 13, 1951 the
defendant, Albert Shira, paid to plaintiff the sum of THIRTY ($30.00) DOLLARS,
representing the payment due for the month of December, 1951 pursuant to said electrical
advertising agreement; that no further payments have been made by defendant Albert Shira or
any other person, and there is due and owing to plaintiff by defendant Albert Shira the sum of
ONE THOUSAND SIX HUNDRED EIGHTY ($1,680.00) DOLLARS.
That on January 5, 1952, pursuant to the provisions of said electrical advertising
agreement, plaintiff notified defendant Albert Shira that the entire amount was then due and
payable, to-wit: ONE THOUSAND SIX HUNDRED EIGHTY ($1,680.00) DOLLARS, by
reason of his failure to perform the provisions and conditions of said agreement. Judgment
against Shira was rendered accordingly.
[Headnote 1]
An examination of the record discloses that there is no evidence to support the court's
finding that appellant Shira had knowledge of the agreement between Cosgriff and Warren
and had assumed its terms.
Shira had knowledge of the agreement between Cosgriff and Warren and had assumed its
terms. Both Warren and Shira testified that at the time of purchase Shira had no knowledge of
any written contract. Warren advised Shira that the sign was the property of Cosgriff and that
$30 a month was payable for rental and maintenance. This was the extent of Shira's
understanding at the time of purchase. Never did Shira subsequently undertake any greater
obligation. Two weeks after sale he discovered the written contract. He immediately called
Cosgriff and in the course of two conversations repudiated the contract. An offer and
counter-offer for outright sale of the sign were made, but neither was accepted by the other
party. Shira notified Cosgriff to remove the sign. This Cosgriff failed to do. For 23 months
Shira used the sign. When maintenance or repair was required he provided it himself.
[Headnote 2]
We conclude that the finding that the contract was assumed by Shira is without factual
support and that judgment based upon breach of express contract must fall. The use to which
Shira put the sign may have given rise to rights in Cosgriff other than those dependent upon
express contract. Upon this point no determination has been made by the trial court and the
record is without appropriate findings of fact. In order that such determinations may be made
a new trial is necessary.
Upon Shira's appeal from judgment in favor of Cosgriff, judgment is reversed with costs to
the appellant and the matter remanded for new trial.
[Headnote 3]
Shira has also appealed from the trial court's judgment in favor of Warren upon a third
party complaint against Warren filed by Shira. The complaint was based upon allegations of
misrepresentation and concealment by Warren which the trial court found not to be true.
There is support for the trial court's determinations in this respect and to this extent the
judgment must be affirmed.
Judgment against Shira in favor of Warren included an award of costs plus attorney fees in
the sum of $250. Upon this appeal Shira contends that the award of attorney fees was
unauthorized.
[Headnote 4]
NRS 18.010 with reference to costs provides in part (subsection 2), In cases in which: (a)
The plaintiff does not seek recovery in excess of $1,000; or (b) The defendant does not seek a
recovery in excess of $1,000; the court may, in its discretion, make an allowance of attorney
fees to the prevailing party.
The recovery sought by Shira against Warren in his third party complaint was in excess of
$1,000. He sought (1) $1,000 damages suffered by himself; (2) that Warren be held
accountable to Shira for such judgment as might be rendered against Shira in favor of
Cosgriff. The recovery sought being in excess of $1,000, allowance of attorney fees was not
authorized.
[Headnote 5]
Warren contends that since he himself did not seek any recovery he is entitled to attorney
fees under paragraph (b) as quoted. That portion of the subsection, however, has reference to
cases in which affirmative relief is sought by the defendant.
Upon Shira's appeal from judgment in favor of Warren, IT IS ORDERED that such
judgment be modified to strike the allowance of attorney fees. As so modified, judgment is
affirmed with no costs allowed.
____________
74 Nev. 16, 16 (1958) Greenspun v. Gandolfo
H. M. GREENSPUN and W. R. McNINCH, Appellants, v. HONORABLE DON L.
GANDOLFO as Justice of the Peace, Austin Township, County of Lander, State of Nevada,
Respondent.
No. 4033
January 23, 1958. 320 P.2d 628
Appeal from judgment of Eighth Judicial District Court, Clark County; Ryland G. Taylor,
Judge, Department No. 3.
Certiorari proceeding to review action of a justice of the peace in issuing a warrant of
arrest charging present petitioners with the crime of blackmail. The lower court granted
motion to quash and denied the petition, and the petitioners appealed. The Supreme Court,
Badt, C. J., held that warrant of arrest reciting that complaint had been filed accusing present
petitioners of committing the crime of blackmail substantially complied with all
requirements of statute, even if the word blackmail at head of section defining offense was
not contained in original enrolled bill passed by legislature and was simply statute compiler's
catchword, as against petitioners' contention that warrant designated no crime defined by
legislature.
Affirmed.
Morton Galane, of Las Vegas, for Appellants.
George G. Holden, District Attorney, Lander County, for Respondent.
1. Criminal Law.
Warrant of arrest reciting that a complaint had been filed accusing present petitioners of committing the
crime of blackmail substantially complied with all requirements of statute, even if the word blackmail at
head of section defining offense was not contained in original enrolled bill passed by Legislature and was
simply statute compiler's catchword, as against petitioners' contention that warrant designated no crime
defined by Legislature. NCL 1929, 10423, 10730, 10731, 10733, 10734.
2. Threats.
Though the word blackmail may not be a word of art, it is a word of common parlance and popular
usage, and is often defined as synonymous with extortion. NCL 1929, 10423.
3. Criminal Law.
A warrant of arrest must charge commission of an offense in words adequate to disclose what crime is
meant.
4. Criminal Law.
The primary purpose of the recitals in warrant of arrest is to authorize arresting officer to make the arrest,
to the end that the accused may be brought before the court.
OPINION
By the Court, Badt, C. J.:
Appellants sought a writ of certiorari from the district court of the Eighth Judicial District,
Clark County, to review the action of respondent in issuing in Austin Township, County of
Lander, a warrant of arrest charging appellants with the crime of blackmail, alleging that
the warrant of arrest was legally insufficient and that the petitioners had been illegally
arrested in Clark County. After a hearing on the petition for the writ and on the motion of
respondent to quash the writ and upon respondent's demurrer to the petition, the district court
granted the motion to quash and denied the petition.
Appellants contend that the state legislature has never designated blackmail as a
criminal offense and that, therefore, the warrant of arrest issued by the justice of the peace
designating the offense charged as blackmail deprives them of liberty, without due process
of law, in violation of the Fourteenth Amendment to the United States Constitution. We have
concluded that the warrant of arrest, as issued, complied substantially with the statutory
requirements, that the arrest made thereunder did not deprive appellants of liberty without due
process and that the judgment of the district court must, accordingly, be affirmed.
The section of An Act concerning crime and punishments * * *, approved March 17,
1911, appears in NCL 1929
1
in the following form:
10423. Blackmail. 474. Every person who, with intent thereby to extort or gain any
money or other property or to compel or induce another to make, subscribe, execute, alter or
destroy any valuable security or instrument or writing affecting or intended to affect any
cause of action or defense, or any property, or to influence the action of any public officer, or
to do or abet or procure any illegal or wrongful act, shall threaten directly or indirectly1. To
accuse any person of a crime; or, 2. To do an injury to any person or to any property; or, 3. To
publish or connive at publishing any libel; or, 4. To expose or impute to any person any
deformity or disgrace; or, 5. To expose any secret,
Shall be punished by imprisonment in the state prison for not more than five years or by
imprisonment in the county jail for not more than one year, or by a fine of not more than one
thousand dollars, or by both fine and imprisonment. The section appears in precisely the
same language as sec. 6739, Revised Laws of Nevada, 1912.
The complaint filed with the respondent justice of the peace is not attacked by appellants
and does not appear in the record on appeal. The warrant of arrest issued by respondent was
addressed to any sheriff, constable, marshal, policeman or other peace officer of the state, was
properly dated and signed with the name and place of office of respondent, recited the filing
of a complaint under oath charging appellants with the crime of blackmail and
commanding the officer to arrest them. Bail was fixed in the sum of $10,000 each. The
warrant was upon a printed form in general use.
Section 10730, NCL 1929, requires the magistrate to issue the warrant if he is satisfied
that the offense complained of has been committed and that there is reasonable ground
to believe that the defendant has committed it.
____________________

1
The complaint was filed and the warrant issued January 19, 1957. Nevada Revised Statutes became
effective January 25, 1957, Stats. 1957, Chap. 2, p. 1. The statutes under consideration are, accordingly, those
appearing in NCL 1929. The section now appears as NRS 205.320.
issue the warrant if he is satisfied that the offense complained of has been committed and that
there is reasonable ground to believe that the defendant has committed it. Section 10731,
NCL 1929, defines the warrant as an order in writing signed by the magistrate commanding
the arrest which may be substantially in the following form: County of ................. The State
of Nevada, to any sheriff, constable, marshal, policeman, or peace officer in this state: A
complaint, upon oath, has been this day laid before me by A. B., that the crime of (designate
it) has been committed, and accusing C. D. thereof; you are therefore commanded forthwith
to arrest the above-named C. D. and bring him before me at (name the place), or in case of
my absence or inability to act, before the nearest or most accessible magistrate in this
county.
Section 10733 reads as follows: 10733. Warrant to specify, What. 85. The warrant
must specify the name of the defendant; if it be unknown to the magistrate, the defendant may
be designated therein by any name. It must also state the date of its issuance, and the county,
city, or town where it was issued, and be signed by the magistrate with his name of office. It
is to be noted that the last-mentioned section is the section specifically designating what must
be specified in the warrantthe defendant's name, the date of issuance, the county, city or
town of issuance, the signature of the magistrate and the name of his office.
Section 10734, NCL 1929, adds that it must be directed to a peace officer. Section 10731,
NCL 1929, as heretofore noted, gives the form that may be substantially followed.
[Headnotes 1, 2]
We turn then to the contention of appellants that the warrant of arrest reciting that a
complaint had been filed accusing appellants of committing the crime of blackmail
designated no crime ever defined by the legislature; that the word blackmail appearing at
the head of the section was simply the compiler's catchword and was without significance.
was without significance. No purpose would be served by analyzing appellants' earnest,
lengthy and learned discussion as to the necessary recitals in a warrant of arrest in order to
satisfy constitutional requirements. We note again that the complaint is not attacked. We are
fully satisfied that the warrant of arrest substantially complied with all requirements of the
relevant sections of the code whether or not the word blackmail at the head of the section
quoted was or was not contained in the original enrolled bill passed by the legislature.
2
Though the word blackmail may not be a word of art, it is a word of common parlance and
popular usage, often defined as synonymous with extortion, and has appeared in our codes for
45 years. During all of that period it was indexed in the Revised Laws of 1912 and in the
Compiled Laws of 1929 with reference to the section in question. The former followed the
legislative session of 1911 and the statute therein passed, Stats. 1911, 100, providing for the
omission of publication of the Crimes and Punishments Act in the 1911 session laws but for
its inclusion in the Revised Laws of 1912, whose compilation was authorized in 1909 through
a code commission comprising the justices of the Supreme Court. Similar proceedings were
followed in the Compiled Laws of 1929.
[Headnotes 3, 4]
An interesting article on The Law of Arrest, by Professor Rollin M. Perkins, appears in
Vol. XXV, No. 2, Iowa Law Review, January 1940, in which the author recites The warrant
must charge the commission of an offense in words adequate to disclose what crime is meant
* * *, citing Spear v. State, 120 Ala. 351, 25 So. 46, 48. The case cited refers to numerous
examples in which the warrant was held to be sufficient and holds that although the words
used would concededly be insufficient to support an indictment, "yet the same strictness
* * * is not required in a warrant or writ of arrest", and that the offense {"of carrying a
concealed pistol") was sufficiently designated.
____________________

2
Much space is devoted by the briefs to the unsuccessful attempt to locate the original enrolled bill required
to be kept in the files of the secretary of state, to the discovery in the secretary's files of what purported to be the
original engrossed bill (which did contain the catchword blackmail), and to the journal of the statutory
proceedings of 1911 reciting the comparison of the engrossed bill with the enrolled bill, etc.
that although the words used would concededly be insufficient to support an indictment, yet
the same strictness * * * is not required in a warrant or writ of arrest, and that the offense
(of carrying a concealed pistol) was sufficiently designated. The primary purpose of the
recitals in the warrant is to authorize the arresting officer to make the arrest, to the end that
the accused may be brought before the court. 22 C.J.S. 467-8, Criminal Law, sec. 316. Even
in testing the sufficiency of the complaint, it was said in State v. McKiernan, 17 Nev. 224, 30
P. 831, 832, The technical exactness which existed under the rules of the common law has
been superseded by statutory provisions, and it is now sufficient if the offense is clearly and
distinctly set forth in ordinary and concise language * * * in such a manner as to enable a
person of common understanding to know what is intended.' This language was approved in
Ex Parte Esden, 55 Nev. 169, 28 P.2d 132. In that case the complaint was attacked for the
reason that it lacked an essential element of the crime of blackmail, namely, an allegation
of the intent with which the letter in question was written. The court, after quoting the
language used in the McKiernan case, said, Viewed in this way the information is not
deficient in stating the public offense of blackmail. Although the specific point here
raisedthe lack of a statutory crime of blackmailcannot be said to have been the precise
point determined in the Esden case, we cannot escape the force of the language used. We feel
justified in drawing from it support for our conclusion that a person of common
understanding would know what was intended by the charge of the crime of blackmail.
Section 856 of the New York Penal Code, 39 McKinney's Cons. Laws of N.Y. 465, c. 40,
is to all intents and purposes, so far as concerns the point discussed, the same as sec. 10423
NCL 1929, above quoted in full. It too contains the catchword blackmail, but the section
does not contain the word, much less define it. Yet it was said in Bianchi v. Leon, 138
App.Div. 215, 122 N.Y.Supp. 1004, 1012, that the obtaining of a settlement under a threat
of criminal prosecution is blackmail, as defined by S56, S57 and S5S * * *."
threat of criminal prosecution is blackmail, as defined by 856, 857 and 858 * * *.
Sections 857 and 858 are likewise silent. See also Guenther v. Ridgway Co., 70 App.Div.
725, 156 N.Y.Supp. 534.
In support of the dismissal of the proceedings respondent contends (1) that his issuance of
the warrant of arrest was a ministerial act not reviewable by certiorari, NCL 1929, sec. 9231;
(2) that appellants had other plain, speedy and adequate remedies; (3) that the venue of the
certiorari proceedings lay not in Clark County, where appellants were arrested, but in Lander
County, as the jurisdiction inquired into was that of the respondent justice of the peace of
Austin Township in Lander County. (4) It is further suggested that under NCL 1929, sec.
10733, supra, the Nevada statute does not require that any crime or offense be specified in the
warrant. Although these contentions raise interesting and possibly difficult questions, we do
not determine or consider any of them.
Affirmed.
Eather and Merrill, JJ., concur.
____________
74 Nev. 22, 22 (1958) Schulze v. Roop
ROBERT O. SCHULZE, Appellant, v. CLIFFORD
ROOP, Respondent.
No. 4079
January 31, 1958. 320 P.2d 1104
Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
Department No. 2.
Respondent moved to dismiss on ground that appeal was not taken within time prescribed.
The Supreme Court held that where it was conceded that notice of appeal was not filed until
the 32d day, appeal was not taken within time provided by rule prescribing that appeal must
be taken within 30 days from service of written notice of entry of judgment, and under rule
only Sundays could be counted as nonjudicial days.
written notice of entry of judgment, and under rule only Sundays could be counted as
nonjudicial days.
On motion to dismiss appeal. Appeal dismissed.
Franklin & Wadsworth, of Las Vegas, for Appellant.
Morse, Graves & Compton, and Charles H. Miles, Jr., of Las Vegas, for Respondent.
Time.
Only Sundays are nonjudicial days and Saturdays are included for purpose of determining time within
which an appeal must be taken. Rules of Civil Procedure, rules 6(a), 73(a); NRS 1.130, 245.040.
OPINION
Per Curiam:
Upon this appeal from judgment of the district court for Clark County, the matter is before
us on motion of the respondent to dismiss the appeal upon the ground that it was not taken
within the time prescribed by Rule 73(a) NRCP: 30 days from service of written notice of
the entry of the judgment appealed from. It is conceded that notice of appeal was not filed
until the 32d day. Appellant contends, however, that the 30th and 3lst days, Saturday and
Sunday, October 19 and 20, 1957, were nonjudicial days and that the period for filing thus
runs until the end of the next day which is neither a Sunday nor a nonjudicial day. Rule 6(a)
NRCP.
NRS 1.130 specifies what are nonjudicial days. Saturdays are not included. Appellant
contends that since, pursuant to legislative authority to fix the office hours of county officers
(NRS 245.040), the county commissioners of Clark County have provided that the office of
county clerk need not remain open on Saturdays, Saturdays have become nonjudicial days in
Clark County. This proposition we do not reach, however. The record before us on this
motion establishes that on Saturday, October 19, 1957, the office of the county clerk of
Clark County was open for business.
Saturday, October 19, 1957, the office of the county clerk of Clark County was open for
business.
Appeal dismissed.
____________
74 Nev. 24, 24 (1958) Las Vegas-Tonopah-Reno Stage Line v. Burleson
LAS VEGAS-TONOPAH-RENO STAGE LINE, INC., Appellant, v. WILLIAM O.
BURLESON, Respondent.
No. 4024
February 5, 1958. 320 P.2d 1104
Appeal from the Eighth Judicial District Court, Clark County; Gordon W. Rice, Presiding
Passenger's action against common carrier for value of luggage lost through negligence of
carrier in course of intrastate trip. The trial court entered judgment for passenger and carrier
appealed. The Supreme Court, Eather, J., held that carrier could not, by provisions in its
schedule of rates and charges, limit its liability for loss of luggage through negligence.
Affirmed with costs.
McNamee & McNamee, of Las Vegas, for Appellant.
Toy R. Gregory, of Las Vegas, for Respondent.
1. Carriers.
Common carrier could not, by provisions in its schedule of rates and charges, limit its liability for loss of
passenger's baggage in intrastate trip through its negligence. NRS 704.070, 704.080.
2. Carriers.
Re-enactment of statutes requiring the filing with Public Service Commission of schedules by public
utilities and posting of such schedules in the utilities' offices did not accomplish any change in law
providing that although a common carrier may limit its liability as insurer to a fixed amount in absence of
additional compensation, such limitation does not apply for losses due to negligence of carrier. NRS
704.070, 704.080.
3. Carriers.
Limitation of liability for loss of intrastate passenger's luggage through carrier's negligence which is
founded upon unilateral actions of carrier short of contract cannot stand.
OPINION
Appellant, a common carrier, has taken this appeal from judgment rendered against it for
the value of a passenger's luggage lost through negligence of the carrier in the course of an
intrastate trip from Reno to Las Vegas. The sole question before us is whether, under the laws
of this state, the carrier can, by so providing in its schedule of rates and charges, limit its
liability for loss through its negligence.
NRS 704.070 provides for the filing with the public service commission of Nevada of
schedules by public utilities showing all rates, tolls and charges which it has established * *
* for any service performed * * *. NRS 704.080 provides for posting in the utility's office
and stations of so much of the schedule as the commission shall deem necessary for the use
of the public.
[Headnote 1]
At the time of the transactions here involved appellant had filed with the commission a
schedule which provided that its baggage liability was limited to $25 unless the owner
declared a higher value and paid an increased rate. A sign posted in its Reno bus station
advised the public of this limitation upon its liability. Respondent, traveling from Reno to Las
Vegas on appellant's line, checked his baggage without any declaration of value in excess of
$25. The baggage was lost through the negligence of the carrier. The court below allowed
proof of its actual value and granted judgment for $300. Appellant contends that by its having
complied with the cited statutory provisions it has effectively limited its liability for negligent
loss to $25.
Upon this point we find two cases of this court controlling: Zetler v. Tonopah and G. R. R.
Co., 35 Nev. 381, 129 P. 299, L.R.A. 1916A, 1270, and Southern Pacific Co. v. Haug, 43
Nev. 102, 182 P. 92. In these cases it is clearly held that although a common carrier may,
pursuant to law, limit its liability as insurer to a fixed amount in absence of additional
compensation, such limitation shall not apply to cases where the loss is due to negligence
of the carrier, even though there be a contract with the owner providing for such
limitation.
amount in absence of additional compensation, such limitation shall not apply to cases where
the loss is due to negligence of the carrier, even though there be a contract with the owner
providing for such limitation.
Appellant contends that for two reasons these decisions should not be held controlling in
this case.
[Headnote 2]
First: The source of the cited NRS sections is the Public Service Commission Act of 1919
which was not the law under which the Zetler and Haug cases were decided. Appellant
contends that the 1919 act has superseded the earlier law. The controlling cases were decided
under the provisions of the Railroad Act of 1907, 1907 Stats. of Nevada, p. 73, chap. 44.
Section 4 of that act to all intents and purposes is identical with the pertinent provisions of
NRS. The reenactment of these provisions in 1919 did not in any respect accomplish any
change in the law as announced in the Zetler and Haug cases.
[Headnote 3]
Second: Appellant contends that these were cases in which the limitation was sought to be
accomplished by contract and were not concerned with a limitation accomplished by the
taking of legally prescribed steps for the fixing of rates and charges. There is no merit in this
contention. If the provisions of sec. 4 of the Railroad Act of 1907, properly construed, could
be said to have permitted such limitation of liability, a contract to such effect could hardly
have been held contrary to public policy. If a contractual limitation of liability is contrary to
public policy, a fortiori a limitation cannot stand which is founded upon unilateral actions of
the carrier short of contract.
____________
74 Nev. 27, 27 (1958) Papa v. Vacchina
AURELIO PAPA and DAVID DOTTA, Appellants, v. THELMA VACCHINA and THYRA
SAVAGE, Respondents.
No. 4028
February 6, 1958. 321 P.2d 245.
Appeal from judgment of the Fourth Judicial District Court, Elko County, Taylor H.
Wines, Judge.
Suit for foreclosure of lien upon real property wherein mortgagees claimed adverse interest
in property. The trial court entered judgment to effect that plaintiffs had priority, and
mortgagees appealed. The Supreme Court, Merrill, J., held that recording of instrument
providing that if husband survived wife he would pay sums to wife's daughters as soon as he
was able to reduce joint tenancy property of husband and wife to cash, in miscellaneous
records rather than in mortgage records was proper.
Affirmed.
(Rehearing denied March 5, 1958.)
Orville R. Wilson and Milton J. Reinhart, of Elko, for Appellants.
Springmeyer and Thompson, of Reno, for Respondents.
1. Husband and Wife;
Wills.
Under agreement providing that if husband survived wife he would pay sum to wife's daughters as soon
as he was able to reduce joint tenancy property of husband and wife to cash, husband's surviving wife was
merely condition precedent to his duty to discharge obligation, husband possessed no right to unilateral
revocation of agreement, vesting of enforceable right was not postponed until death of husband, agreement
was not testamentary in character and was not void for absence of formal requisites of will.
2. Liens.
Determination of question whether agreement by husband to pay sum to wife's daughters from sale of
joint tenancy property of husband and wife if he survived wife placed burden upon estate of survivor
resulting in converting joint tenancy into tenancy in common had no effect upon priority of claim by
daughters, who after death of wife sought to foreclose lien, and claim by mortgagee
where all parties claimed through husband.
claim by daughters, who after death of wife sought to foreclose lien, and claim by mortgagee where all
parties claimed through husband.
3. Records.
Where character of instrument is not readily apparent, rights of parties to it should not be made to depend
upon ability of recorder to determine its true character.
4. Records.
Recording of instrument providing that if husband survived wife he would pay sums to wife's daughters
as soon as he was able to reduce joint tenancy property of husband and wife to cash in miscellaneous
records rather than in mortgage records was proper. NRS 247.120, subd. 1 (a).
Where, in suit for foreclosure of lien, mortgagees claimed interest in property adverse to lienholders and
alleged that sums advanced by them for taxes, fire insurance premiums and plumbing services were
advanced under terms of mortgage and advances were so treated by trial court, mortgagees were not
entitled on appeal to contend, for the first time, that they were entitled to priority upon sums advanced on
ground that advances were for purpose of preservation of estate.
Appellants would not be heard for first time on appeal to contend that trial court erred in adopting theory
of recovery which they themselves had urged upon trial court.
OPINION
This is a suit for foreclosure of a lien upon real property located in the City of Elko,
Nevada, brought by respondents as plaintiffs. Appellants as mortgagees claim an interest in
the property adverse to respondents. The issue is as to the priority of the respective interests.
The trial court held respondents to have priority. From judgment to this effect the appeal is
taken.
Respondents' lien is founded upon a written agreement between W. M. Weathers and Eva
Weathers, his wife, dated October 22, 1947. The agreement recites the parties' ownership in
joint tenancy of the real property here involved and provides:
The husband promises and agrees that in the event the wife should predecease him and he
become the survivor of the said joint tenancy in and to the above described property, he will
pay to Thelma Vacchina and Thyra Savage, daughters of the said wife, each, the sum of
$3,500 as soon after the death of the said wife as he is able to reduce the said property to
cash.
Thyra Savage, daughters of the said wife, each, the sum of $3,500 as soon after the death of
the said wife as he is able to reduce the said property to cash.
It is particularly agreed to and understood that in the event the husband predeceases the
said wife and the said wife becomes the survivor of the said joint tenancy, then this
agreement shall terminate and be of no further force and effect.
The husband agrees that in the event he becomes the survivor of the said joint tenancy,
that the payments herein provided for to be paid by him shall be a lien against the said
premises, and binding upon his heirs, executors, administrators and assigns.
Mrs. Weathers died October 11, 1952 and later that month the agreement was recorded in
the office of the county recorder of Elko County under Miscellaneous Records. In February,
1953 the district court of Elko County by order terminated the joint tenancy and confirmed
title in W. M. Weathers as survivor. Subsequently Weathers executed in favor of appellants
the mortgages upon which they now rely.
The trial court held respondents to have a valid lien against the property in question with a
priority of October, 1952. Upon five separate grounds appellants assert error and contend that
respondents' lien is ineffectual as against them.
[Headnote 1]
First: Appellants contend that the agreement upon which respondents' lien is founded
constitutes a testamentary disposition of property and, since it lacks the formal requisites of a
will, is void. Two elements of a testamentary disposition are lacking, however. The
agreement is not ambulatory. It was a simple contract supported by consideration on both
sides. That the husband should survive his wife was merely a condition precedent to his duty
to discharge his obligation. He possessed no right to unilateral revocation of the agreement.
Furthermore the vesting of enforceable rights was not postponed until the death of the
obligor, Mr. Weathers. The event which was the condition precedent to his obligation to
perform was not his death, but that of his wife. "If the instrument creates a right in the
promisee before the death of the testator, it is a contract."
wife. If the instrument creates a right in the promisee before the death of the testator, it is a
contract. In Re Howe's Estate, 31 Cal.2d 395, 189 P.2d 5, 7, 1 A.L.R.2d 1171. The
conditional obligation became irrevocably binding upon Mr. Weathers during his lifetime and
was not limited in its operation to property which he might leave on his death. The
agreement, then, was not testamentary in character.
[Headnote 2]
Second: Appellant contends that the agreement placed a burden upon the estate of the
survivor and that this resulted in so changing the nature of his estate that the joint tenancy
was destroyed and converted into a tenancy in common. This contention is vigorously
opposed by respondents. We make no determination upon the issue, however. Such a
determination could have no effect upon the rights of the parties to this appeal as between
themselves. Whether Weathers' estate at the time of his wife's death was that of a surviving
joint tenant or was the undivided one half interest of a tenant in common, the question of
priorities remains, since all interested parties claim through Weathers, whatever his estate
may have been. Appellants, then, are not aggrieved by any asserted error in this respect.
Third: Appellants contend that the recording and indexing of the agreement under
Miscellaneous Records was insufficient to give them notice of the claim of lien. To
constitute proper recording, they claim, it should have been recorded and indexed in the book
and index provided to meet the requirements of NRS 247.120, 1 (a): Deeds, grants, transfers
and mortgages of real estate.
[Headnote 3]
The instrument is not entitled mortgage and is not in the usual form of mortgage
instruments. It bears no entitlement and describes itself simply as an agreement. It cannot
be said that its nature in the creation of a lien against the premises is so clearly that of a
mortgage as to require its recordation in that manner.
Courts should not be overtechnical in these matters where the instrument is complex or
otherwise difficult to classify. Where the character of the instrument is not readily apparent
the rights of the parties to it should not be made to depend upon the ability of the recorder to
determine its true character. Stanislaus Water Co. v. Bachman, 152 Cal. 716, 93 P. 858, 15
L.R.A. (N.S.) 359.
Stephen v. Patterson, 21 Ariz. 308, 188 P. 131, 132, dealt with a written agreement to pay
$1,250 out of the first $5,000 received from sale of certain property. It provided, a special
lien is hereby created on said property to secure payment of this obligation. It was recorded
in the book entitled, Miscellaneous. The court held such recording to be proper, stating, It
is not in the usual or ordinary form of a mortgage. Only such instruments as are mortgages by
their express terms are required to be recorded in separate books, denominated Mortgages of
Real Property.'
[Headnote 4]
We conclude that the recording of the agreement in Miscellaneous Records was proper.
Fourth: Respondents contend that in any event they are entitled to priority upon certain
sums advanced by them for taxes, fire insurance premiums and plumbing service which
advances were for the purpose of preservation of the estate.
[Headnotes 5, 6]
In the action below, however, recovery of these sums was not sought upon this basis. It
was not contended that they were entitled to an independent priority upon the theory of
preservation of the estate. It was alleged by appellants that these sums were advanced by them
under the terms of their mortgages to the effect that such mortgage should be security for all
moneys becoming due from the mortgagor to them from any cause. The advances were so
treated by the trial court. They were given the same priority as the original mortgage debt, in
complete accordance with the appellants' contention. Appellants will not now be heard for the
first time to contend that the trial court erred in adopting the theory of recovery which
they themselves had urged upon the court.
contend that the trial court erred in adopting the theory of recovery which they themselves
had urged upon the court.
Finally appellants contend that respondents should be barred by laches from asserting their
lien rights. We fail to see how prompter action would have affected appellants' rights unless
suit had been brought prior to the date of their mortgages and their attention had in this
manner been directed to respondents' claims. However there certainly was no occasion for
respondents to resort to foreclosure upon their security until it had become apparent that
Weathers did not propose to comply with his obligation as soon as he is able to reduce said
property to cash. There is nothing in the record to indicate that earlier action should have
been taken. Accordingly we feel that there is no merit in this contention.
Affirmed.
____________
74 Nev. 32, 32 (1958) Papagni v. Purdue
CARLO PAPAGNI and ANNA PAPAGNI, Husband and Wife, Appellants, v. ALBERT H.
PURDUE, Respondent.
No. 4014
February 11, 1958. 321 P.2d 252
Department No. 2.
Action wherein the trial court rendered summary judgment for defendant, and the plaintiff
appealed. The Supreme Court, Eather, J., held that tenant's complaint against landlord for
injuries sustained in fall down defective steps was not subject to claimed infirmity of
disclosing as a matter of law that tenant had assumed risk or had been contributorily
negligent.
Wanderer and Perry, of Las Vegas, for Appellants.
McNamee and McNamee, of Las Vegas, for Respondent.
1. Landlord and Tenant.
Tenant could not be charged with contributory negligence merely because he knew of step defect which
resulted in his injury and nevertheless used stairs, and it would have to additionally appear that risk he took
was not a reasonable one.
Tenant could not be charged with assuming risk merely because he knew of step defect which caused his
injury and nevertheless used stairs, and before he could be charged with assumption of risk it would have to
additionally appear that he had appreciated nature of risk involved.
Tenant's complaint against landlord, for injuries sustained in fall down defective steps, was not subject to
claimed infirmity of disclosing as a matter of law that tenant had assumed risk or had been contributorily
negligent.
OPINION
This is an appeal taken by the plaintiff below from summary judgment in favor of the
defendant in an action for injuries resulting from negligence. The injuries resulted from a fall
upon a stairway which, it was alleged, defendant had negligently failed to repair.
In support of the judgment defendant contends that the complaint of the plaintiff shows
upon its face that plaintiff had either assumed the risk which the defective stairway created or
had been guilty of contributory negligence. Defendant concedes that if such is not the case
summary judgment was not proper. The sole question upon this appeal, then, is whether it
may be said that assumption of risk or contributory negligence conclusively appears as a
matter of law from the allegations of the complaint; or whether it may be said that questions
concerning such defenses remain for the court or jury.
The complaint alleges that plaintiff leased a dwelling house from defendant for one month.
It then proceeds: That the usual place of egress from said house to the yard thereof was
down certain steps on the side of the house leading to the ground.
yard thereof was down certain steps on the side of the house leading to the ground. That at the
time of said hiring and leasing from defendant, defendant agreed to repair said steps on the
side of the house, which steps were then broken and uneven and which were dangerous to
plaintiff's use. That defendant, although often requested to repair the same and agreeing so to
do, failed and neglected to make the necessary repairs and carelessly and negligently allowed
the said stairs to remain in a dangerous condition. It is then alleged that plaintiff, after the
lapse of three months, while using said stairs, tripped and fell as a result of defendant
carelessly and negligently allowing the said stairs to remain in said dangerous condition.
[Headnotes 1, 2]
It is clear that plaintiff was aware of the defect which defendant had agreed to repair and of
the fact that danger (in some degree) resulted from failure to repair and that she had used the
stairs with such knowledge. More is necessary, however, if contributory negligence or
assumption of risk is to follow.
If reliance is upon contributory negligence it must appear that the risk which plaintiff
knowingly took was not, under the circumstances, a reasonable one to take; that the apparent
danger was such that a reasonably prudent person would not have undertaken the risk of using
the stairs. Am.Jur. V. 38, Negligence, secs. 182, 184, pp. 859-862.
If reliance is upon assumption of risk, it must appear not only that the condition was
recognized as dangerous, but also that plaintiff appreciated the nature of the risk involved.
The California Supreme Court considered this problem in the case of Hawk v. City of
Newport Beach, 46 Cal.2d 213, 293 P.2d 48, 51. The court there said that the plaintiff did not
assume the risk of injury when he dived from a rock into water which he knew was shallow,
because although he knew that such an act was dangerous, it cannot be said as a matter of
law that he appreciated the magnitude of that danger. * * * The elements of [assumption of
risk] are a person's voluntary acceptance of a risk and an appreciation of the magnitude
of that risk."
elements of [assumption of risk] are a person's voluntary acceptance of a risk and an
appreciation of the magnitude of that risk. Other courts have expressed the same proposition
couched in slightly different terms. There is involved in the question of assumption of risk
not only the question of knowledge, but a reasonable opportunity to ascertain the nature of the
risk, and also an appreciation of the risk. York v. Chicago M. & St. P. Ry. Co., 184 Wis.
110, 198 N.W. 377, 381. Similarly, The plaintiff is not required to look for danger, but is
held to assume the risks only when the danger is so apparent that one who owes no duty to
inspect was bound to discover it; but that is ordinarily a question of fact for the jury. As to
appreciation of risk, as distinguished from knowledge of danger, the question is: Did the
servant understand the risk, or, by the exercise of ordinary observation, ought he to have
understood the risk, to which he was exposed by the dangerous situation? Rase v.
Minneapolis St. P. & S. Ste. M. R. Co., 107 Minn. 260, 120 N.W. 360, 367, 21 L.R.A. (N.S.)
138, 149. Further, Assumption of risk is a defense, but it rests upon the intelligent
acquiescence and knowledge of the danger and appreciation of the risk naturally and
ordinarily incident to the employment, or arising from a particular situation in which the work
is done. McClain v. Charleston & W. C. Ry. Co., 191 S.C. 332, 4 S.E.2d 280. In 35 Cal.Jur.
814, Negligence, sec. 267, the distinction is made between assumption of risk and
contributory negligence. It is stated there that assumption of risk is founded on the theory of
consent, with two main requirements: (1) Voluntary exposure to danger, and (2) Actual
knowledge of the risk assumed. A risk can be said to have been voluntarily assumed by a
person only if it was known to him and he fully appreciated the danger. Ibid. at 822.
[Headnote 3]
These necessary factual elements of the defenses in question cannot be said to have been
established by the allegations of the complaint. It cannot be said that contributory negligence
or assumption of risk conclusively appear as a matter of law.
appear as a matter of law. Issues thus remain for the court or jury. Summary judgment, then,
was not proper.
Reversed and remanded with instructions that summary judgment be set aside, and for
____________
74 Nev. 36, 36 (1958) Lockitch v. Boyer
REUBEN J. LOCKITCH, M.D., Appellant, v. HAROLD L. BOYER, M.D., RICHARD H.
LAUB, M.D., and CHESTER C. LOCKWOOD, M.D., Respondents.
No. 3970
February 11, 1958. 321 P.2d 254
Appeal from summary judgment of the Eighth Judicial District Court, Clark County; Frank
McNamee, Judge, Department No. 1.
Action by doctor against other doctors for libelous defamation of character arising out of
alleged participation in publication of his suspension by board of trustees as member of
medical staff of hospital. From summary judgment entered by the trial court in favor of the
defendants, the plaintiff appealed. The Supreme Court, Badt, C. J., held that affidavit in
opposition to defendants' motion for summary judgment was insufficient to raise a genuine
issue as to defendants' participation in the publication and motion for summary judgment was
properly granted.
Affirmed.
George E. Marshall, of Las Vegas, for Appellant.
Goldwater and Singleton, of Las Vegas, for Respondents Boyer and Lockwood.
Jones, Wiener and Jones, of Las Vegas, for Respondent Laub.
Judgment.
In action by doctor against other doctors for libelous defamation of character arising out of alleged
participation in publication of his suspension by board of trustees as member of medical staff of hospital,
affidavit in opposition to defendants' motion for summary judgment was insufficient to raise a genuine
issue as to defendants' participation and motion of summary judgment was properly granted. Rules of
Civil Procedure, rule 56.
OPINION
This is an appeal from a summary judgment entered in favor of respondents, defendants
below, and against appellant, plaintiff below. The summary judgment was proper and must be
affirmed.
Plaintiff's action was for damages for libelous defamation of character and, in the words of
appellant, grew out of an unauthorized suspension of plaintiff as a member of the medical
staff of Southern Nevada Memorial Hospital, the damage claimed [being] for participation in
the publication of what plaintiff claims to be libelous and defamatory, [although] the act of
suspension * * * was committed actually by the board of trustees of the hospital.
The publication appearing in the Las Vegas Review Journal of August 5, 1954, was as
follows: A special meeting of the board of hospital trustees was held last night at which
several members of the executive committee of the medical staff were present.
Following a review of the activities of Dr. Reuben Lockitch the board voted to suspend
Dr. Lockitch from staff membership. On the same date publication was made in the Las
Vegas Sun of only the second sentence of the quoted publication.
Plaintiff alleged in his second amended complaint that such statements were published at
the direction and connivance of all the defendants, were meant to be understood as charging
that plaintiff was incompetent as a surgeon and practitioner of medicine; that all of the
defendants directed such statements to be published, knew that they were published
maliciously, were unfounded and were intended to damage plaintiff in the practice of his
profession and to convey the information that he was an unfit person to be a member of
the staff of the hospital and were intended to degrade and defame him.
of the defendants directed such statements to be published, knew that they were published
maliciously, were unfounded and were intended to damage plaintiff in the practice of his
profession and to convey the information that he was an unfit person to be a member of the
staff of the hospital and were intended to degrade and defame him.
Although respondents question the libelous nature of the publication and assert that in any
event it was privileged, their main support of the summary judgment rests upon the proofs
made at the hearing of the motion for such judgment. They correctly conclude that these
proofs are to the effect that the defendants neither published nor caused to be published the
items above described. Such proofs may be briefly noted.
Plaintiff attached as an exhibit to his complaint the minutes of the board of trustees of its
special meeting of August 3, 1954, from which the following appears: Mr. Stewart: I make
a motion that Dr. Lockitch be suspended for an indefinite period of time from the medical
staff, due to the investigation made by the hospital board of trustees * * * and this be given to
the press on the approval of the district attorney.' The motion was seconded by Mr. Baker and
unanimously carried. Mr. Brayshaw was therefore authorized to consult with Roger Foley,
district attorney, or Mr. Dickerson if Mr. Foley was on vacation.
In support of the motion to dismiss were the affidavits of Dr. Boyer, Dr. Laub and Dr.
Lockwood to the effect that none of them published or caused to be published directly or
indirectly or in concert or cooperation with any other person the statements in question. The
affidavit of Norman M. Brayshaw, the administrator of the hospital, refers first to the
unanimously adopted resolution introduced by Mr. Stewart and seconded by Mr. Baker for
the suspension of Dr. Lockitch from the medical staff, and for the release to the press of the
action taken upon securing the approval of the district attorney. He then testifies that he
released the statement to the press after conferring with the district attorney's office, and
that any act of suspension was that of the board of trustees.
to the press after conferring with the district attorney's office, and that any act of suspension
was that of the board of trustees.
In opposition to the motion for summary judgment and in answer to the affidavits filed in
support thereof, appellant filed his own affidavit comprising some 1,000 words. It contains
nothing controverting the sworn statements of Drs. Boyer, Laub and Lockwood that none of
them, individually or in concert or cooperation with any one, directed the publications in
question, and alleging that any press release of the action taken by the board of trustees was at
the direction of the board and was in no part the action of the defendants.
Further, in opposition to the motion, plaintiff filed an affidavit executed by Mr. Stewart
describing occurrences at the said meeting of the board of trustees and the action taken
instructing Mr. Brayshaw to consult the district attorney with reference to publication of the
notice of suspension. There can be found in Mr. Stewart's affidavit nothing controverting the
denials of Drs. Boyer, Laub and Lockwood that they participated in the publication. Plaintiff
also filed in opposition to the motion the affidavit of Mr. Jesse Whipple similar in purport
and effect to Mr. Stewart's affidavit and similar in its absence of any statement controverting
the denials of the respondents.
To say that this situation left open any area for the trial of a genuine issue as to any
material fact before a judge or jury would deprive Rule 56 NRCP entitled Summary
Judgment of most of its effectiveness. No other conclusion can be reached but that none of
the appellants participated to any extent in the publications.
It is true that the minutes of the trustees' meeting of August 3, 1954 show the presence of
Drs. Boyer, Laub and Lockwood and that the doctors present and the board discussed one of
Dr. Lockitch's cases, and it is appellant's contention that at such meeting the respondents
maliciously, willfully and knowingly made untrue representations concerning Dr. Lockitch to
the members of the board and urged the board to suspend appellant from the staff, and
give the information of such suspension to the newspapers.
of the board and urged the board to suspend appellant from the staff, and give the information
of such suspension to the newspapers. The gravamen of this action, however, is the alleged
libelous publication and not any alleged slander of Lockitch to the board of trustees and
others present at the meeting by respondents.
It should perhaps be noted that in addition to the proofs mentioned, were copies of the
bylaws of the hospital prescribing the manner in which charges of unprofessional or other
objectionable conduct should be filed, the accused doctor notified and an opportunity given
him to appear with his witnesses. Appellant's affidavits are to the effect that no such charges
were made in the manner provided and that no such notice and opportunity to be heard were
given. This may have to do with the legality of the action taken by the board of trustees but is
not pertinent to the asserted libelous and defamatory publication on which the present action
is based.
____________
74 Nev. 40, 40 (1958) Weinstein v. Weinstein
MAMIE D. WEINSTEIN, Appellant, v.
IRVING WEINSTEIN, Respondent.
No. 3999
February 12, 1958. 321 P.2d 245
Appeal from Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
Department No. 1.
Divorce action. The trial court entered judgment for husband, and wife appealed. The
Supreme Court held that finding that husband was domiciled in state at time suit was filed
was supported by record.
Affirmed.
Jones, Wiener and Jones and D. Francis Horsey, of Las Vegas, for Appellant.
Milton W. Keefer, of Las Vegas, for Respondent.
74 Nev. 40, 41 (1958) Weinstein v. Weinstein
Divorce.
In divorce proceedings, finding that husband was domiciled in state at time suit was filed was
supported by record.
OPINION
Per Curiam:
From decree of divorce this appeal is taken by the wife, defendant below. The sole error
assigned is that the record does not support the finding of the trial court that the husband was
domiciled in Clark County, Nevada, at the time suit was filed.
Appellant isolates certain portions of the husband's testimony and contends that they
demonstrate that he was without the necessary bona fide intent to make Nevada his home.
This contention is without merit. Not only did the husband testify generally to having such
intent, he also testified that at the time of trial he had been a resident of Nevada for about five
and one half months and had been physically present in Nevada all of that time; that while he
had come to Nevada with a divorce in mind, that had not been his sole purpose (note the
holding in Walker v. Walker, 45 Nev. 105, 198 P. 433); that he suffered from arthritis and
had been advised that the climate of southern Nevada would be helpful; that he had found it
so and intended for reasons of health to continue his residence; that he had no property or
interests elsewhere. Read in its entirety the testimony amply supports the finding of the trial
court.
Appellant refers us to our decision in Plunkett v. Plunkett, 71 Nev. 159, 283 P.2d 225.
That case is distinguishable upon the facts.
Affirmed.
____________
74 Nev. 42, 42 (1958) Garibaldi Bros. Trucking Co. v. Waldren
GARIBALDI BROS. TRUCKING CO., a Corporation, and CHARLES F. THOMAS,
Appellants, v. HELEN WALDREN, Respondent.
No. 3899
February 12, 1958. 321 P.2d 248.
Appeal from judgment of the Second Judicial District Court, Washoe County; John F.
Sexton, Presiding Judge, Department No. 2.
Action for damages resulting from destruction of horse necessitated by fracture of leg
sustained while being transported in defendants' trailer. The trial court rendered judgment for
plaintiff, and defendants appealed. The Supreme Court, Badt, C. J., held that separately stated
causes of action based on defendants' liability as common carrier, negligence, and res ipsa
loquitur doctrine, were not inconsistent and that res ipsa loquitur doctrine was applicable
notwithstanding allegations and findings of negligence.
Affirmed.
Vargas, Dillon and Bartlett and Springer and McKissick, of Reno, for Appellants.
Leslie E. Riggins, of Reno, for Respondent.
1. Pleading.
Separately stated causes of action against motor carrier for injury necessitating destruction of horse,
based on defendant's liability as common carrier, negligence of defendant, and res ipsa loquitur doctrine,
were not inconsistent and plaintiff was properly permitted to proceed on all three theories of liability
without making an election. Rules of Civil Procedure, rule 8(e) (2).
2. Negligence.
Inference of negligence which may be drawn under proper circumstances under res ipsa loquitur doctrine
does not preclude proof of general negligence or specific acts of negligence.
3. Negligence.
So long as actual cause of injury remains unknown, proof of acts of negligence which may have been
cause supports inference of negligence arising under res ipsa loquitur doctrine and is not inconsistent with
doctrine.
4. Judgment.
Where trial court made separate findings favorable to each of three causes of action against
motor carrier for injury necessitating destruction of plaintiff's horse, based
respectively on defendant's liability as common carrier, negligence of defendant, and
res ipsa loquitur doctrine, and, based on such findings, court granted the relief to
which it concluded plaintiff was entitled, judgment was not objectionable on ground
that it could not be determined therefrom upon which of pleaded theories, liability of
defendant was predicated.
of three causes of action against motor carrier for injury necessitating destruction of plaintiff's horse, based
respectively on defendant's liability as common carrier, negligence of defendant, and res ipsa loquitur
doctrine, and, based on such findings, court granted the relief to which it concluded plaintiff was entitled,
judgment was not objectionable on ground that it could not be determined therefrom upon which of
pleaded theories, liability of defendant was predicated. Rules of Civil Procedure, rules 52, 54(c).
5. Negligence.
Under res ipsa loquitur doctrine, proof that thing which caused injury to plaintiff was under control and
management of defendant and that occurrence was such as in ordinary course of things would not happen if
those having such control or management used proper care, affords sufficient evidence, in absence of
explanation by defendant, that injury arose from or was caused by defendant's want of care.
6. Carriers.
In action against motor carrier for damages resulting from destruction of horse necessitated by fracture of
leg sustained while being transported with other horses in defendant's trailer under complete control and in
exclusive possession of defendant's driver, res ipsa loquitur doctrine was applicable, notwithstanding
allegations and findings that defendant was negligent in not loading horses properly, particularly in failing
to use available partitions to separate and support horses, and in jerking and lurching truck, and regardless
of propensity of horses to injure one another in shipment, in absence of anything to suggest that alleged
propensity had anything to do with injury to plaintiff's horse.
Where evidence supported finding and judgment of liability of motor carrier under res ipsa loquitur
doctrine for damages resulting from destruction of horse necessitated by fracture of leg sustained while
being transported in trailer, whether evidence was sufficient to support finding of negligence or of liability
as common carrier was immaterial.
OPINION
This appeal is taken from a judgment of the district court of the second judicial district in
favor of the plaintiff for damages resulting from injuries to the plaintiff's horse while being
transported by defendant corporation, which necessitated destruction of the animal.
(1) Error is assigned in the trial court's allowing plaintiff to proceed upon a theory of
defendant's liability as a common carrier, its liability for "ordinary negligence", and under
the doctrine of res ipsa loquitur, without requiring her to elect; {2) as a corollary, in the
court's making affirmative findings on all of these three issues; and {3) that the evidence
is insufficient to support a finding of liability on any one of them.
plaintiff to proceed upon a theory of defendant's liability as a common carrier, its liability for
ordinary negligence, and under the doctrine of res ipsa loquitur, without requiring her to
elect; (2) as a corollary, in the court's making affirmative findings on all of these three issues;
and (3) that the evidence is insufficient to support a finding of liability on any one of them.
We have concluded that there is no merit in any of these assignments.
The facts are briefly as follows: The defendant was engaged to haul a number of horses,
property of various individual members of a Reno riding group, known as the White Hats,
from Reno to Sutcliffe, Nevada. Defendant's truck and trailer arrived, driven by the agent of
defendant, to load the horses. The trailer was equipped to haul horses, having available
partitions for the purpose of providing support for the horses and for separating them. These
partitions, however, were not used, except in the case of one horse known to have vicious
propensities. The driver of the truck had complete charge of loading the horses, and the agent
of the plaintiff made delivery of the horses to the driver at the ramp leading into the trailer.
The driver had complete control of the horses and the equipment, and they were in his
exclusive possession during the entire trip to Sutcliffe. Upon arrival at the destination, the
truck was seen to lurch and jerk as the driver maneuvered the truck through a gate; and the
horses were heard screaming and floundering in the trailer. When the horses were unloaded, it
was discovered that the plaintiff's horse had a broken leg and had to be destroyed.
Plaintiff's complaint sets out her three theories of her right to recover damages by way of
three separate causes of action against defendant, (1) under its liability as a common carrier,
(2) by reason of its negligence, and (3) under the doctrine of res ipsa loquitur. The court made
separate findings favorable to each count, found the value of the horse to have been $3000,
and that plaintiff was entitled to judgment for damages in said sum.
[Headnotes 1-3]
(1) Appellant contends that, despite the liberality of our rules of pleading,
1
plaintiff
should have been compelled to elect one of what it denominates three inconsistent theories
of her case. In any event, plaintiff's three counts were not inconsistent. The inference of
negligence that may be drawn under proper circumstances under the doctrine of res ipsa
loquitur does not preclude proof of general negligence or particular acts of negligence. Leet v.
Union Pac. R. Co., 25 Cal.2d 605, 155 P.2d 42, 158 A.L.R. 1008, cert. denied 325 U. S. 866,
65 S.Ct. 1403, 89 L.Ed. 1986. Otherwise plaintiff would be penalized for going forward and
making as specific a case of negligence as possible, a procedure whose end result is not
injurious to the defendant. Leet v. Union Pac. R. Co., supra. So long as the actual cause of
injury remains unknown, proof of acts of negligence which may have been the cause is not
inconsistent with the doctrine but actually supports the inference which the doctrine raises.
Nor is there any inconsistency in alleging negligence on the part of a carrier of livestock
simply because the defendant is also alleged to be liable as a common carrier. Paraphrasing
the language of the court in Reconstruction Finance Corporation v. Goldberg, 7 Cir., 143 F.2d
752, 756, in which plaintiff sought to fix defendant's liability under three separate theories
pleaded, the most that can be said of the complaint is that it stated different theories under
which defendant's liability might be shown.
[Headnote 4]
(2) Corollary to the foregoing is defendant's assignment of error that it cannot be
determined from the judgment upon which theory its liability was based.
Appellant relies on Rule 52 NRCP, which requires that the court shall find the facts
specially and state separately its conclusions of law thereon and direct the entry of the
appropriate judgment. It devotes a large part of its brief to quotations from cases in which
federal appellate courts "have frequently had to warn the lower court judges of the
importance of making appropriate findings".
____________________

1
NRCP Rule 8(e) (2): * * * A party may also state as many separate claims or defenses as he has regardless
of consistency * * *.
a large part of its brief to quotations from cases in which federal appellate courts have
frequently had to warn the lower court judges of the importance of making appropriate
findings. However, it does not appear that either the requirements of Rule 52 or the
admonitions of the federal courts interpreting their corresponding rule were in any respect
violated by the trial court. Under NRCP Rule 54(c), * * * every final judgment shall grant
the relief to which the party in whose favor it is rendered is entitled * * *. The trial court
made findings on all of the grounds pleaded and, based on such findings, granted the relief to
which it concluded plaintiff was entitled.
[Headnote 5]
(3) It is contended that the facts did not support a finding on any of the three theories
pleaded by plaintiff. The first theory upon which plaintiff relies is that of res ipsa loquitur,
which was recognized and applied by this court in the case of Las Vegas Hospital Ass'n v.
Gaffney, 64 Nev. 225, 180 P.2d 594, 598, wherein the court stated: The conclusion to be
drawn from the cases as to what constitutes the rule of res ipsa loquitur is that proof that the
thing which caused the injury to the plaintiff was under the control and management of the
defendant, and that the occurrence was such as in the ordinary course of things would not
happen if those who had its control or management used proper care, affords sufficient
evidence, or, as sometimes stated by the courts, reasonable evidence, in the absence of
explanation by the defendant, that the injury arose from or was caused by the defendant's
want of care.
In the present case, the appellant contends that the doctrine of res ipsa loquitur does not
apply for two reasons, (a) that plaintiff is precluded from taking advantage of the doctrine
because she also alleges specific acts of negligence, and (b) that the doctrine should not apply
in the case of animals, such as horses, which are known to have vicious propensities to injure
one another, that is, that this negatives the control that gives rise to the inference.
The first objection we have heretofore disposed of. Leet v. Union Pac. R. Co., supra. Nor
do we find Austin v. Dilday, 55 Nev. 357, 34 P.2d 1073, 36 P.2d 359, on which appellant
relies, in point.
[Headnote 6]
The plaintiff here did allege and the court found that the defendant was negligent in failing
properly to load the horses, and in particular that the partitions which were provided in the
trailer for that specific purpose were not utilized, so that the horses were not adequately
separated and supported under the circumstances; that the driver of the truck was negligent in
jerking and lurching the truck, knowing that the horses had no support in the trailer and
would likely be thrown to the floor or against one another. However, as to the actual cause of
the injury or the immediate circumstances under which it occurred, plaintiff was able only to
allege that the horse's leg was found to be broken when the truck arrived at its destination.
Under such situation the application of res ipsa loquitur was proper even though specific and
general allegations of negligence were made and were found by the court to be true.
We are not impressed by the contention that the known propensities of horses to injure one
another in shipment prevents the application of the doctrine of res ipsa loquitur. Defendant
advertised its experience as a carrier of livestock and was equipped with partitions for use in
such transportation. Even more convincing is the uncontradicted testimony of a veterinarian,
who found no cuts, abrasions, hoofprints or marks of any kind on the fractured leg but a
longitudinal fracture, some six inches in length, in the upper part of the leg near the horse's
body caused apparently by the horse's falling against the side or back of the truck or through
the falling of another horse upon the leg. He explained that if the horse should have slipped or
stumbled so that the leg extended out at an angle from his body and another horse fell on him
or against him, this could have caused the injury in question.
There is nothing to suggest that the propensity of horses to injure each other had anything to
do with the injury to plaintiff's horse.
[Headnote 7]
Since the evidence supports the lower court's finding, conclusion and judgment of liability
upon application of the doctrine of res ipsa loquitur, it is unnecessary for us to examine the
sufficiency of the evidence to support the finding of negligence or of liability as a common
carrier.
____________
74 Nev. 48, 48 (1958) Williams v. Vickers
CHAS. C. WILLIAMS, MELVIN LONG, JASPER G. BERRY, LOUIS G. BRITT, JOHN
CEPAK, ALFRED L. LONG, PAUL JAMES TORREY, WILLIAM BOUFFARD, FRED
SWITZER, G. L. MITCHELL, LLOYD GARRETT and GEORGE CHENAU, Appellants, v.
WALTER VICKERS, ROY BLUE and PETER LaKOTAS, Respondents.
No. 3976
February 13, 1958. 321 P.2d 586.
Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Members of local union brought action against officers of local union to enjoin officers
from acting contrary to provisions of constitution of international union with respect to the
deposit of funds of local union. The trial court entered judgment dismissing the action, and
the members of the local union appealed. The Supreme Court, Merrill, J., held that the case
was not a proper one for intervention by the courts in the internal affairs of the local union, in
absence of pursuit of remedies under constitutions of international union by members of local
union.
Affirmed.
Oscar W. Bryan, of Las Vegas, for Appellants.
Morse, Graves and Compton, of Las Vegas, for Respondents.
1. Associations.
Ordinarily, courts will not interfere with internal affairs of voluntary associations.
2. Associations.
Judicial interference with internal affairs of voluntary associations is proper only where rights or duties in
question are a proper subject of judicial attention, and, generally, circumstances should be such that
members are unable, through procedures prescribed by association, to secure relief to which they are
entitled.
3. Labor Relations.
Where constitution of international union provided for review by general president of decisions of local
officials and their removal from office for breach of duty, and established procedure for their trial for
breach of duty and for appeal from conviction, and authorized general president to take over control of
locals on their failure to comply with provision of constitution, members of local union, who failed to
pursue remedies under constitution, could not maintain action against officers of local union to enjoin them
from acting contrary to provisions of constitution with respect to deposit of funds of local union.
OPINION
This is an appeal taken by the plaintiffs below from judgment of the trial court dismissing
the action for failure of the complaint to state a claim upon which relief can be granted. The
action is brought by members of local 88 (Las Vegas, Nevada) of the Sheet Metal Workers
International Association against officers of the local and seeks an injunction to prevent those
officers from acting contrary to the provisions of the constitution of the international union.
Action was dismissed upon the ground that the complaint failed to show the pursuit and
exhaustion of remedies within the union framework as provided by the constitution. Upon
this appeal the sole question is whether, upon the facts as alleged in the complaint, this is a
valid ground for dismissal. We have concluded that it is and that judgment should be
affirmed.
The constitution provides that the treasurer of the local shall deposit funds of the local in a
bank selected by members of the local. The complaint alleges that the local had selected as
depositary bank the First National Bank of Nevada, Third Street Branch, Las Vegas; that
Vickers as treasurer of the local acting in concert with defendants Roy Blue and Peter
LaKotas, has either retained [local funds] in his own possession or caused said moneys to be
deposited in banks outside the state of Nevada.
The union constitution provides for review by the general president of decisions of local
officials and for removal of such officials from office for breach of duty. It establishes
procedure for trial of officers for breach of duty and for appeal from conviction. It authorizes
the general president to take over control of locals upon their failure to comply with the
provisions of the constitution.
[Headnotes 1, 2]
Courts will not, in the ordinary case, interfere with the internal affairs of voluntary
associations. For judicial action to be held proper the rights or duties in question must be a
proper subject of judicial attention and, generally, the circumstances should be such that the
members are unable, through the procedures prescribed by the association, to secure the relief
to which they are entitled. Hickman v. Kline, 71 Nev. 55, 279 P.2d 662.
Appellants contend that the general rule should not be held to apply in such a case as this;
that where diversion and misapplication of funds is involved, direct resort to the courts is
proper. In support of their contention they rely upon De Monbrun v. Sheet Metal Workers
International Ass'n., 140 Cal.App.2d 546, 295 P.2d 881, 893. This was an action brought by a
local against the international union and the general president who had taken over control of
the local. The complaint there specifically alleged misappropriation of funds. The court
concluded that, complaint being made of acts of the general president himself, and
considering the nature of those acts, further pursuit of union remedies would be "a futile
pursuit of a putative remedy."
be a futile pursuit of a putative remedy.
The situation in that case is quite different from that disclosed by the complaint before us.
By injunction we are asked in effect to compel specific performance of a duty imposed by the
provisions of the constitution and not otherwise imposed by law; to do so we must act in
disregard of other provisions of that constitution. We are given no cause to suppose that the
defendants would not comply with orders from the general president or that an orderly pursuit
of union remedies would not accomplish a proper solution of this dispute.
[Headnote 3]
We conclude that this is not a proper case for intervention by the courts in the internal
affairs of unions.
Affirmed.
____________
74 Nev. 51, 51 (1958) Cook v. State
PAUL COOK, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 4025
February 17, 1958. 321 P.2d 587
Appeal from judgment of the Fourth Judicial District Court, Elko County; Taylor H.
Wines, Judge.
Prosecution for wilfully and unlawfully using and having on the person a cheating or
thieving device to facilitate removing part of contents of a slot machine. From adverse
judgment of the trial court the defendant appealed. The Supreme Court held that request for
directed verdict was properly denied.
Affirmed.
Samuel T. Bull, of Reno, for Appellant.
Grant Sawyer, District Attorney, Elko County, Joseph O. McDaniel, Deputy District
Attorney, Elko County, and Harvey Dickerson, Attorney General, of Carson City, for
Respondent.
74 Nev. 51, 52 (1958) Cook v. State
and Harvey Dickerson, Attorney General, of Carson City, for Respondent.
Criminal Law.
In prosecution for wilfully and unlawfully having on his person a cheating or thieving device to
facilitate removing part of contents of a slot machine, requested instruction I instruct you to return a
verdict of not guilty by reason of fact that State has failed to make out a prima facie case against the
defendant was properly denied. NRS 175.375.
OPINION
Per Curiam:
Defendant was charged with a gross misdemeanor in that he did willfully and unlawfully
use and have on his person a cheating or thieving device to facilitate removing part of the
contents of a slot machine. In his appeal from judgment of conviction, he asserts that the
proof was fatally defective in not showing that the slot machine in question was a licensed
slot machine; that the legislature must have intended so to provide because NRS 465.080
making any of sundry cheating practices a gross misdemeanor refers from time to time to
licensed gambling games.
Appellant also contends that the proof was fatally lacking in showing that the device in
appellant's possession could actually facilitate the removal of the contents of a slot machine.
We do not reach these questions. The sole error assigned is refusal of the trial court to give
defendant's requested instruction to the jury as follows: I instruct you to return a verdict of
not guilty by reason of the fact that the State has failed to make out a prima facie case against
the defendant.
It was not error to refuse such instruction. The proposed instruction is contrary to the
provisions of NRS 175.375: If at any time after the evidence on either side is closed, the
court deem the same insufficient to warrant a conviction, it may advise the jury to acquit the
defendant. But the jury shall not be bound by such advice, nor must the court for any cause
prevent the jury from giving a verdict, [with certain exceptions not here applicable] * * *."
74 Nev. 51, 53 (1958) Cook v. State
jury from giving a verdict, [with certain exceptions not here applicable] * * *. State v.
Corinblit, 72 Nev. 202, 298 P.2d 470.
Affirmed.
____________
74 Nev. 53, 53 (1958) Coblentz v. Riskin
DR. ALEXANDER COBLENTZ, and JERRY FOX dba THUNDERBIRD JEWEL SHOP,
DR. ALEXANDER COBLENTZ, aka ALEXANDER COBLENTZ, Medical Doctor; JERRY
FOX, Appellants, v. AKIM RISKIN, Respondent.
No. 4008
March 11, 1958. 322 P.2d 905
Appeal from judgment of the Eighth Judicial District Court, Clark County; Ryland G.
Taylor, Judge, Department No. 3.
Action by plaintiff for recovery of value of certain merchandise allegedly delivered by him
to defendants upon consignment pursuant to terms of a written agreement. The lower court
entered judgment for plaintiff and defendants appealed. The Supreme Court, Merrill, J., held
that evidence sustained finding that employee of defendants had actual authority to execute
consignment agreement in question and to receive merchandise in question pursuant thereto
on behalf of defendants.
Affirmed.
G. William Coulthard and John Peter Lee, of Las Vegas, for Appellants.
Jones, Wiener and Jones and D. Francis Horsey, of Las Vegas, Joseph H. Bernfeld, of Los
Angeles, for Respondent.
1. Principal and Agent.
Actual authority includes both implied authority and incidental authority.
Implied authority is that which the agent reasonably believes himself to possess as a result of
representations by the principal or of acts of the agent permitted by the principal
over a course of time in which the principal has acquiesced.
believes himself to possess as a result of representations by the principal or of acts of the agent permitted
by the principal over a course of time in which the principal has acquiesced.
Incidental authority is that which is reasonably necessary, proper and usual to carry into effect main
authority granted.
In action by plaintiff for recovery of value of certain merchandise allegedly delivered by him to
defendants upon consignment pursuant to terms of a written agreement, evidence sustained finding that
employee of defendants had actual authority to execute consignment agreement in question and to receive
merchandise in question pursuant thereto on behalf of defendants.
OPINION
This is an appeal taken by the defendants below from judgment for the value of
merchandise delivered to them by the plaintiff upon consignment pursuant to the terms of a
written agreement. Defendants deny that the merchandise in question was received by them or
that they are parties to a consignment agreement. They assert that in the transactions here
involved plaintiff was dealing with defendants' employee who was without authority to
commit them to a consignment of merchandise.
The sole question upon this appeal is whether the record supports the determination of the
trial court (sitting without jury) that the acts of the employee in receiving the merchandise and
in executing the consignment agreement were on behalf of the defendants and were
authorized by them. We have concluded that the record provides such support and that
judgment should be affirmed.
Appellants are owners of the Thunderbird Jewel Shop in Clark County, Nevada.
Respondent Riskin is a diamond broker and wholesale jeweler of Los Angeles, California. In
August 1955 appellants employed Hyman Davidson for services in connection with their
store. In January 1956 Davidson entered into a consignment agreement with Riskin pursuant
to which he received, for purposes of retail sale, two expensive items of jewelry.
jewelry. In his dealings with Riskin, Davidson represented himself as manager of the jewel
shop with full authority to receive merchandise on consignment. Riskin did not check these
representations with appellants but did check with others in the jewelry trade and satisfied
himself as to Davidson's authority. The jewelry pieces were reconsigned by Davidson without
Riskin's approval or consent. The person to whom they were reconsigned has disappeared.
Riskin demanded of appellants the return of the jewelry or its agreed value pursuant to the
terms of the agreement. Upon failure of appellants to comply with his demand this action was
brought. Judgment in favor of Riskin was given in the sum of $16,300.
Appellants contend that there is no evidence from which the trial court could have found
the essentials of either actual or apparent authority to exist. The legal basis for the court's
judgment does not appear with clarity since two apparently conflicting conclusions of law
have been stated: 1. That Hyman Davidson was the manager of the Thunderbird Jewel Shop
and had authority to receive and accept on behalf of the defendants the merchandise alleged
in paragraphs IX and XII of the Findings of Fact above. 2. That the defendants, and each of
them, are estopped to assert any limitations upon the authority of Hyman Davidson to receive
merchandise for and on behalf of the defendants Coblentz and Fox.
Whatever the significance of the second conclusion may have been to the trial court, the
first is so positively stated and so specific as to the merchandise here involved that we feel
compelled to the view that the trial court regarded the case as one of actual rather than
apparent authority.
In support of its conclusion of authority the court found, That during the month of
August, 1955 the defendants * * * engaged and employed one Hyman Davidson * * * as
manager of the Thunderbird Jewel Shop * * * that the said Hyman Davidson was and acted as
manager of the said Thunderbird Jewel Shop at all times between August, 1955 and the
beginning of March, 1956 on behalf of, for the account of and for the benefit of the said
defendants and each of them.
beginning of March, 1956 on behalf of, for the account of and for the benefit of the said
defendants and each of them. That the said Hyman Davidson, during the period aforesaid,
with the knowledge, consent and approval of the defendants, and each of them, held himself
out to the jewelry trade and to persons dealing with the said Thunderbird Jewel Shop as the
manager of the said Thunderbird Jewel Shop, with full authority to receive merchandise on
behalf of the said Thunderbird Jewel Shop on memorandum and/or consignment.
Although in many respects the evidence is in dispute the record unquestionably provides
support for this finding.
Riskin testified that it was the custom in the jewelry trade to take expensive pieces of
jewelry on consignment rather than by purchase at wholesale. This testimony is compellingly
supported by reason when the nature of consignment transactions and the benefit to retail
merchants of this commercial practice are considered. By consignment retail merchants are
not financially committed to the purchase of expensive items until they have themselves
resold the items. Until resale their only financial commitment is that of safekeeping. Thus
there is substantial benefit to be realized at the minimum of financial commitment. It can
hardly be questioned that the engaging in consignment transactions would be regarded by
those in the jewelry trade as a customary, proper and necessary function of store management.
Davidson testified positively that he had been employed as manager of the store with
instructions to run the store as he saw fit; that he had discussed with appellants the matter of
taking merchandise on consignment and that appellants had approved; that he had received
merchandise on consignment from five firms other than Riskin; that in at least three of these
cases appellants knew of the transactions and that they were consignments and had made no
protest; that in some cases the pieces were returned unsold while in others they had been sold
by the store; that when sold appellants had shared the profits of sale and had signed the
checks to the consignor for the agreed value; that most consignment pieces were placed
on display at the store and were seen by appellants; that of the pieces here involved, at
least one {an obviously expensive piece) had been seen on display by appellants; that
another piece received from Riskin {an expensive emerald ring subsequently returned
unsold) had been seen by appellants on display; that appellants had indicated approval of
Davidson's success in securing such quality pieces and had never said anything about
restrictions upon his authority to deal on consignment.
checks to the consignor for the agreed value; that most consignment pieces were placed on
display at the store and were seen by appellants; that of the pieces here involved, at least one
(an obviously expensive piece) had been seen on display by appellants; that another piece
received from Riskin (an expensive emerald ring subsequently returned unsold) had been
seen by appellants on display; that appellants had indicated approval of Davidson's success in
securing such quality pieces and had never said anything about restrictions upon his authority
to deal on consignment.
[Headnotes 1-3]
Actual authority includes both implied authority and incidental authority. Implied authority
is that which the agent reasonably believes himself to possess as a result of representations by
the principal or of acts of the agent permitted by the principal over a course of time in which
the principal has acquiesced. Wyler Watch Agency v. Hooker (Mo.App., 1955), 280 S.W.2d
849; Weller v. Speet, 275 Mich. 655, 267 N.W. 758. Incidental authority is that which is
reasonably necessary, proper and usual to carry into effect the main authority granted.
McQuade v. Springfield Safe Deposit & Trust Co., 333 Mass. 229, 129 N.E.2d 923;
McDonald v. Gough, 326 Mass. 93, 93 N.E.2d 260; Zazzaro v. Universal Motors, 124 Conn.
105, 197 A. 884; Beit Bros. v. Irving Tanner Co., 315 Mass. 561, 53 N.E.2d 702; See
Mecham, Outlines of Agency (3d. ed.) 137, sec. 233.
[Headnote 4]
The trial court has found that Davidson was employed to serve as manager and that he did
so serve. The evidence we have recited presents a clear case of both implied authority and
incidental authority. We conclude that the trial court's determination of actual authority is
supported by the record and that appellants are bound by Davidson's actions in their behalf in
committing them to the consignment agreement with Riskin.
Affirmed.
____________
74 Nev. 58, 58 (1958) Robinson v. Leypoldt
In the Matter of the Application of CHARLES CALVIN ROBINSON For a Writ of
Habeas Corpus.
CHARLES CALVIN ROBINSON, Appellant, v. W. E. LEYPOLDT, Sheriff of Clark
County, Respondent.
No. 4010
March 11, 1958. 322 P.2d 304.
Appeal from the Eighth Judicial District Court, Clark County; Honorable Frank
Prisoner brought habeas corpus proceeding against sheriff. The lower court entered an
order denying petitioner right to discharge from custody, and the prisoner appealed, and the
sheriff of Clark County made a motion to dismiss the appeal. The Supreme Court, Eather, J.,
held that where prisoner was convicted of burglary in Oregon in May, 1942 and was
sentenced to term of five years in state prison, and in June, 1944, he was granted a parole
under terms of which he was released to custody of Nebraska officers for purpose of standing
trial for felony, and in Nebraska he was convicted and sentenced, but was released in August,
1945, and on January 3, 1946, Oregon parole board revoked his parole, Oregon would not be
deemed to have waived its right to insist on service of sentence because of delivery of
prisoner to Nebraska while under parole in Oregon.
On Motion to Dismiss: Motion Denied.
On Appeal: Affirmed.
Harry E. Claiborne, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, and George M. Dickerson, District
Attorney of Clark County, for Respondent.
1. Extradition.
Mode or manner of departure of person from demanding state generally does not affect his status as a
fugitive from justice and fact that his departure was involuntary or under legal compulsion will not
preclude his extradition.
2. Pardon.
Where prisoner was convicted of burglary in Oregon in May, 1942 and was sentenced to term of five
years in state prison, and in June, 1944, he was granted a parole under terms of which he was released to
custody of Nebraska officers for purpose of standing trial for felony, and in Nebraska he was convicted and
sentenced, but was released in August, 1945, and on January 3, 1946, Oregon parole board revoked his
parole, Oregon would not be deemed to have waived its right to insist on service of sentence because of
delivery of prisoner to Nebraska while under parole in Oregon.
3. Habeas Corpus.
Where Nebraska authorities took prisoner into custody at request of Oregon, and he sought habeas corpus
in Nebraska and was discharged on Oregon's default, and prisoner was subsequently convicted of federal
offense and was sentenced to federal prison, and Oregon placed detainer against him with prison
authorities, and he attacked by habeas corpus Oregon's right to custody, and Oregon withdrew its detainer,
and no hearing was had, res judicata was not applicable in subsequent habeas corpus proceeding by
prisoner in Nevada when Oregon again sought to extradite prisoner.
OPINION
This is an appeal from order of the court below denying appellant discharge from custody
under a writ of habeas corpus. The matter is before the court at this time upon the merits of
the appeal and also upon the state's motion to dismiss the appeal upon the ground that the
issues involved have become moot. Having doubts as to the desirability of independent action
upon the motion to dismiss (for reasons hereinafter discussed), we ordered it submitted
contemporaneously with the appeal upon its merits.
On Motion to Dismiss
At the time of issuance of the writ appellant was in the custody of W. E. Leypoldt, sheriff
of Clark County, held for extradition to the State of Oregon under executive warrant of the
governor of this state. At the conclusion of the hearing had below the judge denied discharge
under the writ. Representatives of the State of Oregon being then present in court the judge
ordered the appellant remanded to their custody under the executive warrant.
of Oregon being then present in court the judge ordered the appellant remanded to their
custody under the executive warrant. NRS 34.560 provides: In cases where * * * any other
person is entitled to the restraint or custody of such party, the judge may order such party to
be committed to the restraint or custody of such person as is by law entitled thereto. The
Oregon officials promptly took custody of the appellant and removed him to the State of
Oregon. These circumstances, the state contends, have rendered moot the issues of Leypoldt's
right to retain the appellant in custody.
Appellant contends that if that issue has become moot it is through improper procedures
followed by the trial court; that if this appeal be dismissed we shall have sanctioned the
destruction by the judicial department of the right of appeal granted this appellant by statute;
NRS 34.380, subsections 3 and 4. The procedure assigned as error is the action of the court
below in remanding appellant to the custody of the Oregon officers rather than to Sheriff
Leypoldt, whose right to retain custody is the issue involved under the writ.
The motion to dismiss presents many issues of law, not the least vexing being the
reconciliation of what may well be inconsistent provisions of the habeas corpus act. If it be
true that remand to the Oregon officers instead of to Sheriff Leypoldt has rendered the issues
on appeal moot and thus destroyed the effectiveness of the appeal, we are confronted with
two alternatives: either holding that the legislative grant of right of appeal has impliedly
repealed the section authorizing such change of custody or holding that the legislature in
granting right of appeal was not concerned with possible destruction of the right under these
circumstances. Our choice of alternatives would necessitate our entry into a field of
legislative policy which we are reluctant to enter unless necessary to the disposition of the
dispute before us.
In this case it is not necessary. A consideration of the merits of the appeal has convinced
us that affirmance is proper. Accordingly, we disregard the suggestion that the appeal has
become moot and make no determination upon that point.
upon that point. We refer to the legislative branch of the government the problems of
legislative policy to which we have referred and the consideration of possible statutory
inconsistencies. To this end the motion to dismiss is denied.
On Appeal
Upon two grounds appellant asserts that the court below was in error in denying him
discharge from custody under his writ.
First: He contends that he was not a fugitive from justice of the State of Oregon.
In May 1942 appellant was convicted of burglary in Oregon and sentenced to a term of
five years in the state prison. In June 1944 he was granted parole under the terms of which he
was released to the custody of officers of Lincoln County, Nebraska, for the purpose of
standing trial for felony. He was convicted in Nebraska and sentenced to serve 20 months in
the state prison. He was released in August 1945. On January 3, 1946, with a balance of his
Oregon sentence remaining to be served, the Oregon parole board revoked his parole. The
record before us is silent as to the basis for the revocation. We may assume it was for
violation of the conditions of the parole. It was for the purpose of requiring him to serve the
balance of his sentence that his return to Oregon was sought by the executive warrant here in
question.
Appellant contends that in delivering him to Nebraska, Oregon has waived further service
of sentence; that since he was compelled to leave Oregon under these circumstances he
cannot be regarded as a fugitive from justice of that state. In support of his contention he
relies upon In re Whittington, 34 Cal.App. 344, 167 P. 404; People ex rel. Barrett v. Bartley,
383 Ill. 437, 50 N.E.2d 517, 147 A.L.R. 935; Ex parte Drake, Cal.App., 233 P.2d 931,
affirmed 38 Cal.2d 195, 238 P.2d 566.
[Headnote 1]
Authorities are divided upon this proposition. In our view the better rule and the weight of
authority today is to the effect that the mode or manner of a person's departure from the
demanding state generally does not affect his status as a fugitive from justice and that
the fact that his departure was involuntary or under legal compulsion will not preclude his
extradition. U. S. ex rel. Moulthrope v. Matus, 2 Cir.,
departure from the demanding state generally does not affect his status as a fugitive from
justice and that the fact that his departure was involuntary or under legal compulsion will not
preclude his extradition. U. S. ex rel. Moulthrope v. Matus, 2 Cir., 218 Fed.2d 466;
Application of Fedder, 143 Cal. App.2d 103, 299 P.2d 881; Brewer v. Goff, 10 Cir., 138
Fed.2d 710, holding that the Whittington decision is against the weight of authority.
1

The essential fact remains that having committed an act which the law of Oregon
constitutes a crime and having been convicted and sentenced therefor, appellant departed
from Oregon jurisdiction and, when sought for enforcement of his penal obligation to that
state, was found in another state.
[Headnote 2]
Nor do we feel that Oregon can be said to have waived its right to insist upon service of
sentence. Delivery to Nebraska was under parole from Oregon. Under these circumstances
appellant continued while in Nebraska and until revocation of parole to serve the Oregon
sentence. It was for Oregon to fix the conditions under which its sentence might be served.
Oregon's act was not a suspension of sentence or abandonment of the prisoner. The appellant
was not prejudiced in any constitutional right by Oregon's action in aid of the administration
of justice in a sister state.
Second: Appellant contends that Oregon's right of requisition is barred by res judicata.
Following Oregon's revocation of parole in 1946, Oregon on two occasions (prior to the
present proceeding) has laid claim to a right to take appellant into custody as a parole
violator. On both occasions appellant has secured discharge through habeas corpus.
The first occasion was in Nebraska. Local authorities took appellant into custody at
Oregon's request. Appellant sought habeas corpus. The writ was summarily denied.
____________________

1
California amendment of Penal Code, sec. 1549 (St. 1937, p. 1583), destroyed the effect of the Whittington
case by expressly giving authority to the governor to surrender any person charged with crime in another state,
even though such person left the demanding state involuntarily.
denied. On appeal the Nebraska Supreme Court, Application of Robinson, 150 Neb. 443, 34
N.W.2d 887, directed the lower court to issue the writ and proceed to hearing. Oregon failed
to press its rights. No hearing was had. Appellant was discharged, without hearing, on
Oregon's default.
The second occasion was in Kansas. Appellant had been convicted of a federal offense and
sentenced to the federal prison at Leavenworth. Oregon placed a detainer against him with the
prison authorities. Appellant through habeas corpus attacked Oregon's right to custody.
Oregon withdrew the detainer. No hearing was had.
[Headnote 3]
It cannot be said that appellant's discharges under habeas corpus in these two occasions
resulted from judicial determinations which now bar Oregon from asserting the right of
requisition. Appellant's discharges resulted simply from Oregon's failure to press its rights.
Although appellant contends that the failure of a state to assert or press its extradition rights
at a given time would result in a waiver of these rights, no authority is cited in support of this
contention, and none has come to the attention of the court. Never has any hearing been had
upon the merits of appellant's contentions until the hearing before the court below. Never
were those rights judicially determined until the present proceeding. Res judicata does not
apply. Application of Kimler, 37 Cal.2d 568, 233 P.2d 902; certiorari denied, 342 U.S. 898,
72 S.Ct. 233, 96 L.Ed. 672; Desmond v. Eggers, 9 Cir., 18 Fed.2d 503; State v. Shears, 119
Wash. 275, 205 P. 417.
On Motion to Dismiss: Motion denied.
On Appeal: Affirmed.
____________
74 Nev. 64, 64 (1958) Force v. Peccole
ARTHUR R. FORCE, Appellant, v. WILLIAM PECCOLE, L. L. OUSLEY, FRANK S.
DITTMAN and MARGARET A. DITTMAN, Husband and Wife, JOHN DOES I TO V,
JANE DOES I TO V, JOHN DOE CORPORATION, a corporation, JOHN DOE and
RICHARD ROE, a Copartnership, Respondents.
No. 4029
March 11, 1958 322 P.2d 307
Appeal from summary judgment of the Eighth Judicial District Court, Clark County; Frank
Action to recover an interest in a joint venture. A judgment of the lower court granted
summary judgment and the plaintiff appealed. The Supreme Court, Per Curiam, held that the
grant of summary judgment was error.
William, P. Compton, of Las Vegas, for Appellant.
George E. Franklin, Jr., of Las Vegas, for Respondents.
Judgment.
In action to establish an interest in a joint venture, where proposition alleged by respondent in support
of summary judgment, either went to the sufficiency of the complaint to state a claim or anticipated
matters of pleading or proof and did not demonstrate as a matter of law that no cause of action actually
existed, grant of summary judgment for respondents was error.
OPINION
Per Curiam:
This is an appeal from summary judgment rendered by the trial court against the appellant
as plaintiff in the action below. The action is brought to establish an interest in a joint venture
claimed by the plaintiff through an assignment from one J. J. Sheppard whose interest, in
turn, is allegedly established or evidenced by a written contract to which the defendants
are parties.
74 Nev. 64, 65 (1958) Force v. Peccole
a written contract to which the defendants are parties. Sheppard himself was not a party to the
contract.
The ground upon which the trial court based judgment does not appear from the record. In
support of judgment respondents contend that appellant has failed to establish himself as a
third party beneficiary of the contract or as grantee of an interest in the joint venture. Without
further clarification and briefing we are reluctant to attempt specification of the issues thus
raised and to dispose of them upon the merits. However, even assuming merit in respondents'
position, the propositions they assert, as we understand them, either go to the sufficiency of
the complaint to state a claim or anticipate matters of pleading or proof. They do not
demonstrate as a matter of law that no cause of action actually exists and that respondents are
now entitled to judgment. A distinction must be recognized between the question: Has a
claim been stated? and the question: Has it been demonstrated that no claim can be stated
since no claim exists? Ramsouer v. Midland Valley R. Co., 44 F.Supp. 523.
This being so, the issue of appellant's right to an interest in the joint venture remains for
determination, although issues relating to the sufficiency of pleadings may preliminarily be
involved also. Summary judgment, then, was error.
Reversed and remanded with instructions that summary judgment be set aside and for
____________
74 Nev. 65, 65 (1958) State v. Steward
THE STATE OF NEVADA, Appellant, v. EARL
LEWIS STEWARD, Respondent.
Nos. 4077 and 4087
March 14, 1958. 323 P.2d 23
Appeal from Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Defendant was prosecuted for murder committed while in a moving van traveling through
Nevada on a trip terminating in Elko County.
trip terminating in Elko County. The lower court held the information defective and the state
appealed and the defendant cross-appealed. The Supreme Court, Badt, C. J., held that the in
transitu statute is not invalid as denying the right of jury trial and that the information was
sufficient to charge an offense under the statute.
On state's appeal, reversed and remanded.
On respondent's cross appeal, affirmed.
Grant Sawyer, District Attorney, Elko, and Harvey Dickerson, Attorney General, Carson
City, for Appellant.
Williams and Mann, of Elko, for Respondent.
1. Criminal Law.
The common law of England with reference to venue was subject to the inherent right of the Legislature
to make modifications pertaining to the place of trial.
2. Jury.
The in transitu statute permitting an offense committed in a conveyance to be prosecuted in any county
through which the conveyance passes in the course of its trip or in the county in which the trip terminates is
not unconstitutional as violating the provisions respecting right of trial by jury. NRS 171.040; Const.
art. 1, 3.
3. Indictment and Information.
An information charging that defendant committed murder while in a moving van prosecuting its trip
through Nevada and which trip terminated in Elko County was sufficient to charge an offense within the in
transitu statute so as to permit prosecution for the offense in Elko County. NRS 171.040; Const. art 1,
3.
OPINION
The state filed an information in Elko County under Nevada's in transitu statute,
charging Steward with the crime of murder committed in the state while in a moving van
traveling eastward in the state on a trip terminating in Elko County. The district court held the
information to be fatally defective in not alleging that the crime was committed in Elko
County, and the state appealed.
appealed. Steward seeks to sustain the district court's ruling on the ground that the in transitu
statute violates the constitutional guaranty of a jury trial. We have concluded that the in
transitu statute is not in contravention of the constitutional limitation.
Section 3 of Art. I of the Nevada constitution reads: The right of trial by jury shall be
secured to all and remain inviolate forever; * * *.
The statute referred to as the in transitu statute is NRS 171.040, reading as follows: When
an offense is committed in this state on board a vessel navigating a river, slough, lake or
canal, or lying therein, in the prosecution of her voyage, the jurisdiction is in any county
through which the vessel is navigated in the course of her voyage, or in the county where the
voyage terminates; and when the offense is committed in this state on a railroad train, car,
stage or other public conveyance, prosecuting its trip, the jurisdiction is in any county through
which the train, car, stage or other public conveyance passes in the course of its trip, or in the
county where the trip terminates.
The information charged: That the said defendant, Earl Lewis Steward, did on or about
the ninth day of September, 1957, in the State of Nevada, and before the filing of this
Information, commit a felony, murder, as follows, to-wit: That the said defendant did then
and there unlawfully, feloniously, and with malice aforethought, kill one Thomas R. Jessen,
by shooting him in the head with a twenty-two calibre pistol. That said offense was
committed by the said defendant while in a moving van prosecuting its trip eastward through
the State of Nevada on U. S. Highway 50. That said trip terminated at a point in Elko County,
Nevada, * * *.
Respondent contends that the inviolable constitutional rights of trial by jury were those
existing at common law at the time of the adoption of the constitution. This court has indeed
so held, State v. McClear, 11 Nev. 39; State v. O'Flaherty, 7 Nev. 153. But respondent insists
further that one of such fundamental rights so secured was the right to be tried in the county
(corresponding with the particular town, neighborhood, village, parish, vicinage or visne, as
referred to by the English writers) in which the crime occurred, and that this right is
violated by the in transitu statute.
vicinage or visne, as referred to by the English writers) in which the crime occurred, and that
this right is violated by the in transitu statute.
Although presented here for the first time in Nevada, the question has received the
consideration of a number of the courts of the nation. We may first eliminate from
consideration those cases in which the constitutional guaranty was of a jury trial in the county
or district where the offense was committed. Such cases are illustrated by Woodward v.
Petteway, 123 Fla. 892, 168 So. 806 (right of trial in a county where the crime was
committed); State v. McDonald, 109 Wis. 506, 85 N.W. 502, 506 (where the guaranty was
of trial in any county or district); State v. Reese, 112 Wash. 507, 192 P. 934, 11 A.L.R.
1018; Craig v. State, 50 Tenn. 227. See also Watt v. People, 126 Ill. 9, 18 N.E. 340, 1 L.R.A.
403. For authoritative precedent we must turn to those states whose respective constitutions
correspond with our constitutional guaranty of trial by jury without reference to the venue. It
is true that the Supreme Court of Michigan held that the right of trial by jury meant trial in the
county where the offense was committed and thus held an in transitu statute unconstitutional.
People v. Brock, 149 Mich. 464, 112 N.W. 1116. It relied on an earlier case, Swart v.
Kimball, 43 Mich. 443, 5 N.W. 635, which held that one of the essentials of a jury trial was a
trial in the county where the alleged offense was committed. It held that an act permitting
prosecution for trespass on state land in a county other than that in which the lands were
situated was void.
Venue statutes of various kinds, like in transitu statutes, have been from time to time
attacked on precisely the same grounds as the attack on our in transitu statute, namely, that
they violated one of the fundamental aspects of a constitutional guaranty of a jury trial, to wit,
trial in the county where the offense was committed. Consideration of such venue statutes has
been along identical lines of consideration of in transitu statutes. We may, therefore, be
guided by precedent in the consideration of such venue statutes.
As introductory to such consideration we refer generally to the annotator's note at 11
A.L.R. 1021 to the effect that there would seem to be little doubt, in the absence of all
constitutional limitation, that legislation fixing the venue of criminal prosecutions for
offenses committed in or upon public conveyances in transitu in a county other than that in
which the crime was actually committed would be valid, so that the question resolves itself
into one of construction of the various constitutional provisions relating more or less directly
to the venue of criminal prosecutions. We have already put aside as affording no precedent
cases involving constitutions requiring the venue to be in the county in which the offense was
committed.
In People v. Goodwin, 263 Ill. 99, 104 N.E. 1018, the court assumed the constitutionality
of the in transitu statute without specifically deciding the point. In People v. Dowling, 84
N.Y. 478, 487, the court held that it was in the power of the legislature to enact the statute,
although it made no other reference to its constitutionality. The court there said: The
legislature did not declare or define an offense not before known to the law. It permitted a
place of trial of known offenses elsewhere than was lawful before the passage of the act. It
was in the power of the legislature so to do. In Nash v. State, 2 G. Greene 286 (Iowa);
People v. Hulse, 3 Hill 309 (New York); and Commonwealth v. Brown, 71 Pa. Super. Ct.
575, the statute was applied, but the question of its constitutionality was not referred to.
State v. Pace, 129 Conn. 570, 29 A.2d 755, 756, involved a statute providing that violation
of the act could be prosecuted before any court of the state in the same manner as if such
offense had been committed within the territorial jurisdiction of such court. The court said:
Our constitution, unlike those of some states, contains no provisions restricting the place of
trial of persons accused of crime * * *. The right of one accused of crime to have a fair and
impartial trial has been the basis of Anglo-Saxon criminal jurisdiction ever since Magna
Carta. But that has never been regarded as involving as a necessary element the
requirement that in all cases an accused be tried within the county or other territorial
jurisdiction within which the offense was committed."
involving as a necessary element the requirement that in all cases an accused be tried within
the county or other territorial jurisdiction within which the offense was committed. The
court then refers to Blackstone's statement that accusations of murder might be tried by the
king's special commission in any shire or place in England.
In People v. Hetenyi, 277 App. Div. 310, 98 N.Y.S.2d 990, affirmed 301 N.Y. 757, 95
N.E.2d 819, the court noted that the general rule requiring offenses to be tried in the county
where committed, although recognized by the legislature, had been subjected to many
exceptions by the legislature itself, noting specially the section of the code of criminal
procedure where the exceptions had been accomplished. Particular reference was made to
section 137 of the New York Criminal Procedure Code which is substantially the same as our
in transitu statute.
It was definitely stated in State v. Lewis, 142 N.C. 626, 55 S.E. 600, 602, 7 L.R.A., N.S.,
669, with reference to legislative power to place the venue in a county other than that in
which the offense was committed: The legislative power can be restrained only by
constitutional provisions. It cannot be restricted and tied down with reference to the common
law or statutory law of England. There is nothing in the common law or statutory law of
England which is not subject to repeal by our Legislature, unless it has been re-enacted in
some constitutional provision. To like effect are Ex Parte MacDonald, 20 Cal. App. 641,
129 P. 957, and People v. Dowling, 84 New York 478. See also People v. Martin, 188 Cal.
281, 205 P. 121, 21 A.L.R. 1399.
Respondent cites State v. Pray, 30 Nev. 206, 94 P. 218, 221, and State v. Chamberlain, 6
Nev. 257, for the proposition that the common law guaranty of trial by jury included the right
to be tried in the county in which the offense was committed. Against this contention is the
statement by the court in the Pray case, after recognizing that the common law prevails here:
The crime of larceny was an exception to this rule, and by statutory enactment the rule
has been modified with reference to certain other specified crimes."
of larceny was an exception to this rule, and by statutory enactment the rule has been
modified with reference to certain other specified crimes. We do not consider the
Chamberlain case in point. Nor do we find anything in the Eureka County Bank Habeas
Corpus Cases, 35 Nev. 80, 126 P. 655, 129 P. 308, upon which respondent also relies,
supporting the contention that venue may not be fixed by the legislature in a county other than
that in which the offense was committed.
Respondent relies chiefly, however, on People v. Powell, 87 Cal. 348, 25 P. 481, 11,
L.R.A. 75, which held, under a constitutional provision similar to our own, that a statute
permitting a change of venue in a criminal case upon application of the state without the
consent of the accused, on the ground that an impartial jury could not be obtained in the
county where the crime was committed, was void. We might dispose of this case by limiting
it to the particular kind of statute that it struck down, as described above. This would not be a
satisfactory disposition in view of the court's learned discussions of the question, its historical
review of the English common law guaranty of trial by jury and of its conclusion that trial in
the county where the offense was committed is an essential and fundamental element of trial
by jury, though not expressed in the constitution. Its definite holding to such effect, however,
does not seem to have been followed in later California cases or to have received the approval
of other courts. In People v. Prather, 120 Cal. 660, 53 P. 259, the Supreme Court of
California affirmed a conviction under a statute providing that when property taken in one
county by larceny has been brought into another, the jurisdiction of the offense is in either
county. Although the opinion did not refer to People v. Powell, it was considered by the
District Court of Appeals of California in People v. Richardson, 138 Cal.App. 404, 32 P.2d
433, 434, that the Prather case had impliedly repudiated the Powell case. In People v.
Richardson the court was considering a penal code section which provided: The jurisdiction
of a criminal action for escaping from prison is in any county of the state."
of a criminal action for escaping from prison is in any county of the state. It referred with
approval to Ex Parte MacDonald, 20 Cal.App. 641, 129 P. 957, which upheld a statute
providing that when bigamy was committed in one county and the defendant was
apprehended in another, the jurisdiction was in either county, and which held that if the
statute guarantees the accused the right of trial by jury in the place by law designated as the
place for trial, it confers upon him the right contemplated by the Constitution, and that since
under the Constitution, the place of trial is subject to legislative determination, authorities
holding that the trial must be in the county where the offense was committed had no
application. After a long and well considered examination of the subject matter, its history
and development, the court concluded that the real essential attributes of the so-called
common law jury trial were at all times number, impartiality and unanimity'; that at the time
that our Constitution was adopted the only right which the accused had under the common
law of England with respect to the place from which the jury should be selected was a right to
have the jury selected from the vicinage or county which might be fixed by law for the place
of trial; * * *. (Italics supplied.)
In State v. Miles, 43 Idaho 46, 248 P. 442, the supreme court upheld a statute providing for
a change of venue on application of the state. It rejected People v. Powell in the face of the
more recent holding of Ex Parte MacDonald. The court stated that the great weight of
authority was opposed to the rule announced in People v. Powell and relied upon Barry v.
Traux, 13 N. Dak. 131, 99 N.W. 769, 65 L.R.A. 762, 112 Am.St.Rep. 662, upholding a
similar statute permitting change of venue on application of the state in the face of a similar
constitutional provision guaranteeing a jury trial.
Other cases are to like effect. In the annotation in 76 A.L.R. 1035 it is stated: In the
absence of any limitation by constitutional provision, it seems to be generally recognized that
the power of a state legislature to fix the venue of criminal prosecutions in a county or
district other than that in which the crime was committed is unrestricted."
district other than that in which the crime was committed is unrestricted. Contra, where the
constitution guarantees a trial by a jury of the county in which the offense has been
committed.
[Headnotes 1, 2]
Running through many of the cases cited above, we find many references to modification
of the ancient common law rule of right of trial by jury in the vicinage or county by various
statutes. These included trial elsewhere of charges of murder, treason, offenses against the
black act (poaching), felonies committed out of the realm in destroying the king's ships and
other offenses. Numerous examples also appear in statutes within the respective states
approved by the courts, some of which we have described above. Not only was the common
law of England with reference to venue materially modified by statute at the time of the
adoption of our constitution but the same was, in the absence of constitutional prohibition,
subject to the inherent right of the legislature to make modifications pertaining to place of
trial. State v. Lewis, 142 N.C. 626, 55 S.E. 600, 7 L.R.A. (NS) 669.
[Headnote 3]
The defendant attacked the information in the trial court on the ground that the allegation
that the homicide had been committed in a moving van did not bring it within the purview
of the statute. The defendant has filed a cross appeal assigning the court's ruling as error. We
see no merit in this contention.
As the sole ground of support of the lower court's dismissal is the asserted
unconstitutionality of the in transitu statute, and as we have concluded that such statute does
not contravene the constitutional guaranty of a jury trial, the judgment is reversed and the
case remanded for further proceedings. On respondent's cross appeal, the ruling and order of
the court sustaining the sufficiency of the allegation that the homicide had occurred in a
moving van is affirmed.
____________
74 Nev. 74, 74 (1958) Goldblatt v. Harris
In the Matter of the Application of ROBERT H. GOLDBLATT, for a
Writ of Habeas Corpus.
ROBERT H. GOLDBLATT, Appellant, v. J. C. HARRIS, Sheriff of
Elko County, Respondent.
No. 4068
March 17, 1958. 322 P.2d 902.
Appeal from the Fourth Judicial District Court, Elko County; Taylor Wines, Judge.
Habeas corpus proceeding by applicant charged with involuntary manslaughter. The lower
court denied writ and applicant appealed. The Supreme Court, Eather, J., held that where
testimony at preliminary hearing showed that applicant while driving on level road in broad
daylight veered into opposite lane of travel and collided with oncoming vehicle, there was
sufficient evidence to establish that a public offense had been committed and that there was
sufficient cause to believe that applicant was guilty thereof.
Affirmed.
Williams and Mann, of Elko, for Appellant.
F. Grant Sawyer, District Attorney, Joseph O. McDaniel, Deputy District Attorney, of
Elko County, and Harvey Dickerson, Attorney General, of Carson City, for Respondent.
1. Habeas Corpus.
Where defendant had been held to answer involuntary manslaughter charge following preliminary
hearing, and he sought a discharge on habeas corpus, question presented was whether there was sufficient
evidence presented at preliminary hearing to establish that a public offense had been committed, and
sufficient cause to believe the defendant was guilty thereof.
2. Criminal Law.
In habeas corpus proceeding by applicant charged with involuntary manslaughter as result of automobile
collision, where testimony at preliminary hearing showed that applicant had been driving on level road in
broad daylight when he veered into opposite lane of travel and collided with oncoming vehicle, there was
sufficient evidence presented to establish that a public offense had been committed and there was sufficient
cause to believe that applicant was guilty thereof. NRS 171.450-171.455, 193.190, 200.070,
484.060; St. 1957, p 495 72.
3. Criminal Law.
Where party was charged with involuntary manslaughter as result of death of victim riding in oncoming
automobile struck by party's vehicle which had veered into the wrong lane of travel, for purpose of
preliminary examination it was not incumbent upon state to negative every possible circumstance that
might have excused or explained party's action in veering into his wrong lane of travel. NRS
171.450-171.455, 193.190, 200.070, 484.060; St. 1957, p. 495, 72.
OPINION
Goldblatt had been held to answer following a preliminary hearing before the justice of the
peace, charging appellant with involuntary manslaughter. He sought a discharge on habeas
corpus, and this appeal is from the order of the district court that the application for a
permanent writ be denied, the petition dismissed, and the applicant remanded to the custody
of the sheriff of Elko County.
The complaint charged that Goldblatt, on the 19th day of July, 1957 * * * did commit a
felonyinvoluntary manslaughter, as follows: that said defendant did then and there at
approximately 5:00 A. M. unlawfully and feloniously kill one Geryl Jordan, age 16, of
Fresno, California, without any intent to do so, in the commission of an unlawful act, to-wit,
driving and operating a westbound 1951 Dodge 2-door sedan in a reckless manner or in other
than, in a careful and prudent manner upon a public highway * * * in that he did drive said
westbound Dodge sedan across the center line of said highway and into the eastbound lane (S.
1/2) of said highway into the path of and collide with a 1957 Pontiac 4-door sedan which was
proceeding in an easterly direction and lawfully occupying the eastbound lane of said
highway at said time and place. * * * that Jordan, a passenger in the Pontiac, was killed and
that defendant's recklessness was the proximate cause of his death.
NRS 200.070 provides: Involuntary manslaughter shall consist in the killing of a human
being, without any intent so to do, in the commission of an unlawful act.
any intent so to do, in the commission of an unlawful act. * * *
NRS 484.060 provides: It shall be unlawful for any person to drive or operate a vehicle
* * * (a) in a reckless manner on any street or highway in this state; or (b) in any other than a
careful or prudent manner; and that a person who violates such provisions shall be guilty of
a misdemeanor.
Stats. of Nev. 1956-1957, 495, provide in part. Sec. 72. Whenever any roadway has been
divided into two or more clearly marked lanes for traffic the following rules shall apply: 1. A
vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be
moved from such lane until the driver has first ascertained that such movement can be made
with safety. Violation is declared to be a misdemeanor.
NRS 193.190 reads as follows: In every crime or public offense there must exist a union,
or joint operation of act and intention, or criminal negligence.
NRS 171.450 provides: If, after hearing the proofs, * * * it appears either that no public
offense has been committed or that there is not sufficient cause to believe the defendant guilty
of a public offense, the magistrate must order the defendant to be discharged. * * *
NRS 171.455 provides: If, however, it appears from the examination that a public offense
has been committed, and there is sufficient cause to believe the defendant guilty thereof, the
magistrate must make an order to such effect and that defendant be held to answer.
[Headnotes 1, 2]
In view of the foregoing statutory provisions, the question here presented is whether there
was sufficient evidence presented at the preliminary hearing to establish that a public offense
had been committed, and sufficient cause to believe the defendant guilty thereof. We look
then at the evidence presented.
The accident occurred about daybreak, with sufficient daylight to observe objects more
than 1,000 feet distant, in open country on a straight, flat, level, oiled highway 40 feet wide.
Goldblatt was driving his 1951 Dodge in a westerly direction and the car in which the
deceased was riding was proceeding easterly three feet or more within its own lane, that
is, three feet or more to the south of the white dividing line.
a westerly direction and the car in which the deceased was riding was proceeding easterly
three feet or more within its own lane, that is, three feet or more to the south of the white
dividing line. At the time and place of impact defendant's car had veered out of its own
westbound lane to a point from three to four and one-half feet into the eastbound or opposing
lane of traffic. Geryl Jordan was killed in the resulting impact. Both vehicles were traveling at
about 60 to 65 miles per hour. Shewmake and his wife, occupants of the eastbound car, first
noticed defendant's car approaching at a distance of over 1,000 yards. At a distance of four or
five car lengths they observed it swerving into their lane. From that instant to the time of the
impact not more than about one second could have elapsed. Shewmake tried to swerve to his
right but could not avoid the accident.
Appellant contends: It would be incumbent upon the state to produce evidence to
establish as a reasonable and probable proposition that appellant had committed an unlawful
act and that the act was committed in such a manner as to show criminal negligence.
Appellant contends that there is complete absence of proof to show either of these necessary
elements. He contends that the occurrence of the collision as described does not establish
that appellant performed any physical act which caused his vehicle to cross over the center
line or with a state of mind indicating a reckless disregard for the rights of others; that it
would be necessary, for example, to infer that the appellant was asleep under circumstances
showing that he must have known that he was drowsy or sleepy, or that intoxication had
affected his driving, or some other cause tending to establish criminal negligence; that on the
contrary it could be equally inferred that a tire blew out, that he was blinded by lights, that
there was some unforeseen mechanical failure, or that his attention might have been diverted
by some object, or some other fact which would show accident, surprise or inadvertence; that
the state has had to resort to speculation to determine the reason why defendant's car was in
the opposing lane of traffic; that this is applying the doctrine of res ipsa loquitur, which is
contrary to the presumption of innocence and cannot be applied in a criminal case.
of traffic; that this is applying the doctrine of res ipsa loquitur, which is contrary to the
presumption of innocence and cannot be applied in a criminal case.
In support of these contentions appellant refers to a number of cases which we shall not
discuss, as they had to do with the actual trial of actions in which proof was required beyond
a reasonable doubt. The extent of proof necessary at a preliminary examination in order to
hold the defendant to answer, NRS 171.450-171.455, supra, has been considered by this court
on several occasions.
In In Re Kelly, 28 Nev. 491, 499, 83 P. 223, 226, this court said: 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.' (Italics supplied.) To the same effect, In Re Oxley and
Mulvaney, 38 Nev. 379, 149 P. 992: Ex Parte Molino, 39 Nev. 360, 157 P. 1012; Ex Parte
Liotard, 47 Nev. 169, 217 P. 960, 30 A.L.R. 63; In Re Mitchell, 1 Cal.App. 396, 82 P. 347.
Under such construction of the functions of the committing magistrate we hardly feel that
it was his duty to pass upon the points of distinction between simple negligence, recklessness,
culpable negligence, criminal negligence, lack of care or prudence or other degree of
negligence. To what extent the questions raised by appellant may be material to the issues
upon the trial of the action, we are not called upon to determine.
Appellant relies upon the language used by the court in Ex Parte Whitlatch, 60 Cal.App.2d
189, 140 P.2d 457, 459. The California traffic statute there under consideration required a
showing of willful indifference or reckless disregard to the safety of others. Nor is the case
in point on its facts. There was no evidence as to speed and no evidence as to visibility of the
parked car struck by defendant's vehicle, which was proceeding in its own lane, and nothing
to warrant an inference either of speed or visibility.
speed or visibility. Under those and other conditions recited in the opinion the court properly
held that there was lack of probable cause to hold the defendant to answer.
[Headnote 3]
Appellant distinguishes the present case from cases holding that it is recklessness and
evidence of criminal or culpable negligence to drive on the left side of a public highway on
approaching the brow of a hill or a blind curve. (Potter v. State, 174 Tenn. 118, 124 S.W. 2d
232; People v. Seiler, 57 Cal.App. 195, 207 P. 396; People v. Marconi, 118 Cal.App. 683, 5
P.2d 974; Wells v. State, 162 Miss. 617, 139 So. 859; State v. Jessup, 183 N.C. 771, 111 S.E.
523), because in such cases it was apparent that the defendant had a purpose in thus using the
wrong lane, while in the present case no such purpose was either shown or could be inferred.
In our opinion the answer to this argument is simply that the evidence showed that defendant,
in violation of statute, was driving in the opposing lane of traffic, which act endangered his
own life and the lives of others, and, in the absence of circumstances constituting an excuse,
was wrongful and unlawful. For the purposes of the preliminary examination, it was not
incumbent upon the state to negative every possible circumstance that might have excused or
explained his action. The situation is not one in which the state is drawing an unwarranted
inference. It is one in which, on the contrary, the committing magistrate was not called upon
to draw an inference that, under the proved facts, there might have been some possible
explanation or excuse for defendant's presence in the eastbound traffic lane.
Affirmed.
____________
74 Nev. 80, 80 (1958) In Re Ormsby Grand Jury
In the Matter of the Report of
ORMSBY COUNTY GRAND JURY
Appeal of WILLIAM B. BYRNE and
WILLIAM D. EMBRY
No. 4043
March 18, 1958. 322 P.2d 1099.
Appeal from First Judicial District Court; Frank B. Gregory, Judge.
Proceeding in the matter of a report of the grand jury wherein assemblymen sought to
expunge certain portions of a grand jury report. From an order of the lower court, which
denied the petition, the assemblymen appealed. The attorney general as amicus curiae filed a
brief in support of the position of the assemblymen. The Supreme Court, Merrill, J., held that
where the grand jury was unable to indict for the alleged misconduct, it had no right to deal
with the issue of guilt or to administer censure and in making such report it should have
confined itself to finding the facts and recommendations.
Reversed and remanded with instructions that offensive portion of report be expunged.
Harry E. Claiborne, of Las Vegas, for Appellants.
Cameron M. Batjer, District Attorney of Ormsby County and William D. Crowell, of
Carson City, for Ormsby County Grand Jury.
Harvey Dickerson, Attorney General, of Carson City, amicus curiae.
1. Grand Jury.
A presentment of a public offense by the grand jury, contemplates a trial and not merely notice to the
offender. NRS 172.220, 172.230.
2. Grand Jury.
A grand jury has power to report the results of investigations in matters affecting the moral health and
general welfare of the people and its reportorial power upon public affairs is co-extensive with its
inquisitorial power, and such power carries with it the power to err and to injure by factual error, but the
grand jury has no power where the law is silent, to declare certain acts to be public offenses
through the fixing of standards in accordance with ethical or moral views.
declare certain acts to be public offenses through the fixing of standards in accordance with ethical or
moral views. NRS 172.220, 172.230.
3. Grand Jury.
Where grand jury undertook to investigate office of surveyor general and in its conclusions it found
assemblymen, in respect to land purchases, guilty of conduct improper in a state officer and report
contained conclusion that assemblymen had violated moral obligations of their offices and that their action
was reprehensible and a complete disregard of their public trust and public welfare and entailed an
unconscionable disregard of moral obligations and was condemned since grand jury was unable to indict
for alleged misconduct, it had no right to deal with issue of guilt or to administer censure, and in making
such report, it should have confined itself to finding the facts and recommendations and matter of
condemnation should be expunged. NRS 172.220, 172.230, 172.300.
4. Grand Jury.
Where grand jury was investigating the office of surveyor general with respect to land purchases in which
certain state officers or their families participated including assemblymen, paragraph of report that
assemblyman was well aware that he had purchased land used by and necessary to the Industrial School
and that he and his wife had materially benefited at the expense of the state and the public interest were
matters of fact rather than opinion and should not be expunged. NRS 172.220, 172.230, 172.300.
OPINION
Appellants are assemblymen from Clark County. By this proceeding they seek to expunge
certain portions of a grand jury report. This appeal is taken from order of the court below
denying the petition to expunge. The attorney general as amicus curiae has filed a brief in
support of the position of appellants.
In 1956 the grand jury of Ormsby County (which includes Carson City, the state capital)
undertook an investigation of the state office of surveyor general. Its report was filed June 20,
1956, with the district judge of the first judicial district which includes Ormsby County. The
report was received and the grand jury discharged. This proceeding was then brought in the
district court. The report is divided into four parts.
1. Background, in which the state land laws and statutory procedures for private
acquisition of public lands are discussed and the reasons for recent activities in land
purchases are set forth.
2. Findings, in which are set forth the facts relating to land purchases through the office
of surveyor general in which certain state officers or members of their families participated.
Among the transactions so factually recited are the participation of appellants, as members of
the state legislature from Clark County, in legislation affecting sales of public lands; and the
purchase of public land by appellant Byrne and his wife, in which purchase appellant Embry
had assisted, anticipating compensation for his services. The land involved, at the time of
purchase and for some time prior thereto, had been placed under use by the state in
connection with its industrial school of correction for boys. Through oversight state title had
not been perfected and the land had not been withdrawn from public sale.
3. Conclusions, in which the grand jury in effect finds appellants guilty of conduct
improper in a state officer and proceeds to administer censure. This portion of the report
includes statements to the effect that appellants have violated the moral obligation of their
oath, office, or position; that their action was most reprehensible and evidence of a
complete disregard of their public trust and the public welfare, entailed unconscionable
disregard of moral obligation and was hereby condemned.
4. Recommendations, by which further study of the problems of land sales is referred to
the legislature; legal action is suggested to determine the respective rights of the state and the
Byrnes to the industrial school land; and impeachment proceedings against the surveyor
general are recommended to the legislature.
As to inquisitorial powers of the grand jury NRS 172.300 provides in part, 1. The grand
jury must inquire * * * (c) into the willful and corrupt misconduct in office of public officers
of every description within the county. 2. The grand jury may inquire into any and all
matters affecting the morals, health and general welfare of the inhabitants of the county,
* * *."
any and all matters affecting the morals, health and general welfare of the inhabitants of the
county, * * *.
No issue is raised upon this appeal as to the authority of the Ormsby County grand jury,
under this statute, to investigate the conduct of a state officer located within the county.
Appellants do not seek to expunge the entire report. Their attack is directed to the
Conclusions. The final conclusion reads, That we have no present criminal recourse in any
of the transactions herein reported. Appellants contend, since the grand jury was unable to
indict, that it had no right to deal with the issue of guilt or to administer censure and that in
making report it should have confined itself to its findings of fact and recommendations.
The overwhelming weight of authority is to this effect. The principle is that a man should
not be made subject to quasi-official accusation of misconduct which he cannot answer in an
authoritative forum; that in making such accusation the grand jury is exceeding its reportorial
function and is proceeding to impose the punishment of reprimand based upon secret ex parte
proceedings in which the person punished has not been afforded the opportunity of formal
open defense. State Ex Rel. Brautigam v. Interim Report of Grand Jury, Fla., 93 So.2d 99; Ex
Parte Burns, 261 Ala. 217, 73 So.2d 912; Shoemaker v. State, 123 Utah 458, 260 P.2d 521;
State Ex Rel. Strong v. District Court, 216 Minn. 345, 12 N.W.2d 776; State v. Bramlett, 166
S.C. 323, 164 S.E. 873; In Re Grand Jury Report, 204 Wis. 409, 235 N.W. 789; In Re Report
of Grand Jury, 152 Md. 616, 137 A. 370; See: Jones v. District Court, 41 Nev. 523, 173 P.
885-888; Ex Parte Faulkner, 221 Ark. 37, 251 S.W.2d 822; Dession & Cohen, Inquisitorial
Functions of Grand Juries, 41 Yale Law Journal 687, 705.
In support of the conclusions of the grand jury report the strongest case presented is In
Re Presentment by Camden County Grand Jury, 10 N.J. 23, 89 A.2d 416. In that case the
grand jury had investigated jail conditions and irregularities in the practices of jail officials. A
lengthy report was filed which contained charges that the sheriff "had failed miserably in his
public trust" and merited "the strongest kind of moral indictment.
sheriff had failed miserably in his public trust and merited the strongest kind of moral
indictment. Moral only because the laws of the state fail to define clearly his chargeable
responsibilities and fix legal penalties * * *. Denial of a motion to expunge was upheld by
the New Jersey Supreme Court. It first held that the report of the grand jury was in truth a
presentment. It noted that grand jury reports are unknown to New Jersey law. In large part
the opinion by Chief Justice Vanderbilt constitutes a scholarly examination into the nature of
the grand jury presentment as known to New Jersey law. It concludes that the New Jersey
presentment of today is a presentment as to public affairs: a type of presentment which
differs from the obsolete criminal presentment in that it does not lead to a trial but merely to
a notice to the offender. 89 A.2d 423.
[Headnote 1]
That case is distinguishable for the reason that the laws of this state differ from those of
New Jersey. Here the grand jury reports upon matters of public affairs. Presentment is
expressly perpetuated with reference to public offenses and otherwise receives no statutory
recognition. NRS 172.220 provides, The grand jury must inquire into all public offenses
committed and triable within the jurisdiction of the court, and present them to the court,
either by presentment or indictment. NRS 172.230 provides, A presentment is an informal
statement in writing, by the grand jury, representing to the court that a public offense has been
committed, which is triable within the district, and that there is reasonable ground for
believing that a particular individual, named or described, has committed it. (Italics supplied
in both sections.) Under Nevada law a presentment of public offense contemplates trial and
not merely notice to the offender.
In support of the grand jury report it is pointed out, by counsel for the grand jury, that
under Nevada law the grand jury function is not confined to matters of crime; that its
inquisitorial concern is with all matters affecting the morals, health and general welfare of
the people.
people. Parus v. District Court, 42 Nev. 229, 239, 174 P. 706, 709, 4 A.L.R. 140 is cited,
where 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 the community, are matters of
proper inquiry for our modern grand jury. Contending for a corresponding power to report,
counsel refer to Jones v. People, 101 App.Div. 55, 92 N.Y.S. 275, 276, 22 A.L.R. 1356,
where it is stated, We may assume that these powers are conferred for some purpose.
Official inquiry intends either official action or official report.
[Headnote 2]
There is no question here, however, as to limits upon the inquisitorial powers of the
Nevada grand jury in matters affecting the morals, health and general welfare of the people.
Nor can it be doubted that there is power to report the results of such investigations and that
the grand jury's reportorial power, in the interest of an enlightened public, is, upon public
affairs, coextensive with its inquisitorial power. Likewise it must be recognized that the
power to report carries with it the power to err and to injure by factual error. In this respect
the authority of grand juries in this state is greater than is the case in many other states.
There are limits to its reportorial power, however. Such power to report upon public
affairs must be distinguished from the power to accuse of public offense, which by statute is
accomplished by indictment or presentment. The grand jury has no power, where the law is
silent, to declare certain acts to be public offenses through the fixing of standards in
accordance with its ethical or moral views.
It is one thing to find that official acts, omissions or practices, although not expressly
forbidden by law, are opposed to the public interest and should not continue.
It is quite another thing to adjudge such conduct to be morally wrong or to be misconduct
which is censurable or actionable. In State Ex Rel. Brautigam v. Interim Report of Grand
Jury, Fla., 93 S.2d 99, 103, it is said, If in the course of their investigation of general public
affairs they [grand juries] find that neglect or ineptitude is responsible for an undesirable
condition, the public welfare dictates that they may make their report even though it
incidentally points to an official or officials as responsible therefor. But, as stated in In Re
Report of Grand Jury, Utah 1953, 260 P.2d 521, 527, While much good can result from a
grand jury calling attention to conditions which they find to be in need of remedying, when
the report goes further and impugns the motives and conduct of public officials, the
possibility of damaging the reputation of blameless public officials overshadows the good
which might result from the filing of such a report.'
The fact must be recognized that the closed-door processes of grand juries are not designed
to permit a final determination to be fairly and justly reached in those areas where the rights
of persons or the issue of wrongdoing may be involved. Those are areas where the open,
adversary process of justice is the Anglo-American tradition. Any power of judgment which
the grand jury may possess is essentially tentative. In matters of public offense it is
contemplated that a public trial be had in order that the truth may be justly ascertained. Even
in matters of public affairs it is contemplated that a testing of the merits of findings and
recommendations be had by some authoritative agency or by public opinion. The grand jury
has no power itself to carry out its recommendations.
[Headnote 3]
In our view this imposes no undue limits upon grand jury authority to inquire and report in
the public interest. We seek an enlightened public in matters of public affairs, in the
administration of public offices and the business of government. The grand jury's power of
factual enlightenment remains unimpaired, as does its usefulness through its ability to draw
upon the experience of its members in making recommendations in the public interest.
usefulness through its ability to draw upon the experience of its members in making
recommendations in the public interest. It is not its function, however, to enlighten the public
as to the moral or ethical standards of the day. If public enlightenment upon such matters be
needed it must be sought from other sources. Nor is there grand jury authority to render final
judgment of personal wrongdoing or to administer upon a person the sentence of
condemnation or censure.
[Headnote 4]
The motion to expunge should have been granted. As offensive portions of the report
appellants have specified paragraphs 10 through 22 of Conclusions. The first sentence of
paragraph 16 reads, That Mr. Byrne was well aware in the summer of 1955 that he had
purchased land used by and necessary to the industrial school. Paragraph 17 reads, That Mr.
and Mrs. Byrne have materially benefitted at the expense of the state and the public interest.
These are matters of fact rather than of opinion or conclusion and properly belong in the
Findings portion of the report (which, we again note, this court is not reviewing and with
the truth of which we are not concerned). As such, the quoted factual statements should not
be expunged. The remaining matter specified by appellants should be expunged.
Reversed and remanded with instructions that the conclusions of the grand jury specified
in the paragraph next above be expunged from its report.
____________
74 Nev. 88, 88 (1958) Garland v. Greenspan
JANET LOUISE GARLAND and DALE GARLAND, Her Husband, Appellants, v.
BURTON GREENSPAN and RUTH GREENSPAN, His Wife, Respondents.
No. 4047
March 20, 1958. 323 P.2d 27
Department No. 3.
Action by automobile guest and her husband against driver of automobile and her husband
for personal injuries resulting from automobile upset. The trial court entered a judgment for
defendant, and the plaintiffs appealed. The Supreme Court, Eather, J., held that evidence that
defendant's automobile shortly before upsetting had passed another automobile at speed in
excess of 65 miles an hour and in returning to right hand lane in course of negotiating a curve
to right, defendant driver for some unexplained reason lost control of automobile and it
turned over several times, did not establish as a matter of law that defendant driver was guilty
of gross negligence or willful misconduct.
Ralph Morgali, of Las Vegas, for Appellants.
Clarence Sundean, of Las Vegas, for Respondents.
1. Automobiles.
Evidence that defendants' automobile shortly before upsetting had passed another automobile at speed in
excess of 65 miles an hour, and in returning to righthand lane, in course of negotiating a curve to right,
defendant driver for some unexplained reason lost control of automobile and it turned over several times,
did not establish as matter of law that defendant driver was guilty of gross negligence or willful
misconduct, so as to authorize guest to recover for injuries sustained in the accident.
2. Automobiles.
Doctrine of res ipsa loquitur could not supply an inference of gross negligence or willfulness on part of
automobile driver, so as to authorize guest to recover for injuries sustained in accident.
OPINION
This is an action for personal injuries resulting from an automobile upset. From judgment
for the defendants this appeal is taken by the plaintiffs.
Appellants concede that the injured party was a guest under NRS 41.180 and that recovery
is there denied save where injury was caused by intoxication, willful misconduct or gross
negligence. They contend, however, that the record demonstrates that defendants were guilty
of willful misconduct or gross negligence. The sole question upon this appeal, directed to that
contention, is whether it can be said that such misconduct or negligence has been so clearly
established that the minds of reasonable men could not differ upon the issue and that gross
negligence or willful misconduct may be said to have been established as a matter of law.
The accident occurred in Clark County, Nevada. The injuries were sustained by appellant
Janet Garland who at the time was the guest of defendant Ruth Greenspan. Mrs. Greenspan
was driving an automobile owned by herself and her husband. It was one of six Volkswagens
which, in caravan, were making a pleasure trip from Las Vegas to Death Valley. At the point
of upset the highway, a 2-lane hardtop road, makes a curve to the right. No unusual hazards
were presented and the road was free of oncoming traffic.
Occupants of three of the other Volkswagens testified as eyewitnesses. The details of the
manner in which the accident occurred and the speed at which Mrs. Greenspan was driving
are in dispute. The findings of the trial court (sitting without jury), are in accordance with the
testimony given by an occupant of the car immediately behind the Greenspan car who was
called as a witness by the appellants.
The court found, that while the said Ruth Greenspan was driving said automobile on
Highway 93, traveling in a northwesterly direction from Las Vegas, Nevada, at a place
approximately 60 to 70 miles from Las Vegas, her car passed the automobile in which
Bonnie Wagner was riding with her husband, and at that time the Wagner automobile
was traveling at approximately 65 miles per hour; that shortly after its passing the
Wagner automobile, the automobile of the defendants swerved to the left of the highway
and then to the right, and then hit the right shoulder of the highway, following which it
turned over several times, throwing the plaintiff, Janet Garland, out of the car."
at a place approximately 60 to 70 miles from Las Vegas, her car passed the automobile in
which Bonnie Wagner was riding with her husband, and at that time the Wagner automobile
was traveling at approximately 65 miles per hour; that shortly after its passing the Wagner
automobile, the automobile of the defendants swerved to the left of the highway and then to
the right, and then hit the right shoulder of the highway, following which it turned over
several times, throwing the plaintiff, Janet Garland, out of the car.
[Headnote 1]
It would thus appear from the facts as found that after passing the Wagner automobile at a
speed in excess of 65 miles an hour and in returning to the right-hand lane in the course of
negotiating a curve to the right, Mrs. Greenspan for some unexplained reason lost control of
her car. We are unable to agree with appellants that these facts establish gross negligence or
willful misconduct so conclusively that reasonable men could come to no other conclusion.
[Headnote 2]
Appellants contend that the doctrine of res ipsa loquitur provides a supporting inference of
negligence under the circumstances. They have cited us no authority to the effect that that
doctrine can supply an inference of gross negligence or willfulness.
Appellants contend that gross negligence appears from the proof of three facts in
combination: (1) that Mrs. Greenspan was driving at approximately 80 miles an hour at the
time of the accident; (2) that she was an inexperienced driver; (3) that Mrs. Garland had
expressed fear at the speed at which Mrs. Greenspan was driving and had requested that Mrs.
Greenspan either slow down or let Mrs. Garland out to continue the trip in another car. Even
assuming the evidence to be as appellants contend, there might still be question as to whether
gross negligence or willfulness as a matter of law can be said to have been established. This
question we need not decide.
we need not decide. Upon all three points the evidence is in dispute and the trial court has not
found in accordance with appellants' contentions.
____________
74 Nev. 91, 91 (1958) Citizens Bank of Nevada v. Robison
CITIZENS BANK OF NEVADA, a Nevada Corporation, Petitioner, v. GRANT L.
ROBISON, Superintendent of Banks of the State of Nevada, THE STATE BOARD OF
FINANCE OF THE STATE OF NEVADA and CHARLES H. RUSSELL, PETER J.
MERIALDO, DAN FRANKS, CHARLES H. JONES and M. A. DISKIN, Members of the
State Board of Finance, Respondents.
No. 3994
March 28, 1958. 323 P.2d 705.
Original proceeding in certiorari to review order of State Board of Finance denying a
banking license.
The Supreme Court, Badt, C. J., held that the evidence supported order denying
corporation a license to transact banking business in state on ground that main organizer of
corporation and men named as directors were not of type to inspire confidence from public in
operation of bank.
Order affirmed.
H. Dale Murphy, of Reno, for Petitioner.
Harvey Dickerson, Attorney General, Carson City, for Respondents.
1. Trial.
In proceeding before Superintendent of Banks respecting application of corporation for license to
conduct banking business within state, fact that before hearing it was definitely made known that
hearsay would be received and objections to evidence on such ground would not be
sustained, applicant could not be said to have waived objection to evidence as
hearsay merely because it was not repeatedly asserted.
made known that hearsay would be received and objections to evidence on such ground would not be
sustained, applicant could not be said to have waived objection to evidence as hearsay merely because it
was not repeatedly asserted.
2. Banks and Banking.
In proceeding to review action of State Board of Finance approving action of Superintendent of Banks in
denying application of corporation for licence to conduct banking business within state, there was
substantial evidence supporting order denying license on ground that main organizer as well as men named
as directors of corporation were not such as to inspire confidence from the public in operation of bank.
NRS 659.050, subd. 2 (d), 659.060, subd. 2.
OPINION
Petition for a writ of review to review the action of the State Board of Finance of the State
of Nevada, which approved the action of the superintendent of banks denying the application
of the petitioner herein for a license to conduct a banking business within the state. The board
denied the application (1) because Henry Girola, as the main organizer of applicant, by reason
of his financial dealings in connection with customers and stockholders of American Credit
Corporation and Bankers Trust Company, had conducted the affairs of those corporations in a
manner reflecting on his business ability and on his intention to carry out his promises with
individuals in connection with the sale of securities to them, and particularly because his
failure to carry out such promises was not one to inspire confidence, NRS 659.050, 2(d); (2)
because the men named as directors of petitioner have not sufficient knowledge of the
operation of a bank to inspire confidence from the public in the operation of such bank, id.;
(3) because a total of five banks operating in the city of Reno adequately served the public, id.
(f); and (4) because of the situation under which the president and manager of the proposed
bank demanded and was given a guaranty by the stockholders of a 5-year employment at a
salary of not less than $15,000 per year. The ground most seriously advanced, however,
was the first one above-mentioned, and the one that occupied most of the record in the
hearing before the State Board of Finance.
ground most seriously advanced, however, was the first one above-mentioned, and the one
that occupied most of the record in the hearing before the State Board of Finance.
Petitioner, while conceding the rule that such boards are not bound by the strict rules of
evidence and may accept hearsay testimony, insists that the board's ruling may stand only if
supported by substantial evidence, and that this may not be supplied by hearsay alone,
citing 42 Am.Jur. 467, Public Administrative Review, sec. 132. It insists that if we delete the
evidence of a hearsay nature there is a lack of any substantial evidence upon which the board
could have predicated its findings. We may concede for the purpose of this review that if the
record contained nothing but hearsay evidence, the contention that it lacked sufficient
substance to support the order might be sustained. Indeed a very large proportion of the
evidence adduced consists of letters written by individuals to the superintendent of banks
complaining of the actions of Girola in the sale of common stock, preferred stock and bonds
of American Credit Corporation and Bankers Trust Company. This promotes the thought that
as the persons writing these letters were all residents of the state, it should have been a
comparatively simple matter to produce at least a few of them as witnesses and to take the
depositions of others. This, counsel for the board apparently considered either unnecessary or
inexpedient.
[Headnote 1]
The letters referred to were from a large number of persons complaining that Girola had
sold them stock and bonds amounting to many thousands of dollars with the assurance that he
would at any time on 90 days' notice (in some cases 60 days and in some 30 days) pay them
back their money for their stock or bonds and that they would receive regular dividends; that
when they requested their money they were put off in various ways; that after a time Girola
failed even to acknowledge receipt of repeated letters from them. Other letters from
responsible attorneys in the state were to the effect that numerous clients had written them
letters of a similar nature.
that numerous clients had written them letters of a similar nature. One letter from a banker
was to like effect. Two such letters were in the form of affidavits. These letters require no
further detailed discussion as to content. All are definitely classifiable as hearsay.
Respondents vehemently insist that these letters were received without objection and must
therefore be given full evidentiary weight and such recognition of substance as if the writers
had personally appeared and testified. With this contention we are unable to agree. The
chairman of the board made it definitely known to the petitioner at the commencement of the
hearing that hearsay would be received and that objections to the evidence on such ground
would not be sustained. Petitioner cannot be said to have waived his objection simply because
it was not repeatedly asserted.
We turn then to the record to see if it contains substantial evidence as to the unfitness of
Girola to inspire confidence in his role as organizer of the bank and the owner of 42.6 percent
of its stock.
Grant L. Robison, state superintendent of banks, testified concerning his audit of the books
of the American Credit Corporation (controlled and managed by Girola) and particularly its
balance sheet as of January 31, 1952. This corporation was at the time subject to supervision
of the superintendent of banks. Mr. Robison submitted a balance sheet as of January 31, 1952
as recast by his department. The statement as made by the corporation showed a surplus of
$73,590.02. Mr. Robison testified that he had eliminated a number of items which he
considered were worthless assets. The result was, not a surplus in any sum, but a capital
impairment of $244,455.25. He testified in detail as to each item that he had eliminated. He
struck out an item of $113,058.68 in bad loans, as well as $44,245.64 accrued interest on
these loans, which had never been collected, although in arrears for long periods of time. He
struck out an item of $17,404.64 expenses incurred over a period of years for collection of
accounts, repossession expenses and attorney fees; also $4,500 good will and $27,092.56
organization expense and $96,386 commission on sale of stock which had been entered as
capital stock expenses and had been so carried as an asset for many years.
of stock which had been entered as capital stock expenses and had been so carried as an asset
for many years. The superintendent of banks further testified: Further briefing the records,
you get that the Bankers Trust Company, which is owned by Mr. Girola, owes the American
Credit Corporation nearly $300,000. We were refused a financial statement of the Bankers
Trust Company, but on the basis of oral information given to us, we are inclined to doubt the
solvency of this company and their ability to completely liquidate the loan of the American
Credit Corporation. It is unnecessary to cite further details of his testimony, which, however,
reveal a complete examination of the assets, from which items were stricken in the Elko
office, the Ely office, the Las Vegas office and the Reno office. He reported this with
reference to the statement furnished by Mr. Girola to the stockholders of American Credit
Corporation which was not factual and which was concealing the true condition. With
reference to the statement contained in petitioner's application for a banking license as to
anticipated income and expense during the first year of operation, Mr. Robison testified that
the same was rather fantastic and the proposed salaries of the officers are so far out of line
that it raises suspicion that the bank would be operated for the benefit of the promoters rather
than for the stockholders and the good of the community.
The superintendent of banks further offered in evidence what appears to be a photostat
copy of a certified copy of a judgment of the District Court of the United States for the
Northern District of the California Southern Division in the case of the United States v.
Henry Girola, adjudging the defendant guilty upon the verdict of a jury on a charge of
violation of the federal internal revenue act with a judgment of imprisonment in a county jail
for one year with $273.50 costs. The defendant was placed on probation. The record included
photostat copies of the grand jury's indictment and other papers. The petitioner contends that
the proceedings in the federal court showed no act of Girola involving moral turpitude but
simply a dispute between Girola and the internal revenue department as to whether a
claimed deduction of some $21,000 loss from sale of securities was a proper deduction.
and the internal revenue department as to whether a claimed deduction of some $21,000 loss
from sale of securities was a proper deduction. We shall not enter into a discussion of this
question. The board was entitled to take this matter, among others, into consideration. The
testimony of the superintendent of banks as to Girola's operation of American Credit
Corporation, and the evidence of Girola's conviction both constituted substantial evidence.
The superintendent of banks further offered in evidence a photostat copy of a report of the
auditor of the Securities Exchange Commission, addressed to the assistant commissioner of
the Los Angeles office of the Securities Exchange Commission, with reference to the
application of Consumers Discount Company for the sale of its stock. This report contains 11
pages of single-spaced typewriting and contains a chart indicating the organization of the
Girola companies which should give a visual picture of the various corporations in the group
controlled by Henry Girola and associates. These companies include Italian Bond & Share
Corporation, Continental Credit Company, Girola Bros., Italian-American Securities
Corporation, Italian Investment Corporation, Italian National Building & Loan Association,
Newcastle Building & Loan Association, State Building & Loan Association and other
building and loan associations. These are characterized in various ways, such as securities
and brokerage, finance company, parent and holding company etc. Other companies
named are Continental Seaboard Corporation, Seaboard Equities Inc., Reserve Building &
Loan Association etc. The report discusses these various corporations in detail. A few of the
findings may be noted. A consolidated statement of Italian Investment Corporation and
certain subsidiaries which showed a surplus resulted upon examination in a deficit of
$169,559.85. It continued to sell its shares to the public through 1930, but permission to sell
further shares was suspended for failure to file proper reports despite repeated requests for
additional information. The permit of the Italian Bond & Share Corporation was suspended in
1931 on account of "manipulation of securities and particularly the execution of a contract
with Italian Investment Corporation and other affiliated companies by which Italian Bond
& Share Corporation would purchase the shares of those [companies] at advantageous
prices and subsequently resell these securities at prices not warranted by the facts."
manipulation of securities and particularly the execution of a contract with Italian
Investment Corporation and other affiliated companies by which Italian Bond & Share
Corporation would purchase the shares of those [companies] at advantageous prices and
subsequently resell these securities at prices not warranted by the facts.
The report continues: After the suspension of the permits of Italian Investment
Corporation, various attempts were made by the Girolas to obtain authority from this division
to sell and issue shares to the public * * * [T]he Girolas apparently believed that a permit
might entitle them to raise more capital from the public * * *. These included the
Continental Seaboard Corporation to take the place of Italian Investment Corporation as the
parent company; Seaboard Equities Inc. as a subholding corporation; Continental Share
Corporation Ltd., the brokerage company for the new group; and Continental Credit
Corporation as the operating finance corporation of the group. An involuntary petition in
bankruptcy was filed against Continental Seaboard Corporation and a voluntary petition in
bankruptcy by Seaboard Equities Inc. in June 1932. Salaries and expense accounts were
drawn by the Girolas from 1929 to 1932, inclusive, in excess of $100,000. Consumers
Discount Company was organized in November 1932 after the collapse of the Continental
Seaboard Corporation and its subsequent bankruptcy.
When this record was offered in evidence an objection was made as follows: We object
to that because it is not related to inspiring confidence of the people in Nevada at all. Mr.
Robison stated: * * * my purpose in bringing out all of this is to show the type of operator
Mr. Girola has been for many, many years and certainly not the type who should be in the
banking business * * *. The relevancy and materiality of this evidence is apparent on the
issue under the statutory requirement that the personnel of the organizers of the corporation
be such as to inspire confidence. It may be contended that this report is hearsay, a contention
which we need not determine. However, it was an official report of findings based on an
examination by federal officials investigating the qualifications of Girola's corporation to
sell its stock to the public.
of findings based on an examination by federal officials investigating the qualifications of
Girola's corporation to sell its stock to the public. In this respect see Third National Bank &
Trust Co. v. United States, C.C.A. 6th Circuit, 53 F.2d 599. In any event, whether hearsay or
not, the report was properly admitted in evidence.
As to the objection that the evidence is not related to inspiring confidence of the people in
Nevada, we do not consider the distinction material. Even if reputation could be said not to
follow a person across a state line, the character would remain with the person no matter how
many state lines were crossed. We think that the statutory requirement that the personnel of
the organizers be such as to inspire confidence was a broad requirement for character rather
than for reputation.
The original articles of incorporation of Citizens Bank of Nevada named Henry Girola as
president. In the amended articles he does not appear as president or as a director. Petitioner
contends that the objections of the superintendent of banks and the State Board of Finance to
the character and operations of Henry Girola personally are objections to him as a
stockholder, owning 42.6 percent of the stock of the proposed bank, and that objections to a
stockholder are not within the purview of the statute. It is true that the superintendent of
banks noted: * * * Mr. Henry Girola is listed as the owner of stock in the amount of
$64,000, which is 42.6 percent of the total issued. Purchase by him of only 7.5 percent
additional stock would give him complete control. It is also true that the Board of Finance
found: That Henry Girola is one of the original incorporators of said corporation, and at the
present time is the owner of 42.6 percent of the total issued and outstanding stock; * * *.
However, the controlling finding of the board was: That under the evidence, as appears from
the record of the proceedings, the board finds that Henry Girola was and is one of the
organizers of said bank, and has participated actively in the sale of stock of said corporation,
and in directing the affairs of said bank."
bank. Such finding was apparently made under the provisions of NRS 659.060, 2, under
which the inquiry of the board is directed to whether the superintendent of banks was in error
in his reasons for refusing a certificate. Under 659.050, 2(d), the superintendent of banks shall
issue the certificate if he is satisfied, among other things, that The personnel of its
organizers and officers and directors is such as to inspire confidence. (Emphasis supplied.)
There is ample support of the board's finding that Girola was an organizer.
Petitioner's allegation that respondents, in denying petitioner a certificate, acted in an
arbitrary, unreasonable and capricious fashion is not supported by the record.
[Headnote 2]
Being of the opinion that the record contains substantial support of the board's order
affirming the order of the superintendent of banks denying to petitioner a certificate to
transact a banking business in the State of Nevada, and substantial support for its conclusion
that the superintendent of banks was not in error in his said reason for such refusal, as herein
discussed, NRS 659.060, subd. 2, it becomes unnecessary to pass upon the other reasons
assigned for his action.
The order of the board is affirmed.
____________
74 Nev. 100, 100 (1958) Choate v. Ransom
JOHN C. CHOATE and BRUCE HUTCHESON, Appellants, v. RICHARD RANSOM
and LaRHEE RANSOM, Respondents.
No. 4054
March 31, 1958. 323 P.2d 700.
Action for injuries sustained in an automobile collision. From a judgment of the trial court
in favor of the plaintiffs, the defendants appealed. The Supreme Court, Merrill, J., held, inter
alia, that where husband and wife, whose matrimonial domicile was Idaho, were involved in
an automobile collision in Nevada, any recovery by wife would be community property under
Idaho law and hence husband's contributory negligence was imputed to wife and barred her
right to recover for the community.
Reversed.
Vargas, Dillon and Bartlett and Alexander A. Garroway, of Reno, for Appellants.
Grubic, Drendel and Bradley, of Reno, and Jon R. Collins, of Ely, for Respondents.
Negligence.
A recovery by a married person for personal injuries is the separate property of that person, being
compensation for injury to person which arises from violation of right of personal security, which right the
wife brings to the marriage, and hence contributory negligence of husband cannot be imputed to wife.
2. Negligence.
Where recovery of a married person for personal injuries is community property, contributory negligence
of spouse is imputable to injured person, and where such recovery is separate property of injured person,
contributory negligence of spouse is not imputable, and hence whether contributory negligence is or is not
imputable must depend in each case upon nature of property as community or separate property.
3. Negligence.
The fact that injury to Idaho residents in automobile collision occurred in Nevada did not establish nature
of recovery as separate property in accordance with laws of Nevada so as not to make
husband's contributory negligence imputable to wife, since nature of rights of
married persons in personal property acquired during marriage is determined by laws
of state which is the matrimonial domicile of parties at time property is acquired.
as separate property in accordance with laws of Nevada so as not to make husband's contributory
negligence imputable to wife, since nature of rights of married persons in personal property acquired
during marriage is determined by laws of state which is the matrimonial domicile of parties at time property
is acquired.
4. Negligence.
Where husband and wife whose automobile was involved in collision in Nevada were domiciled in Idaho,
court must look to law of Idaho to determine whether wife's right of recovery is community or separate
property, in determining whether husband's contributory negligence was imputable to wife.
5. Trial.
At common law, foreign law was a question of fact and as such its existence was to be determined by
jury, and in absence of statute such has generally been the holding in the United States and the rule has
been applied to laws of other states as well as to laws of foreign countries.
6. Trial.
That certain language has been incorporated into a statutory enactment or authoritative court opinion may
be a fact, but legal significance of that language involves a question of law, and hence determination of
state of the law in a foreign jurisdiction remains essentially a question for judge rather than for jury, so that
if facts necessary to determination are to be presented to the trial court, such presentation should be made
to judge and need not be made to jury.
7. Statutes.
Where following the close of testimony in action for injuries to wife in automobile collision, defendants'
counsel presented to trial judge nature of Idaho law according to which husband's contributory negligence
was to be imputed to wife, with contention that Idaho law should be applied to the case, no objection was
made to presentation of the foreign law, and there was no request for opportunity to refute defendants'
presentation, any deficiency in pleading of foreign law was cured by subsequent trial proceedings. Rules of
Civil Procedure, rule 15(b).
8. Evidence.
The statute and reported court opinions of a sister state are a proper subject for judicial notice.
9. Evidence.
In process of judicial notice judge may seek sources of information to assist him, and in such process
counsel on either side are entitled to offer materials containing the information and though judge may or
may not rely upon them or use them, and judge may request such assistance from counsel, and for lack of
such assistance, he may decline to notice the desired fact.
10. Evidence.
Where defendants' counsel, prior to submission of case, directed judge's attention to statute law of Idaho,
according to which contributory negligence of husband was imputable to wife in automobile collision in
Nevada, and later in argument upon instructions, reference was made to case law of Idaho,
the law of Idaho was properly before the trial court and was before the Supreme
Court on appeal notwithstanding counsel did not formally request that judge take
judicial notice of Idaho law, which might have been the better procedure.
upon instructions, reference was made to case law of Idaho, the law of Idaho was properly before the trial
court and was before the Supreme Court on appeal notwithstanding counsel did not formally request that
judge take judicial notice of Idaho law, which might have been the better procedure.
11. Husband and Wife.
Under Idaho law a wife's recovery for personal injuries is community property.
Negligence.
Where husband and wife whose matrimonial domicile was Idaho, were involved in automobile collision
in Nevada, any recovery by wife would be community property under Idaho law and hence husband's
contributory negligence was imputed to wife and barred her right to recover for the community.
OPINION
Upon this appeal we are concerned with the conditions under which a husband's
contributory negligence will be imputed to his wife. The action was brought by respondents
as plaintiffs below for injuries resulting from an automobile collision which occurred about
45 miles west of Ely, Nevada, on November 15, 1955. The road was icy and was posted for
chains. Respondents, eastbound in an automobile which was towing a house trailer, stopped
on an upgrade to repair a tire chain. Appellants, eastbound in an automobile which was
towing a jeep, attempted to pass. They had not put on chains and were unsuccessful. Between
the two cars the road was blocked. A truck, westbound, was unable to stop on the downgrade
and collided with respondents' car, causing damage to the car and trailer and personal injuries
to LaRhee Ransom. This action was brought in Washoe County against appellants and the
truck operators.
Respondents are husband and wife and at the time of the accident were residents of Idaho.
The defense of contributory negligence was asserted by the defendants. Following trial the
jury verdict specifically found that appellants were guilty of negligence, that respondent
Richard Ransom was guilty of contributory negligence, that the operators of the truck
were not guilty of negligence and that respondent LaRhee Ransom was not guilty of
contributory negligence.
that appellants were guilty of negligence, that respondent Richard Ransom was guilty of
contributory negligence, that the operators of the truck were not guilty of negligence and that
respondent LaRhee Ransom was not guilty of contributory negligence. The verdict awarded
LaRhee Ransom damages against these appellants in the sum of $5,706.61. From judgment to
that effect this appeal is taken.
Appellants contend that the law of Idaho, the state of domicile, must control as to the
nature (as community or separate property) of Mrs. Ransom's right to recovery; that under
Idaho law such right and any recovery under it are community property; that under these
circumstances the contributory negligence of the husband must be imputed to the wife and
bar her from recovery.
In opposition respondents contend (1) that Idaho law is not material to the case and that
under Nevada law the contributory negligence of the husband is not imputable to the wife; (2)
that in any event Idaho law is not properly before this court in that it has not been established
as an issue or proven as a fact.
With reference to the imputation of contributory negligence the rule generally followed in
community property states has been set forth in Caldwell v. Odisio, 142 Cal.App.2d 732, 299
P.2d 14, 16 as follows, The cases * * * hold that the negligence of one spouse, which
proximately contributes to an injury to the other, is imputable to the latter in a suit for
damages and, if proven, bars a recovery. The reason, and the only reason, for this rule is that
to permit a recovery in which the negligent spouse would have a community interest would
violate the rule that one may not profit through his own wrong. In Bruton v. Villoria, 138
Cal.App.2d 642, 292 P.2d 638, 640 the same reason for the rule is given and there the court
further points out, The cases recognize that if the husband has no interest in the recovery
there is no reason for giving effect to his contributory negligence as a bar to the wife's
recovery for her own personal injuries.
[Headnote 1]
Nevada, as respondents assert, does not follow the general rule of the community property
states with reference to the imputation of contributory negligence. In F. & W. Construction
Co. v. Boyd, 60 Nev. 117, 102 P.2d 627 this court held that a recovery by a married person
for personal injuries is the separate property of that person, being compensation for an injury
to the person which arises from the violation of the right of personal security, which said right
the wife brings to the marriage. (60 Nev. 121, 102 P.2d 629.) This court then stated (60 Nev.
123, 102 P.2d 629), From what has been said, it follows that the contributory negligence of
the husband cannot be imputed to the wife in this state. (We may note that since the
Caldwell and Bruton cases, California through legislation has adopted this rule. Calif. Civil
Code, sec. 163.5; added in 1957.)
[Headnote 2]
The universal rule may, then, be stated in this manner: Where the recovery of a married
person for personal injuries is community property, the contributory negligence of the spouse
is imputable to the injured person; where such recovery is the separate property of the injured
person, contributory negligence of the spouse is not imputable. Whether contributory
negligence is or is not imputable must, then, depend in each case upon the nature of the
recovery as community or separate property.
[Headnote 3]
In the case before us the fact that the injury occurred in Nevada does not establish the
nature of the recovery as separate property in accordance with the laws of this state. The
nature of the rights of married persons in personal property acquired during marriage is
determined by the laws of that state which is the matrimonial domicile of the parties at the
time the property is acquired. See Restatement of the Law, Conflict of Laws, sec. 290. This
well-recognized rule has been specifically applied to the right of recovery for personal
injuries. In Bruton v. Villoria, supra, it is stated, Defendants contend that the law, of
plaintiff's domicile is inapplicable because her cause of action arose in California, but this
contention is exactly contrary to the settled rule.
contend that the law, of plaintiff's domicile is inapplicable because her cause of action arose
in California, but this contention is exactly contrary to the settled rule. The principle that the
law of the domicile is controlling as to the ownership of personal property necessarily
excludes from consideration the laws concerning ownership of other jurisdictions in which
the property may be acquired. To the same effect are Jaeger v. Jaeger, 262 Wis. 14, 53
N.W.2d 740; Williams v. Pope Mfg. Co., 52 La.Ann. 1417, 27 S. 851, 50 L.R.A. 816.
[Headnote 4]
Since, at the time of their accident, the Ransoms were domiciled in Idaho, we must look to
the law of that state to determine whether LaRhee Ransom's right of recovery is community
or separate property.
At this point we reach respondents' second contention: that the law of Idaho is not properly
before this court because of deficiencies of pleading and proof and that we must therefore
presume it to be similar to the law of Nevada. In considering this contention we must first
examine the nature of foreign law. Is it a matter of fact or a matter of law?
[Headnote 5]
At common law it was generally held that foreign law was a question of fact and that as
such its existence was to be determined by the jury. In the absence of statute such has
generally been the holding in this country and the rule has been applied to the laws of other
states as well as to the laws of foreign countries. See 9 Wigmore on Evidence (3d ed.), sec.
2558, footnote 1, at page 525. The precise issue has never come before this court and we feel
this to be an opportune time to attempt a sensible and realistic disposition of the problem.
[Headnote 6]
That certain language has been incorporated into a statutory enactment or authoritative
court opinion may indeed be a fact. The legal significance of that language, however,
involves a question of law. A determination of the state of the law in a foreign jurisdiction
remains essentially a question for the judge rather than for the jury.
for the jury. Therefore, if facts necessary to the determination are to be presented to the trial
court, such presentation should be made to the judge and need not be made to the jury.
Saloshin v. Houle, 85 N.H. 126, 155 A. 47; Hooper v. Moore, 5 Jones L. (N.C.) 130; See
Wigmore, supra, sec. 2558. The sense of such rule is emphasized when one recognizes that
the factual aspect of such determination is decidedly limited and that it would be a rare case
where factual disputes upon the language of the law could not be positively resolved by the
judge.
In the case at bar it is contended by respondents that the facts were not presented to the
trial court. In the first place, it is contended, statutes and court opinions of Idaho were not
pleaded. Geller v. McCown, 64 Nev. 102, 177 P.2d 461, 178 P.2d 380, and McCown v.
Geller, 67 Nev. 54, 214 P.2d 774 are cited as authority for the rule that foreign law must be
pleaded if reliance is to be placed upon the fact that it differs from the law of Nevada. The
Geller case in both instances was before this court upon a determination of the sufficiency of
a complaint to state a cause of action. There had been no opportunity for deficiencies in
pleading to be cured by a subsequent presentation of the facts. In the instant case, following
the close of testimony, the nature of Idaho law was presented to the trial judge by appellants'
counsel with the contention that it should be made applicable to the case at bar.
Rule 15(b) NRCP 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. Such amendment of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be made upon motion of any party at
any time, even after judgment; but failure so to amend does not affect the result of the trial of
these issues.
[Headnote 7]
In this case no objection was made to the presentation of foreign law nor was any request
made for an opportunity to refute appellants' presentation. It is thus clear that any deficiency
in the pleading of foreign law was cured by subsequent trial proceedings.
that any deficiency in the pleading of foreign law was cured by subsequent trial proceedings.
In the second place, respondents contend, statutes and court opinions of Idaho were not
properly presented to the trial court in that they were not proven in accordance with the rules
of evidence.
[Headnote 8]
In our view it is time that we recognize that the statutes and reported court opinions of our
sister states are a proper subject for judicial notice. Some states have apparently found it
difficult to reach this conclusion. With reference to their troubles Dean Wigmore has bitingly
remarked, Most of the foregoing quiddities are thoroughly unpractical. The judges
manipulate an esoteric logical dream-machine which has caused them to forget the world of
reality. Judicial power should be used to get at the facts more directly and candidly. The
professional common sense, fortunately, began some time ago to revolt at the needless
expenditure of effort involved in compelling formal proof of what was in most instances
virtually indisputable. Particularly absurd was the technical insistence on treating the states of
the Union as foreign to each other. No one would demand that a court take judicial notice of
foreign systems of law in foreign languages. But the laws of other states of the Union * * *
can ordinarily be brought to a court's attention, through diligence of counsel and conciliatory
stipulation, without formal proof under the rules of evidence. Wigmore, supra, sec. 2573, at
page 558.
[Headnote 9]
With reference to the process of judicial notice generally, Dean Wigmore points out that
the judge may seek sources of information to assist him. Naturally, in this process of
consulting sources of information, counsel on either side are entitled to offer materials
containing the information; though the judge may or may not rely upon them or use them.
Moreover, the judge may request such assistance from counsel; and for lack of such
assistance, he may decline to notice the desired fact. Wigmore, supra, sec. 2568a, at page
537.
[Headnotes 10, 11]
In the court below, appellants' counsel, prior to submission of his case, directed the judge's
attention to the statute law of Idaho. Later, in argument upon instructions, reference was made
to the case law of Idaho. Counsel did not formally request that the judge take judicial notice
of Idaho law, which might have been the better procedure. However, the issue of foreign law
was timely presented for determination by the judge and information was offered; and the
record does not disclose that the matter of procedure was the subject of objection.
We conclude that the law of Idaho was properly before the trial court and is before us on
this appeal. Judicial notice discloses that the law of Idaho differs from that of Nevada upon
the nature of a recovery for personal injuries; that in Idaho such recovery is community
property. Swager v. Peterson, 49 Ida. 785, 291 P. 1049; Giffen v. Lewiston, 6 Ida. 231, 55 P.
545. See also: Lorang v. Hays, 69 Ida. 440, 209 P.2d 733; Sprouse v. Magee, 46 Ida. 622, 269
P. 993; Muir v. Pocatello, 36 Ida. 532, 212 P. 345; Labonte v. Davidson, 31 Ida. 644, 175 P.
588; Lindsay v. Oregon Short Line Ry., 13 Ida. 477, 90 P. 984, 12 L.R.A. (N.S.) 184.
[Headnote 12]
This being so, as we have heretofore discussed, any recovery by the wife in the case at bar
would be community property under the law of Idaho as the matrimonial domicil. The
negligence of the husband being a contributing cause of the injury, a recovery cannot be
permitted which would bestow upon him, through a community interest, a profit for his own
wrongful act. Accordingly, the contributory negligence of the husband is attributable to the
wife and bars her right to a recovery for the community.
Reversed and remanded with instructions that judgment for LaRhee Ransom be set aside
and that judgment be entered in favor of appellants.
____________
74 Nev. 109, 109 (1958) Stanley v. Limberys
CARLE B. STANLEY and ALYS M. STANLEY, His Wife, Appellants, v. NICK
LIMBERYS and MARCIA LIMBERYS, His Wife, Respondents.
No. 4055
April 8, 1958. 323 P.2d 925.
Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,
Department No. 2.
Purchasers' action to rescind contract for purchase of real property and to cancel
instruments of conveyance on ground of fraudulent representation of fact. The trial court
entered judgment for purchasers and vendors appealed. The Supreme Court, Eather, J., held
evidence sustained finding of fraudulent representation of vendors of apartment building that
building met structural requirements of city code even though vendors, who had a business
license, had received a letter from city engineer which stated that building did not comply
with code, but because of lack of adequate proof on issue of benefits and profits which equity
required to be restored as condition to rescission case would be remanded for new trial
limited to such issues.
Affirmed in part; Reversed in part, and remanded for limited new trial.
Ernest S. Brown and William L. Hammersmith, of Reno, for Appellants.
Sidney W. Robinson, of Reno, for Respondents.
1. Vendor and Purchaser.
In purchasers' action to rescind contract for purchase of apartment building on ground of fraudulent
representation by vendors that building complied with city code requirements, evidence sustained finding
that vendors, who had received a business license subsequent to receipt of letter by city engineer which
stated that building did not comply with code, were guilty of an affirmative misrepresentation of fact.
2. Vendor and Purchaser.
Where vendors of apartment building misrepresented to purchasers that building complied with city code,
fact that on several occasions purchasers personally inspected apartment house and spent a total of about
two hours in the process but without professional assistance, could not be held to
constitute a reliance on their own investigation as to fact that structural condition of
building met city code.
without professional assistance, could not be held to constitute a reliance on their own investigation as to
fact that structural condition of building met city code.
3. Cancellation of Instruments.
Right to rescission is not an unconditional one and plaintiff seeking rescission must restore defendant to
position he occupied before the transaction in question, and this entails a restoration of all benefits and
profits which the plaintiff may have realized from the transaction.
Where purchasers of apartment building were entitled to rescission of contract for purchase because of
fraud but had occupied building for over a year, profits required to be restored by purchasers could not be
based on highest net profits made by vendors during their period of occupancy.
In making proof of restoration or extent of obligation to restore as condition of rescission, burden is upon
plaintiff and this burden cannot be said to have been shifted to defendant until a prima facie case of
restoration has been made out by plaintiff.
Where purchasers of apartment building established the right to rescind contract for purchase for
fraudulent representation, burden was on purchasers to make a prima facie showing of profits which were
to be restored to vendors as a condition of rescission.
Where purchasers were entitled to rescind contract for purchase of apartment building because of fraud,
but failed to introduce proof as to profits to be restored to vendors as condition of rescission, case would be
remanded for a new trial which would be limited to proof of profits.
OPINION
This is an appeal from judgment granting rescission of a contract for sale of real property
and cancelling the instruments of conveyance. The action was brought by the purchasers upon
the ground of fraudulent misrepresentations of fact.
The court below sat without jury. In granting judgment it found fraud to exist. Upon this
appeal the grantors as appellants contend that the record does not support the finding of fraud
and further contend that the purchasers as plaintiffs did not sufficiently establish the nature
of the benefits received by them in order that restoration of those benefits might be
required as a condition of rescission.
the nature of the benefits received by them in order that restoration of those benefits might be
required as a condition of rescission.
[Headnote 1]
The property involved is an apartment house known as the Stewart Apartments located on
Washington Street in the city of Reno. At the time of the sale, July 15, 1953, it was being
operated by appellants under a business license issued by the city of Reno. Following sale, the
purchasers sought a city license and were refused upon the ground that the building did not
meet the requirements of the city's building code. The misrepresentation upon which the
purchasers relied was to the effect that the building was OK with the city.
Appellants first contend that this was no misrepresentation; that the record demonstrates
that, so far as they knew, it was true. They point out that they had a city license and that the
facts established by the record gave them no cause to believe that the purchasers could not
also secure a license.
The record discloses that in many respects the building failed to meet code requirements;
that it was the opinion of the city engineer that a license could not be issued under the
circumstances without disregarding the city ordinances; that such had been his opinion in
1949 and that opinion had then been expressed by him in a letter to the city council reporting
on conditions of the building and pointing out the respects in which it failed to conform to
code requirements; that a copy of that letter had been sent to the appellants.
Under these circumstances the trial court was justified in finding that the fact that a license
had been issued to appellants did not demonstrate that the building was OK with the city,
since the license was issued in disregard of code requirements.
Appellants contend that this is in effect charging them with fraud by concealment rather
than by misrepresentation and that the circumstances of this case did not place upon them any
duty to disclose the building's status in relation to the city codes. See Villalon v. Bowen, 70
Nev. 456, 273 P.2d 409. Under the circumstances of this case, however, to represent that
the building was "OK with the city" was an affirmative misrepresentation of fact.
this case, however, to represent that the building was OK with the city was an affirmative
misrepresentation of fact. Since appellants had knowledge that their license was issued in
disregard of code requirements, the trial court was justified in concluding that the
misrepresentation was not an innocent one.
[Headnote 2]
Appellants next contend that the purchasers cannot claim to have placed reliance upon this
representation for the reason that the record demonstrates that they conducted their own
investigation of the premises. The record shows that on several occasions the purchasers
personally inspected the apartment house, spending a total of about two hours in the process.
The nature of the inspection is not described in any detail, but it can hardly be contended that
in the time spent and without professional assistance the purchasers were relying upon their
own inspection as to questions of structural sufficiency. In Freeman v. Soukup, 70 Nev. 198,
209, 265 P.2d 207, 212, this court, in considering the same contention, quoted from Carpenter
v. Hamilton, 18 Cal.App.2d 69, 62 P.2d 1397, 1399, as follows: If it fairly appears from the
evidence that the buyer undertook to investigate for himself the matters as to which
representations had been made, he cannot be allowed to later claim that he acted upon the
representations, even though he voluntarily abandoned his investigation before it was
complete. (Emphasis supplied.) We do not feel that the rule applies to the case at bar. By
inspecting the premises the purchasers cannot be held to have satisfied themselves that the
structural condition of the building was such as to meet the city requirements.
We conclude that the record supports the trial court's determination that the purchasers
relied to their detriment upon fraudulent misrepresentations made by the appellants and upon
this ground are entitled to rescission. To this extent the judgment must be affirmed.
[Headnote 3]
The right to rescission, however, is not an unconditional one. Under the maxim that he
who seeks equity must do equity" the plaintiff, seeking rescission, must restore the
defendant to the position he occupied before the transaction in question.
must do equity the plaintiff, seeking rescission, must restore the defendant to the position he
occupied before the transaction in question. Such restoration entails the restoration of all
benefits and profits which the plaintiff may have realized from the transaction.
[Headnote 4]
Appellant here contends that the purchasers were in occupation of the apartment house for
a period of over a year; that they were operating it as a business property during that period of
time; that they have made no accounting of profits realized from this operation.
The trial court made a finding upon this issue to the effect that plaintiffs during their use
and occupancy of the real and personal property herein referred to have received a net profit
therefrom to the extent of $317.62 a month from July 15, 1953 to date hereof. This finding is
not supported by any proof for there is no testimony whatsoever as to the sums received by
the plaintiffs from their operation of the property. From the court's opinion it is apparent that
this finding was based upon testimony of appellants as to the net profits they had realized
during their period of occupancy. The sum of $317.62 a month was the highest net profit they
had received. The trial court stated, the court will assume for the purposes of an equitable
settlement of this matter, that plaintiffs would not receive any lesser net profit than the
highest net profit received from said business by the defendants.
This may well have been an equitable manner of arriving at a fair sum in absence of proof.
It does not meet the issue of profits actually realized, however. An inference as to one man's
profit can hardly be drawn from proof as to another's, especially in absence of proof that there
was similarity in matters of expense and maintenance.
We conclude that the court finding is without support. A finding upon this issue is
essential to equitable disposition of the case, however, and to this end a new trial is necessary.
Respondents contend that appellants cannot complain that an accounting was not had since
no accounting was sought by them in their pleadings or in the examination of witnesses
during trial.
sought by them in their pleadings or in the examination of witnesses during trial. The record
shows that in response to a request by counsel for appellants, counsel for respondents agreed
to bring in figures on profits as shown by respondent's books. Neither side followed up on
this stipulation. Respondents contend that by appellants' failure to follow up they have waived
any right to demand an accounting at this time.
[Headnotes 5-7]
This, however, is misplacing the burden of establishing profits. In making proof of
restoration or the extent of the obligation to restore, the burden is upon the plaintiff, since the
right to rescission is conditioned upon such restoration. This burden cannot be said to have
been shifted to the defendant until a prima facie case of restoration has been made out by the
plaintiff. Until proof of profits was offered by respondents it cannot be said that a prima facie
case was made out by them in the trial below. This was business property, operated by
respondents for the express purpose of making a profit. It is to be assumed that a profit was
made. A prima facie case of restoration demands that the question of profits be dealt with
under these circumstances.
Upon its determination that respondents are entitled to rescission, judgment of the trial
court is affirmed. Upon the issue of benefits and profits which equity requires be restored as a
condition to rescission, the judgment is reversed and remanded for a new trial limited to such
issues. No costs are awarded.
____________
74 Nev. 115, 115 (1958) Gordon v. Stewart
T. C. GORDON, Doing Business Under the Firm Name and Style of COMSTOCK
CONSTRUCTION COMPANY, Appellant, v. ROYAL A. STEWART and RICHARD W.
HORTON, Respondents.
No. 4052
April 9, 1958. 324 P.2d 234.
Appeal from judgment of the First Judicial District Court, Ormsby County; Frank B.
Gregory, Judge.
Proceeding involving attorneys' fees. The trial court rendered judgment for attorneys, and
the client appealed. The Supreme Court, Merrill, J., held that where client agreed with his
attorneys that they were to receive contingent fee of thirty-five percent of all sums recovered
by counterclaim which attorneys filed in behalf of client, and client breached contract of
employment, and attorneys repudiated the contract, the court which entertained the
counterclaim could determine reasonable value of services actually performed for client and
could enter personal judgment against client and attorneys could enforce such judgment
without regard to their lien.
Affirmed.
Coldwater, Taber & Hill, of Reno, for Appellant.
Respondents Royal A. Stewart and Richard W. Horton, in propria persona.
1. Attorney and Client.
Where client agreed with his attorneys that they were to receive contingent fee of 35 percent of all sums
recovered by counterclaim which attorneys filed in behalf of client, and client breached contract of
employment, and attorneys repudiated the contract, the court which entertained the counterclaim could
determine reasonable value of services actually performed for client and could enter personal judgment
against client and attorneys could enforce such judgment without regard to their lien. NRS 18.010.
An attorney's right to compensation is not based upon or limited to his lien; such right is based upon
express or implied contract; the lien is but security for his right. NRS 18.010.
Record disclosed that award of $2,500 for services of attorneys in connection with client's counterclaim
was not excessive.
The amount of agreed fee is a proper consideration upon a determination, in quantum meruit, of
reasonable value of attorney's services to client; however, it is not the controlling or dominant
consideration; quantum meruit contemplates that the true reasonable value is to be substituted for the
agreed terms.
OPINION
[Headnote 1]
This is an appeal from judgment for attorney fees in the sum of $2,500. Appellant
contends that the court below was without authority to enter personal judgment for attorney
fees and that its authority was limited to the establishment of an attorneys' lien.
Appellant was defendant in the action below which was instituted July 3, 1953, by
William C. Talbot and Clarendall Z. Talbot. In that action he was represented by respondents
as his attorneys. On his behalf they filed counterclaims against the Talbots under which the
sum in controversy amounted to $10,025.32. An agreement was reached between appellant
and respondents under which the latter were to receive a contingent fee of 35 percent of all
sums recovered by counterclaim.
On June 27, 1955, pursuant to court order, respondents withdrew as counsel for appellant.
The court undertook to fix the compensation to which respondents, as withdrawing counsel,
were entitled for services rendered in connection with the action. It determined that appellant
was guilty of breach of the contract of employment and that respondents were therefore
entitled to repudiate that contract and to have compensation fixed in quantum meruit for the
reasonable value of services actually performed. A fee in the sum of $2,500 was awarded.
The court then rendered judgment in favor of respondents and against appellant in this
amount.
respondents and against appellant in this amount. From that judgment this appeal is taken.
Appellant concedes that the court below was justified in concluding that he was guilty of
breach of the contract of employment and that respondents were therefore entitled to recover
in quantum meruit. He contends, however, that respondents' sole recourse under the court
award is upon their attorneys' lien provided by NRS 18.010 and that the court was without
authority to enter a personal judgment against him which respondents could enforce without
regard to their lien.
[Headnote 2]
Appellant mistakes the nature of an attorney's lien, however. The attorney's right is not
based upon (or limited to) his lien. It is based upon contract express or implied. The lien, as is
true of other forms of lien, is but security for his right. To hold that an attorney's right to
compensation is limited to his lien rights is in effect to deprive him of any right to contract
for other than a contingent fee, since no fee contract could ever be enforced save in event of a
successful recovery to which a lien might attach.
In support of his contention appellant relies upon a series of opinions from the supreme
courts of New York, among the most recent of which, as cited to us, are Oesterreicher v.
Oesterreicher, Sup., 64 N.Y.S.2d 849 and In Re Waxstein and Gelbman, Sup., 130 N.Y.S.2d
285, 286. These cases both hold, following earlier decisions, that a personal judgment for
attorney fees was erroneous and beyond the authority of the court awarding judgment. It is
clear, however, that the limitation of authority was due not to a lack of right in the attorney
but to the fact that the court was engaged in special proceedings in which a personal judgment
was not contemplated. The Oesterreicher case clearly implies that the attorney had redress in
other proceedings to which execution might attach. The Waxstein case expressly states that
the value of the services was determined by the court and that the award fixed the extent of
the litigant's obligation to counsel. New York has also held that on termination of a contract
of retainer a cause of action immediately accrued to the displaced attorney and that he
need not await the outcome of the litigation in which he was displaced.
on termination of a contract of retainer a cause of action immediately accrued to the displaced
attorney and that he need not await the outcome of the litigation in which he was displaced.
Tillman v. Komar, 259 N.Y. 133, 181 N.E. 75.
In New York, therefore, if the attorney is to enforce his right other than through an
attorney's lien, it would appear that he must undertake separate proceedings and cannot obtain
personal judgment against his client in the action to which his services relate.
In the case at bar the question presented by this contention of appellant is whether our law,
procedurally, is the same as that of New York, in which event respondents would be required
to go through the formality of bringing an independent action upon the award made by the
court below.
The statute providing for an attorney's lien does not expressly so provide. The question is
whether it should be so construed. We have already held that the court in the action in which
the attorney's services were rendered has incidental jurisdiction to resolve disputes between a
litigant and his attorney relative to the establishment of an attorney's lien. Earl v. Las Vegas
Auto Parts, Inc., 73 Nev. 58, 307 P.2d 781. In that case we further held that the court's
determination of the extent of the attorney's rights was res judicata and was not subject to
collateral attack in an independent action brought to enforce the attorney's lien. This being so
we can see no advantage in requiring an attorney to bring an independent action in order that
personal judgment might be had. Jurisdiction to establish an attorney's lien includes
jurisdiction to make an authoritative award which is res judicata upon the question of the
extent of the attorney's right and his former client's obligation. Jurisdiction to bind the litigant
to such an award should in all reason include the jurisdiction to bind him by judgment.
We conclude that the court below had authority to enter personal judgment against
appellant.
[Headnote 3]
Appellant next contends that the award was excessive. The court gave consideration to
respondents' showing as to time spent by them in appellant's behalf. Appellant does not
question the showing so made. He contends that the fee awarded would constitute 70 percent
of the contingent fee to which respondents would have been entitled had they successfully
fulfilled their contract; that this is wholly disproportionate.
[Headnote 4]
The amount of the agreed fee is certainly a proper consideration upon a determination, in
quantum meruit, of reasonable value; but, just as clearly, it cannot be held to be the
controlling or dominant consideration. Quantum meruit contemplates that the true reasonable
value is to be substituted for the agreed terms. Discrepancies between value and agreed terms
are bound to occur in every case. We conclude that there is no merit in this contention.
Affirmed.
____________
74 Nev. 119, 119 (1958) Cordano v. Pac. Intermountain Express
AIDA MAY CORDANO, Appellant, v. PACIFIC INTERMOUNTAIN EXPRESS, a
Corporation, and FORREST MELVIN FOX, Respondents.
No. 4058
April 14, 1958. 324 P.2d 232.
Appeal from Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,
Department No. 2.
Action by automobile driver against driver of a tanker truck and trailer and express
corporation for injuries sustained when automobile driver overtook truck driver on 4-lane
highway and came to a stop and was struck by truck in rear. The trial court entered judgment
for truck driver and express corporation and automobile driver appealed.
truck driver and express corporation and automobile driver appealed. The Supreme Court,
Badt, C. J., held that even viewing plaintiff's evidence in a light most favorable to application
of last clear chance doctrine and indulging every reasonable inference in support thereof,
evidence, with respect to question whether truck driver might have avoided collision was
insufficient and did not justify giving instruction on last clear chance doctrine.
Affirmed.
Nada Novakovich, of Reno, for Appellant.
Goldwater, Taber & Hill, of Reno, for Respondents.
1. Automobiles.
In action by automobile driver against truck driver for injuries sustained when automobile driver
overtook truck on highway and came to a stop and was struck in rear by truck, even viewing evidence in
light most favorable to application of doctrine of last clear chance and indulging every reasonable inference
in support thereof, evidence as to whether truck driver might have avoided collision was not sufficient for
submission of a last clear chance instruction to jury.
2. Automobiles.
In order to justify submission of last clear chance instruction to jury, there must be substantial evidence to
show that the defendant had a last clear chance to avoid accident.
OPINION
Appellant, who was the plaintiff below, has assigned as error the court's refusal to give a
requested last clear chance instruction. Whether or not this assignment has merit depends
upon whether there was evidence that would reasonably support a recovery on this theory.
On the 4-lane highway, a part of U.S. Highway 40, going through Sparks, plaintiff,
eastbound from Reno, overtook a Pacific Intermountain Express tanker truck and trailer,
likewise eastbound, which was traveling in the slow lane at approximately 23 miles per hour,
and then turned ahead of him into his lane at approximately 32 miles per hour.
32 miles per hour. She mistook a stop sign on an intersecting road for a sign applying to
eastbound traffic on U.S. Highway 40, came to a stop and the truck struck her Plymouth car
in the rear.
[Headnote 1]
We accept preliminarily plaintiff's statement that the trial court should instruct the jury on
every theory of the plaintiff's case finding substantial support in the evidence, viewing such
evidence in the light most favorable to the application of the doctrine, and indulging every
reasonable inference in support thereof. Selinsky v. Olsen, 38 Cal.2d 102, 103, 237 P.2d 645;
Bonebrake v. McCormick, 35 Cal.2d 16, 19, 215 P.2d 728; Hopkins v. Carter, 109
Cal.App.2d 912, 913, 241 P.2d 1063. It becomes necessary then to examine the evidence
adduced by appellant, or admitted or undenied by her.
There is no evidence on her part as to how far the truck was behind her at any moment or
period of time from the time she turned in front of him till the time of the impact. She did not
deny (other than through her theory of a constant nine-mile per hour speed differential for an
elapsed period of 30 seconds) the truck driver's testimony that she turned into his lane at a
distance of about 10 feet in front of him; nor did she know how far her car was from the front
of the truck. Appellant testified that after she got out of her car she had a conversation with
the driver: He told me, Lady, when you stop you sure stop'. He said that to me several
times. And I told him I stopped for the stop sign. That's when he told me there was no stop
sign. When the police investigated the collision and cited appellant for an improper right
turn into respondents' lane, she pleaded guilty, although she explains she entered such plea at
her husband's request. She was not cited for illegally stopping on the highway because she
stated she had not come to a stop. Although her version of the accident is different, she did
not deny the officer's testimony: She stated that she was driving on the inside lane, B Street.
She looked up and saw a stop sign, stepped on her brakes and swerved into the other lane.
stepped on her brakes and swerved into the other lane. She almost came to a complete stop.
Then the truck hit her from the rear.
We apply then to the lack of any direct testimony as to time or distance within which the
truck driver might have avoided the collision, and to the facts as admitted or not denied by
appellant as above recited, the sole evidence which she contends in this court justified a last
clear chance instruction. She propounded to a civil engineer the following question:
[A]ssuming that a tanker-trailer truck is traveling along the highway at the rate of 23 miles
per hour, that a 1954 Plymouth automobile passes the truck at 32 miles per hour; that both car
and truck maintain these same speeds, and approximately 30 seconds later the car stops. Now,
how far behind the stopped car would the tanker-trailer truck be when the 1954 Plymouth
stopped? Could you calculate that for us on the blackboard please? He answered: 396.90
feet. Her contention is that, as this testimony stands undisputed, it establishes proof that the
driver had 396.90 feet within which to stop, or, putting it in a period of time, that he had 30
seconds within which to stop and that this clearly presented a situation for a jury finding
under the last clear chance doctrine as to whether he could have avoided the accident by
stopping before the impact.
It is to be noted first that the facts given to the witness fixed the distance between the
vehicles from the time the Plymouth passed the truck to the time the Plymouth stopped. But
the time interval estimated by the truck driver was from the time the Plymouth passed the
truck to the time of the impact. These two periods of time are, under appellant's own
contentions, materially different. Thirty seconds from the passing to the stopping of the
Plymouth would not be 30 seconds from the passing to the impact if, as appellant contends, at
the time of the Plymouth's stop the truck was 396.90 feet behind it. But that is not all. The
period of 30 seconds elapsed time was an approximation. It is based entirely upon the truck
driver's estimate. Reading his testimony the elapsed time between the passing and the impact
was approximately 30 seconds or less.
approximately 30 seconds or less. He refused to pinpoint the time. How many seconds less
than 30 seconds remains in doubt. Thirty seconds or less. It's pretty hard to estimate time
under those conditions. Still further facts are in doubt. The time consumed in the passing of
the truck by the Plymouth was not an instantaneous item. Some period of time elapsed in the
act of passing. Nor was the stopping point of the Plymouth an instantaneous matter. Plaintiff
testifies that she came to a slow stop. How much time was consumed in coming to such slow
stop is again indefinite and a matter of conjecture. Further, the engineer's computation was
based on the assumption that during the elapsed time estimated by the truck driver the
respective speeds of the car (32 miles per hour) and the truck (23 miles per hour) remained
constant. Application of brakes on the Plymouth and application of brakes on the truck would
indicate that the speed of neither was constant. Indeed, plaintiff's own testimony would
indicate that her speed was not constant. Add to this the fact that, while the speed of the truck
may be considered to be accurately estimated under the testimony, the speed of the car was an
estimate or an approximation.
[Headnote 2]
The elapsed time between the passing and the impact was not the basis of the question put
to the engineer. The starting and stopping points were both elastic. Time and speed were
approximations. Actual testimony of the space between the truck and the Plymouth was
entirely lacking. There was considerable doubt as to the point at which the Plymouth stopped.
Even eliminating from consideration the truck driver's version of the accident (that the
Plymouth turned in front of him into his lane at a distance of 10 feet ahead of him and then
came to an abrupt stop) and eliminating from consideration the question as to whether the
plaintiff could not have extricated herself from her danger simply by pulling ahead (she was
on a main highway, with nothing to hinder her forward progress) during the period of time it
took for the truck to travel 396.90 feet as contended by her, there was no reasonable or
plausible basis for the submission of a last clear chance instruction to the jury. "[T]here
must be substantial evidence [emphasis supplied] to show that the defendant had a last
clear chance to avoid the accident." Rodabaugh v. Tekus, 39 Cal.2d 290, 246 P.2d 663,
665. And in Bonebrake v. McCormick, 35 Cal.2d 16, 215 P.2d 72S, where the principal
question presented was whether the trial court erred in refusing a requested instruction
on the doctrine of last clear chance, the court said: "This depends on whether there was
evidence which would reasonably support a recovery on that theory."
for the submission of a last clear chance instruction to the jury. [T]here must be substantial
evidence [emphasis supplied] to show that the defendant had a last clear chance to avoid the
accident. Rodabaugh v. Tekus, 39 Cal.2d 290, 246 P.2d 663, 665. And in Bonebrake v.
McCormick, 35 Cal.2d 16, 215 P.2d 728, where the principal question presented was whether
the trial court erred in refusing a requested instruction on the doctrine of last clear chance, the
court said: This depends on whether there was evidence which would reasonably support a
recovery on that theory. Under the evidence as above recited, we are satisfied that the court
was not in error in refusing the requested instruction.
Appellant also assigns error in the court's refusal to give two additional instructions and in
its giving one instruction over her objection. These assignments are not supported by
argument or citation of authority. We are not persuaded that there was error in these rulings.
____________
74 Nev. 124, 124 (1958) Ray Heating Products v. Miller
RAY HEATING PRODUCTS, INC., a Nevada Corporation, dba Ray Heating and Sheet
Metal Co., Appellant, v. BOYCE H. MILLER, B. A. BROWN and ELLEN A. BROWN, His
Wife, Respondents.
No. 4044
April 14, 1958. 324 P.2d 237.
Appeal from the First Judicial District Court, Churchill County; Frank B. Gregory, Judge,
dismissing lien foreclosure complaint.
Lien foreclosure case. The trial court dismissed the complaint, and an appeal was taken.
The Supreme Court, Eather, J., held that a general allegation of performance of labor or
furnishing of materials for construction or improvements upon particular property, without a
particular description of such labor or materials, does not render mechanic's lien claim
fatally defective.
particular description of such labor or materials, does not render mechanic's lien claim fatally
defective.
Guild, Busey & Guild and Howard L. Cunningham, of Reno, for Appellant.
Diehl and Recanzone, of Fallon, for Respondents.
1. Mechanics' Liens.
Absence of statement as to terms, time given and conditions of contract did not render mechanic's lien
claim fatally defective; and such claims was not subject to claimed infirmities of (1) failing to state
claimant's demand after deducting all just credits and offsets or (2) failing to include a sufficient
description of materials furnished or work done. NCL 1929, 3739. NRS 108.060.
2. Mechanics' Liens.
A general allegation of performance of labor or furnishing of materials for construction or improvements
upon particular property, without a particular description of such labor or materials does not render
mechanic's lien claim fatally defective. NCL 1929, 3739. NRS 108.060.
OPINION
[Headnote 1]
The district court dismissed appellant's lien foreclosure complaint on the ground that it did
not state facts sufficient to constitute a claim. Respondents seek to sustain this ruling upon the
sole ground that appellant's claim and statement of mechanic's lien was fatally defective in
that it did not set forth a sufficient statement of the claimant's demand after deducting all just
credits and offsets and a statement of the terms, time given and conditions of the contract.
The statute requires the recording of a claim containing a statement of his demand after
deducting all just credits and offsets, with the name of the owner or reputed owner if known,
also the name of the person by whom he was employed or to whom he furnished the
material, with a statement of the terms, time given, and conditions of his contract.
material, with a statement of the terms, time given, and conditions of his contract. * * * NCL
1929, Sec. 3739. NRS 108.060.
The allegation in appellant's claim of lien was that * * * claimant agreed with owner or
his contractor, Boyce Miller, to furnish materials and labor on the aforesaid premises and
claimant did furnish the aforesaid labor and materials at the reasonable value thereof. Said
claimant has duly performed all terms of said contract on its part to be performed, has
furnished said labor and materials upon said contract. * * * That the market value of said
services due to claimant is the sum of $1487.86, none of which has been paid.
(1) Respondents' first contention is that this language did not comply with the requirement
for a statement of the claimant's demand after deducting all just credits and offsets. The
same attack was made against a similar allegation in Milner et al. v. Shuey, 57 Nev. 159, 60
P.2d 604, 69 P.2d 771, but the allegation consisting of similar language was held sufficient.
(2) The sufficiency of the lien claim is also attacked for failure to state the terms, time
given and conditions of the contract. Against a similar attack this court said in Lonkey v.
Wells, 16 Nev. 271, But if there are no special terms, time or conditions given, none can be
stated, and in the absence of any such specification, or proofs to the contrary, the law would
presume that none existed, and that the materials were to be paid for on delivery.
(3) The most serious attack on the lien claim is that it did not include a sufficient
description of the materials furnished or work done to enable the owner to intelligently
determine as to the bona fides of such contract and the reasonableness thereof. This is the
language used in Warren v. Quade, 3 Wash. 750, 29 P. 827, 829. The ruling was followed in
later Washington cases. The theory of such cases was followed by this court in Porteous
Decorative Co., Inc., v. Fee, 29 Nev. 375, 91 P. 135, 136, which held that a description in a
claim of lien of the work done as outside work on the house was insufficient to support the
lien. However, in the later case of Milner v. Shuey, 57 Nev. 159
case of Milner v. Shuey, 57 Nev. 159, 60 P.2d 604, 605, 69 P.2d 771, this court, against a
similar attack, held sufficient Shuey's allegation in his lien claim that he performed work and
labor upon, and furnished and supplied materials for, about, in and upon, said lode mining
claims, and in the development thereof, which said work, labor and materials furnished and
supplied, is and was of the reasonable value of $2085.50. * * * The court there made
reference to the Porteous case as follows: The Porteous Decorative Co. v. Fee, 29 Nev. 375,
91 P. 135, much stressed by appellants, is not an authority against the sufficiency of the lien
before us. The lien under consideration in that case did not substantially comply with the
statute.
[Headnote 2]
Respondents call attention to the fact that the Shuey case did not in terms overrule the
Porteous case. This amounts to a contention that there are two rules in this state, the first,
under the Porteous case, that a general allegation of the performance of labor or the
furnishing of materials for the construction or improvements upon the particular property,
without a particular description of such labor or materials, renders the claim fatally defective;
and the second, under the Shuey case, that no such particular description is required for the
validity of the lien. They contend further that, such being the case, we are free in this appeal
to choose either the Porteous rule or the Shuey rule. We do not see the situation in this light.
The Shuey case and the Porteous case are not reconcilable. The Shuey case cannot, in our
opinion, be considered otherwise than as overruling the Porteous case. That there may be no
further doubt on the question, we so declare. As the Shuey case is controlling, the district
court was in error in dismissing appellant's complaint.
Reversed with costs and remanded for further proceedings.
____________
74 Nev. 128, 128 (1958) Berto v. Wilson
CLAIR BERTO and JAMES WOOLEVER, Appellants, v. WILLIAM WILSON, GLEN
WOODS, ORVILLE CARLOCK, BOB FRANKS, and CHARLES CAVANAUGH,
Respondents.
No. 4013
April 25, 1958. 324 P.2d 843.
Appeal from judgment of the Third Judicial District Court, Lander County; John F.
Sexton, Judge.
Action to quiet title to mining property. From adverse judgment of the trial court an appeal
was taken. The Supreme Court, Merrill, J., held that evidence sustained finding that
respondents were senior in posting their claims and in discovery of mineral in place and thus
were senior in location of disputed area. See also 73 Nev. 162, 312 P.2d 635.
Affirmed.
(Rehearing denied July 1, 1958.)
George G. Holden, of Battle Mountain, and Cecil S. Haynie, of Grand Junction, Colorado,
for Appellants.
William P. Beko, of Tonopah, for Respondents.
1. Mines and Minerals.
In action to quiet title to mining property, evidence sustained finding that respondents were senior in
posting their claims and in discovery of mineral in place, and thus were senior in location of disputed area.
The location of a mining claim cannot rest upon the conjectural or imaginary existence of a vein or lode.
NRS 517.010.
OPINION
[Headnote 1]
This is an action to quiet title to mining property. Mining claims located by the respective
parties overlap and to that extent are in dispute. Judgment was entered by the trial court,
sitting without jury, quieting title in the respondents to the property claimed by them.
the respondents to the property claimed by them. From that judgment this appeal is taken. The
sole question involved is whether the record supports the determination of the trial court that
respondents were senior in the posting of their claims and in the discovery of mineral in place
and thus were senior in location of the disputed area.
The problem is an old one in modern setting. The rush to a new strike and the scramble for
the most desirable locations set the stage for a drama well-known to the west. Today the
magic word is uranium; the scintillation counter and the mineral-light lamp have taken their
places as prospectors' tools; the airplane and the 4-wheel-drive truck have reduced the factors
of time and distance. The plot of the drama, however, remains essentially the same: the rush,
the locations, the overlapping of claims, the discovery of values, the dispute. And in the
orderly resolution of the dispute the principles of law remain substantially unchanged from
the days of the mother lode and the Comstock.
Appellants' first contention is that the record fails to support the trial court's findings that
respondents were first in the posting of their claims. There is no merit to this contention. The
record amply supports the findings. Appellants are in the position of contending that the trial
court chose to believe the wrong witnesses, a proposition which this court rejects. Carlson v.
McCall, 70 Nev. 437, 271 P.2d 1002; Canepa v. Durham, 65 Nev. 428, 451, 198 P.2d 290,
202 P.2d 286.
The record presents a tale worth telling, however.
In October, 1955 the Atomic Energy Commission was engaged in a series of aerial
explorations seeking by airborne scintillation counters to locate radio-active anomalies: areas
in which scintillation indicates the presence of greater radio-activity than is normally found as
natural background. Notice was given that an anomaly map would be posted on the morning
of October 17, at the post-office bulletin board in Tonopah, Nevada. Uranium prospectors,
thus alerted, were on hand ready for a race to the announced anomaly.
Respondents, while engaged in other mining activities, had observed the commission
airplane in its explorations and judged that the anomaly would be located in southern Lander
or northern Nye Counties. They gambled in support of their judgment and respondent Wilson
was posted at Carver's Station in Smoky Valley, halfway between Tonopah and Austin, to
await a telephone call from respondent Woods in Tonopah as soon as the map was posted.
The call came at about 11 o'clock A.M. and Wilson was directed to a point a few miles
south-east of Austin near the Blackbird ranch. He was off in a jeep at 75 miles an hour with a
substantial lead over all competitors. He reached the anomaly area at about noon, first on the
ground, and commenced his search for the anomaly by aid of scintillator. By 1:15 he was
satisfied that he had found it. By 2 o'clock, when Woods arrived to join him, Wilson had
posted two claims. The two men completed posting two additional claims, concluding at
about 2:30. Location notices were immediately recorded at Austin.
Meanwhile, back at the Tonopah post office, appellants had prepared themselves with a
plane stationed at the Tonopah airport and a rented pick-up truck. In their assault upon the
anomaly it was to be Woolever by land and Berto by air. They ran into time-consuming
difficulties, however. The truck broke down about half-way to Austin. The mishap was
discovered by Berto who landed on the highway and took Woolever aboard with him. They
returned to Tonopah to radio a request that arrangements be made for a truck to meet them at
the Austin airport. En route back to Austin they detoured to fly over the anomaly area in an
air reconnaissance. They observed several motor vehicles already there. By the time they had
landed at Austin, had been driven to the anomaly area and had hiked in to the ground itself,
several two-man parties were already at work posting claims. Several witnesses, including
both respondents, testified to having seen the plane on its reconnaissance at about 2 o'clock.
While appellants deny this and fix a much earlier time, we shall not question the manner in
which the trial court apparently resolved this dispute.
We conclude that respondents have been properly established as senior in the posting of
their claims.
Appellants next contend that the record discloses that respondents had not made any
discovery of mineral in place on October 17 and that their locations for that reason cannot be
recognized as of that date.
[Headnote 2]
The right to location of a mining claim presupposes the discovery of a lode or vein, for
that which is claimed is the lode which has been discovered. NRS 517.010. The location of a
mining claim, therefore, cannot rest upon the conjectural or imaginary existence of a vein or
lode. King v. Amy & Silversmith Consol. Min. Co., 152 U.S. 222, 14 S.Ct. 510, 38 L.Ed 419.
In Cole v. Ralph, 252 U.S. 286, 40 S.Ct. 321, 326, 64 L.Ed. 567, involving conflicting mining
claims in the State of Nevada, the court stated, To sustain a lode location the discovery must
be of a vein or lode of rock in place bearing valuable mineral. * * * In practice, discovery
usually precedes location, and the statute treats it as the initial act. But, in the absence of an
intervening right, it is no objection that the usual and statutory order is reversed. In such a
case the location becomes effective from the date of discovery; but in the presence of an
intervening right it must remain of no effect.
Appellants, having posted their claims on the 17th, returned to the property the following
two days for further prospecting and location work and the staking of corners. Several
shallow pits were dug and a deposit of radio-active mineral-bearing ore was uncovered.
Samples were taken which proved to be autunite, a commercially valuable uranium-bearing
ore.
Respondents, on the other hand, after posting their claims and recording location notices
on the 17th, were required to return to Tonopah that same day due to the illness of respondent
Woods. They did not return to their property for six days. On their return they came prepared
for active mining. A shaft was dug at their original point of discovery and considerable
additional work was done in the development of their discovery and in the improvement of
their claims.
the improvement of their claims. No question is raised as to the sufficiency of their
development work or the survey of their claims or the location certificates ultimately filed.
The question is as to the sufficiency of their original discovery on the 17th to give them a
prior location over appellants.
Appellants read the record as demonstrating that respondents' original location was based
solely upon the indications of radio-activity produced by their scintillator. They contend that
this is no more than an indication of the possible presence of commercially valuable ore and
that in the absence of the discovery of the source of the radiation it cannot be said to
constitute a discovery of mineral in place; citing Rummell v. Bailey, 7 Utah 2d 137, 320 P.2d
653; Globe Min. Co. v. Anderson, Wyo., 318 P.2d 373. Appellants emphasize that
scintillation may have many other causes than uranium-bearing ore, a fact which is not
disputed. Berto testified that in the anomaly area there was no mineralized rock in place
exposed without digging; that without pick-and-shovel prospecting a discovery of mineral in
place could not have been made. Appellants concede that under these circumstances their
own locations must date from their discovery the day following posting (the 18th). They
contend, however, that this was five days before any discovery was made by respondents.
Testimony of both appellants and respondents may be said to be sketchy as to the details of
discovery. It would appear that both sides were primarily concerned with an attempt to
establish priority of posting and that the nature of their discoveries and the particulars thereof
upon each individual claim were secondary considerations at the time of trial. A study of the
record, however, convinces us that there is sufficient to support a determination that, at the
time of posting, mineral in place had been discovered by respondents to the extent required
by law.
In determining whether a sufficient discovery of mineral has been made, the courts make a
distinction between two classes of cases: {1) those {such as the one before us) where the
dispute is between two locators upon the same lode as to which is the prior locator; {2)
those where the issue is whether that which is claimed is a true lode of value and the land
truly mineral in character.
between two classes of cases: (1) those (such as the one before us) where the dispute is
between two locators upon the same lode as to which is the prior locator; (2) those where the
issue is whether that which is claimed is a true lode of value and the land truly mineral in
character.
In cases of the first type the court is not primarily concerned with the nature of the
discovery or the extent of the mineral value which it has demonstrated. The question is as to
which of two contestants is entitled to possession of that which each independently has found.
Each is claiming possession of the same thing for the same values, whatever they may be. An
examination of values, therefore, is of little if any consequence.
Accordingly, what may constitute a sufficient discovery in such a case may be wholly
insufficient in cases involving issuance of patent or establishment of an apex; or where the
ground is claimed as placer or under agricultural or townsite entry. Golden v. Murphy, 31
Nev. 395, 103 P. 394, 105 P. 99; Fox v. Myers, 29 Nev. 169, 86 P. 793; See V. 2, Lindley on
Mines, sec. 336.
The test here is whether the discovery is such as to justify a reasonable miner in expending
his time and money in prospecting and developing the claim. Fox v. Myers, supra. This court
in that case quoted Shoshone Min. Co. v. Rutter, 9 Cir., 87 F. 801, to the following effect (29
Nev. at p. 184), The purpose of the statute, in requiring that no location of a mining claim
shall be made until the discovery of a vein or lode within the limits of the claim located,' was
to prevent frauds upon the government by persons attempting to acquire patents to land not
mineral in character. But as was said in Bonner v. Meikle (C. C.), 82 Fed. 697: It was never
intended that the court should weigh scales to determine the value of mineral found, as
between a prior and subsequent locator of a mining claim on the same lode.'
In Nevada Pacific Development Corp. v. Gustin (9 C.C.A.), 226 F.2d 286, 287, dealing
with a dispute between prior and subsequent locators of a tungsten lode near Gabbs, Nevada,
the court stated that in such a dispute "no more than a slight showing by a prior locator of
discovery of a mineral-bearing vein or lode is needed to satisfy the legal requirements
requisite to a valid location."
near Gabbs, Nevada, the court stated that in such a dispute no more than a slight showing by
a prior locator of discovery of a mineral-bearing vein or lode is needed to satisfy the legal
requirements requisite to a valid location.
In the case at bar the conflicts are between appellants' Linda group of five claims on the
one hand; and, on the other, respondents' Lowboy group of four claims and two of the Nura
group located by others and conveyed to respondents.
The testimony of respondent Wilson and his witnesses is to the effect that at his first
discovery monument on Lowboy a vein had been observed in surface outcropping, appearing
to strike east and west and extending through Lowboy No. 1 in one direction and into the
Nura group in the other. It was a solid formation protruding from the surface. On each of the
Lowboy and Nura claims outcroppings similar to this vein gave indication of vein or lode
material. Radio-activity was apparent on all claims and was highest at the original point of
discovery. A sample was broken by Wilson from the vein outcropping at the original point of
discovery and appeared to him to be autunite. His prospecting prior to location involved not
only visual observation in the light of his prior mining experience, but use of a scintillator and
mineral-light lamp. In the opinion of one witness, a man of many years experience in mining
and prospecting, the appearance of the outcropping at the point of discovery was not only that
of a lode but of the apex of the lode.
While foresight rather than hindsight is the gauge of the reasonable miner's expectations,
in this case subsequent events lend weight to the proposition that Wilson's expectations were
justified and reasonable. Development work clearly demonstrated that the discovery was
genuine. The shaft was dug at the very point of discovery. Along one side it exposed a vein of
autunite. Samples from seven different points throughout the claims demonstrated that what
Wilson and his witnesses had judged to be outcroppings of mineral-bearing ore or vein
matter were such in fact.
judged to be outcroppings of mineral-bearing ore or vein matter were such in fact.
We conclude that a sufficient discovery was made by respondents.
Affirmed.
____________
74 Nev. 135, 135 (1958) Alper Et Al. v. Las Vegas Motel Ass'n
ARBY W. ALPER, dba DESERT ISLE MOTEL, A. SCHINDLER, dba MATER MEA INN,
WESTERN MOTELS INCORPORATION, a Nevada Corporation, dba MIRAGE MOTEL,
CHESTER LYON and MARTIN A. CLEMENS, dba TUMBLEWEED MOTEL, and
OTTILIA VILLA, Inc., a Nevada Corporation, Appellants, v. LAS VEGAS MOTEL
ASSOCIATION, Inc., a Nevada Corporation, and ROZELLA C. BROOMFIELD,
Respondents.
No. 3989
May 14, 1958. 325 P.2d 767.
Department No. 1.
Contempt proceeding against motel operators for violation of order restraining displaying
of advertising signs in violation of ordinance regulating motel advertising. From adverse
judgment of the trial court the operators appealed. The Supreme Court, Eather, J., held that
there was no arbitrary classification in enacting ordinance regulating motel advertising but
not hotels and that ordinance was not unconstitutional on ground that it deprived motel
operators of equal protection of the laws.
Affirmed.
Jones, Wiener and Jones, and D. Francis Horsey, of Las Vegas, for Appellants.
Zenoff and Magleby, of Las Vegas, for Respondents.
1. Constitutional Law.
There was no arbitrary classification in enacting ordinance regulating motel advertising but not hotels and
ordinance was not unconstitutional on ground that it deprived motel operators of equal protection of the
laws. U.S.C.A. Const. Amend. 14 1.
2. Injunction.
Equity will, in a proper case, act to restrain use of criminal practices in business competition upon
principle that one lawfully engaged in business has a right to be free from competition of illegal and
criminal acts.
3. Injunction.
Where defendants' violations of ordinance regulating motel advertising operated to divert trade and
customers from complainants' motels, diverting of patrons by means of unlawful advertising constituted an
invasion of complainants' property rights warranting issuance of injunction.
4. Evidence.
In suit to enjoin defendants from violation of ordinance regulating motel advertising, testimony by
complaining motel operators that prospective patrons had stated they could secure accommodations
elsewhere for a certain price was properly admitted although statements of such prospective patrons were
hearsay.
5. Injunction.
Where restraining order was entered prohibiting motel proprietors from displaying advertising signs in
violation of ordinance regulating motel advertising, removal of dollar symbols from sign advertising rates
but leaving of remaining figures did not constitute a compliance with the order.
6. Injunction.
In contempt proceeding against operator of motel for violation of order prohibiting motel proprietors
from displaying advertising signs in violation of ordinance regulating motel advertising, evidence sustained
finding that hotel annex annexed to a motel was a part of a motel operation.
OPINION
This is an appeal from order of the court below holding these appellants in contempt of
court for disregard of a temporary restraining order theretofore issued by the court. Appellants
are operators of motels in Clark County.
County. The suit was brought by respondents to enjoin appellants from violation of Clark
County ordinance No. 71 regulating motel advertising, secs. 2 and 4 of which provide:
Section 2. It shall be unlawful for any owner or operator of any establishment within the
scope of this Ordinance * * * to display or cause to be displayed any sign or signs which may
be seen from a public highway or street, which sign or signs include in dollars and/or cents a
statement relating to the rates charged at such establishments unless such sign or signs
includes in letters and figures of similar size and prominence the following additional
information: The number of rooms or units in the establishment and the rates charged for
each; whether the rates quoted are for a single or multiple occupancy where such fact affects
the rates charged; and the dates and hours during which such rates are in effect where such
dates and/or times affect the rates charged.
Section 4. It shall be unlawful for any owner or operator of any establishment within the
scope of this ordinance to display or cause to be displayed any sign in connection with any
such establishment relating to rates which shall have thereon any untrue, misleading, false or
fraudulent representation.
The temporary restraining order in question (violation of which led to the contempt order)
was issued July 27, 1956 and prohibited appellants from displaying advertising signs in
violation of the quoted provisions of the ordinance. On August 3, 1956 respondents moved
the court below for an order adjudging appellants in contempt for violating both secs. 2 and 4
of the ordinance. On August 10, 1956 the order was entered holding appellants guilty of
contempt and fining each violating motel the sum of $500. From that order this appeal is
taken.
Appellants challenge the propriety of the contempt order by attacking the restraining order
upon which it was based. They contend: (1) that the ordinance was unconstitutional; (2) that,
being a criminal ordinance, enforcement by injunction was improper.
[Headnote 1]
Upon the constitutional issue, appellants do not question the power of the county to
regulate motel advertising nor contend that the prohibitions of the ordinance constitute an
improper mode of regulation. They contend that since the ordinance applies to motels and not
to hotels, it violates that clause of sec. 1 of the Fourteenth Amendment of the United States
Constitution which provides: No state shall * * * deny to any person within its jurisdiction
the equal protection of the laws.
Appellants concede that this constitutional provision does not preclude resort to
classification for purposes of legislation. They contend, however, that such classification
must be reasonable and rest upon a substantial difference or distinction which bears a just and
reasonable relation to the legislation and that such legislation must operate equally, uniformly
and impartially on all persons within the same class, citing 16A C.J.S. 314, Constitutional
Law, sec. 505 (b) (2). They contend that in this case there is no reasonable basis for a
difference in classification between motels and hotels and that the ordinance thus prescribes
unequal treatment which amounts to a discrimination against motels.
In Pastone v. Commonwealth of Pennsylvania, 232 U.S. 138, 144, 34 S.Ct. 281, 282, 58
L.Ed. 539, the opinion of Mr. Justice Holmes states: But we start with the general
consideration that a state may classify with reference to the evil to be prevented, and that if
the class discriminated against is or reasonably might be considered to define those from
whom the evil is mainly to be feared, it properly may be picked out. A lack of abstract
symmetry does not matter. The question is a practical one, dependent upon experience. The
demand for symmetry ignores the specific difference that experience is supposed to have
shown to mark the class. It is not enough to invalidate the law that others do the same thing
and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the
class named. And later: Obviously, the question so stated is one of local experience, on
which this court ought to be very slow to declare that the state legislature was wrong in
its facts."
question so stated is one of local experience, on which this court ought to be very slow to
declare that the state legislature was wrong in its facts.
To the same effect is Fifth Avenue Coach Co. v. New York, 221 U.S. 467, 31 S.Ct. 709,
55 L.Ed. 815, and Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 466,
93 L.Ed. 533, where the court stated: It is no requirement of equal protection that all evils of
the same genus be eradicated or none at all. Also, Metropolitan Casualty Co. v. Brownell,
294 U.S. 580, 55 S.Ct. 538, 79 L.Ed. 1070.
From the record it may reasonably be inferred that it was in the operation of motels as
distinguished from hotels that Clark County mainly encountered the evil which the ordinance
sought to eliminate. This being so, the classification was not arbitrary and the ordinance may
not be held unconstitutional under the requirement for equal protection of the laws.
Appellants next contend that the claimant below simply sought the enforcement of a
criminal ordinance by injunction, which a court of equity had no power to accomplish unless
there has been an invasion of a property right which equity will protect. They contend that no
property right is involved here, but at most a speculative injury based upon loss of patronage
which respondents expect to receive.
[Headnote 2]
But equity will, in a proper case, act to restrain the use of criminal practices in business
competition upon the principle that one lawfully engaged in business has a right to be free
from the competition of illegal and criminal acts. Featherstone v. Independent Service Station
Assn. (Texas Civ. App.), 10 S.W.2d 124; Glover v. Malloska, 238 Mich. 216, 213 N.W. 107,
52 A.L.R. 77; Choctaw Pressed Brick Co. v. Townsend, 108 Okla. 235, 236 P. 46; New
York, N. H. & H. R. Co. v. Deister, 253 Mass. 178, 148 N.E. 590; Long v. Southern Express
Co., (1912, D.C.) 201 Fed. 441; reversed on other grounds in 5 Cir. (1913), 202 Fed. 462, 120
C.C.A. 568. In the case at bar, the record demonstrates that appellants' violations of the
ordinance operated to divert trade and custom from respondents' motels to their own.
at bar, the record demonstrates that appellants' violations of the ordinance operated to divert
trade and custom from respondents' motels to their own.
[Headnote 3]
It would follow that the diverting of patrons by means of advertising such as here in
question constitutes an invasion of property rights warranting the issuance of the injunction.
In this conclusion we do not reach the question as to whether in all cases invasion of
property right is essential to issuance of an injunction to restrain an act made criminal by
statute.
[Headnote 4]
Appellants next contend that there is no evidence of the invasion of property rights in that
the only evidence tending to show that patrons were diverted was hearsay evidence, admitted
over the objection of appellants. The testimony in question was that of several witnesses
respecting conversations had with prospective patrons of their motels. The statements
objected to as hearsay were those of the prospective patrons which, in general, were to the
effect that they could secure accommodations elsewhere for $5; that they knew this to be so
since they had seen signs to this effect.
The significance of this testimony, however, lies not in the truth of the statements but in
the fact that they were made. Whether in fact the prospective patrons could have obtained
accommodations for $5 is of little consequence. What is significant is that they refused to
accept the witnesses' accommodations, giving as their reason the fact that accommodations
could be secured elsewhere at the rates advertised. It was not error, then, to admit the
testimony.
[Headnote 5]
Finally appellants contend that the record demonstrates that they complied with the court
order and therefore were not in contempt. It appears that the compliance consisted in their
removing the dollar symbol from their signs, leaving the figures remaining.
symbol from their signs, leaving the figures remaining. We agree with the trial court that this
was no compliance. The reading motorist would undoubtedly conclude that figure referred to
the rates. Even should appellants be sustained in their contention that all reference to rates in
dollars and cents had been eliminated, the use of the figures was, then, misleading and a
violation upon this score.
[Headnote 6]
The appellants who operate the Tumbleweed Motel contend that in their case the court
improperly held them in contempt since the only sign they maintain with reference to rates
does not allude to their motel but to their hotel annex. The court below concluded that what
they chose to call a hotel annex was in fact a motel. We shall not disturb this conclusion.
Whatever character the annex might have been able to claim had it been an independent
operation, the fact that it was not independent but was annexed to a motel supports the
finding and conclusion of the trial court that it was a part of a motel operation.
Affirmed.
____________
74 Nev. 141, 141 (1958) Katleman v. Katleman
MILDRED KATLEMAN, Appellant, v.
BELDON KATLEMAN, Respondent.
No. 4097
May 20, 1958. 325 P.2d 420.
Appeal from the Eighth Judicial District Court, Clark County; Merwyn H. Brown, Judge
presiding.
Divorce action. The trial court denied motion of wife for allowances and alimony pendente
lite and wife appealed. On husband's motion to dismiss, the Supreme Court held that order
denying allowances and alimony pendente lite was not a final determination upon question
of existence or extent of wife's right to allowances and was not appealable.
pendente lite was not a final determination upon question of existence or extent of wife's right
to allowances and was not appealable.
On motion to dismiss appeal; appeal dismissed.
George M. Dickerson, of Las Vegas, and Mitchell, Silberberg and Knupp, of Los Angeles,
California, for Appellant.
Woodburn, Forman, Wedge, Blakey and Thompson, of Reno, and Leo K. Gold, of Beverly
Hills, California, for Respondent.
Appeal and Error.
Order denying allowances and alimony pendente lite was not a final determination upon question of
existence or extent of wife's right to allowances and could not be regarded as final judgment for purposes
of appeal. NRS 125.040; Rules of Civil Procedure, rule 72(b).
OPINION
On Motion to Dismiss Appeal
Per Curiam:
This is an appeal from order of the court below denying the motion of appellant, as the
wife in an action for divorce, for allowances and alimony pendente lite under NRS 125.040.
The matter is before us on the motion of the respondent husband to dismiss the appeal upon
the ground that the order in question is not an appealable order under Rule 72(b) NRCP.
This proposition has been well established in this state. Engebretson v. Engebretson, 73
Nev. 19, 307 P.2d 115; Harrison v. Harrison, 54 Nev. 369, 17 P.2d 693; Kapp v. Kapp, 31
Nev. 70, 99 P. 1077, 21 Ann. Cas. 599; Accord: Wilkinson v. Wilkinson, 73 Nev. 143, 311
P.2d 735.
Appellant, in opposition to the motion to dismiss, points out that the cited cases all
involved orders granting allowances or alimony pendente lite, while this appeal involves an
order of denial.
appeal involves an order of denial. She contends that the rule announced in those cases is
founded upon the obvious need of the destitute wife for protection in litigation of this sort;
that the giving of such protection requires that this appeal be held proper.
Certainly protection of the wife is the reason for the statutory provision for allowances in
NRS 125.040. The rule against appealability, however, is based upon the proposition that the
order is not a final determination upon the question of the existence or extent of the wife's
right to allowances and cannot, therefore, be regarded as a final judgment upon these matters.
The order is no more final when it opposes the position of the wife than when it favors it. If
appeals are to be allowed in cases of this sort the remedy is through amendment of Rule 72(b)
NRCP.
The motion must be granted.
Appeal dismissed.
____________
74 Nev. 143, 143 (1958) Foster v. Arata
WILLIAM F. FOSTER, ETHEL FOSTER, LAURENCE SPEARS, GEORGE EVANS, Jr.,
WALTER PARMAN and MARGARET PARMAN, Appellants, v. SILVE G. ARATA, RITA
GIANELLI, Executrix of the Estate of Joseph Gianelli, Deceased, DOMINIC L.
BATTILANA, Individually and as Directors and Trustees of Tahoe Enterprises, Incorporated,
a Corporation, Respondents.
No. 4009
May 20, 1958. 325 P.2d 759.
Appeal from judgment of Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge, Department No. 1.
Derivative action by stockholders seeking to declare void two deeds of trust and chattel
mortgage executed by corporation to defendant stockholders and directors who foreclosed
the same.
who foreclosed the same. The lower court entered decree quieting title of defendant
stockholders and directors and their successors in properties purchased and plaintiff
stockholders appealed. The Supreme Court, Badt, C. J., held that deeds of trust and chattel
mortgage, notwithstanding fact that they were not authorized by a majority of disinterested
directors, were not void where loans for which the same were given as security were essential
to business of corporation and for the benefit of corporation and used entirely by corporation
in its business, but plaintiff stockholders were entitled to an accounting of assets of
corporation taken over by defendant stockholders and which were not included in their
securities.
Affirmed in part. Remanded for limited new trial.
John E. Gabrielli, of Reno, and Hutchinson and Quattrin, of San Francisco, California, for
Appellants.
Guild, Busey and Guild, of Reno, and Mazzera, Snyder and DeMartini, of Stockton,
California, for Respondents.
1. Corporations.
Fact that corporation has executed a contract with an officer thereof does not take transaction out of rule
that acceptance of benefits by corporation ratifies an invalid transaction by estoppel, and such fact only
subjects evidence to a close scrutiny as to good faith of officer of corporation.
2. Corporations.
Where deeds of trust and chattel mortgage were executed by corporation to directors and officers thereof
as security for loans which were essential to the business and preservation of corporation and were used by
corporation and in its business, chattel mortgage and deeds of trust given as security for loans made openly
and in good faith and upon fair and reasonable terms without unfair advantage were not void.
3. Corporations.
In derivative action against defendant directors and officers of corporation to have it declared that deeds
of trust and chattel mortgage executed by corporation to defendants were void, evidence sustained finding
that corporation's use of money was with full knowledge of plaintiff stockholders, that the loans constituted
full cash value of properties covered by trustees, and proceeds of loan were used by the corporation in its
corporate business.
4. Account.
Where stockholders' derivative action sought decree declaring that the two deeds of trust and chattel
mortgage executed by corporation to defendant stockholders and directors were void and for an accounting
during period defendants took over administration of business after their election as officers and directors,
and record was devoid of evidence showing any waste of assets, mismanagement, fraud or official
misconduct during the period, plaintiff stockholders were not entitled to an interlocutory order for an
accounting.
5. Corporations.
Where corporation needed funds with which to carry on business and were lent the same by directors of
corporation who in turn received corporation's deeds of trust and chattel mortgage as security, although
directors did not hold a majority of stock, they were in such a dominant position as to subject them to rule
that a dominant or controlling stockholder or group of stockholders acts in a fiduciary capacity under which
their dealings with corporation are subject to rigorous scrutiny, and where any of their contracts or
engagements with corporation is challenged burden is on them not only to prove good faith but also show
inherent fairness of transaction from viewpoint of corporation and those interested therein.
6. Corporations.
Where directors and dominant stockholders' group in corporation made loans to corporation of funds
necessary to corporate business and received as security therefor deeds of trust and chattel mortgage
covering corporate property and foreclosed the same when corporation defaulted, activities of mortgagees
were subject to close scrutiny to ascertain whether foreclosure purchases and subsequent resale of
corporate properties were completely fair to corporation and whether or not an adequate price was paid for
property.
7. Corporations.
In stockholders' derivative action to declare void deeds of trust and chattel mortgage executed by
corporation to group of stockholders and directors as security for loans, proceeds of which were used in
corporation's business, there was substantial evidence to support finding that foreclosure sale of properties
bought in at foreclosure by mortgagees was for full cash value of real and personal property, that no other
purchaser could be found, and that the advances to corporation by mortgagees exceeded sum received on
resale of properties.
8. Account.
Where corporate directors and stockholders received as security for loans to corporation deeds of trust
and chattel mortgage which were later foreclosed after corporation's default and sale of property, bought in
by mortgagees at foreclosure, was for full cash value of properties and subsequent resale by mortgagees
was for sum which was less than the total advances to corporation, complaining stockholder were not
entitled to an accounting for proceeds from resale of corporate property.
not entitled to an accounting for proceeds from resale of corporate property.
9. Account.
Where corporate directors and officers to whom corporation had executed deeds of trust and chattel
mortgage as security for various advances foreclosed on such instruments after corporation default and
took over other assets of corporation which were not included in securities such as cash on hand, accounts
receivable, licenses, etc., plaintiff stockholders were entitled to an accounting of such assets.
OPINION
Foster and Parman and others, appellants here, as plaintiffs below, sued Arata, Gianelli
and Battilana, defendants below and respondents here, in a derivative action seeking a decree
declaring void two deeds of trust and a chattel mortgage executed to the defendants by Tahoe
Enterprises Incorporated whose stock was owned in part by the plaintiffs and in part by the
defendants. By sale under the powers the defendants had bought in all of the mortgaged real
and personal property and thereafter sold the same to third parties. For a period prior to the
foreclosures, the defendants had also had themselves elected officers and directors and
conducted the affairs of the corporation. Immediately following the foreclosures and possibly
as part of the proceedings, the defendants also took possession of certain assets not embraced
within the security instruments. The decree of the district court quieted title of the defendants
and their successors in the properties purchased, and denied all relief to the plaintiffs by way
of an accounting, dissolution, winding up or otherwise.
The issues before this court involve (1) the propriety of the decree quieting title in the
defendants and their successors under appellants' contention that the deeds of trust and
mortgages taken by the respondents were absolutely void as being without authority of any
kind by reason of the fact that respondents were directors and officers of the corporation and
because of lack of authorization by a majority of disinterested directors; and {2) the court's
refusal to order an accounting on any of the occasions of {a) the administration of the
affairs of the corporation as a going concern under defendants' operation as officers and
directors, {b) the disposition of the mortgaged real and personal property that had been
bought in under the foreclosures and {c) the disposition by defendants of other assets of
the corporation not embraced within the liens of their mortgages.
and (2) the court's refusal to order an accounting on any of the occasions of (a) the
administration of the affairs of the corporation as a going concern under defendants' operation
as officers and directors, (b) the disposition of the mortgaged real and personal property that
had been bought in under the foreclosures and (c) the disposition by defendants of other
assets of the corporation not embraced within the liens of their mortgages.
The real properties involved are on U. S. Highway 50 at Lake Tahoe and consist of
contiguous parcels of land, partly east of the highway, on which are situate a hotel building, a
casino, bar and restaurant building known as Tahoe Village, and a larger acreage known as
the foothill property, and parcels west of the highway known as Sky Harbor and extending to
the lake and known as the lake front property.
In the spring of 1949 plaintiff Parman, as agent for himself and his coplaintiffs Foster and
Evans and for defendants Arata, Battilana and Gianelli and for one Marengo and Simms,
purchased the Tahoe Village, lake front and foothill properties from Glen Meyers, the
receiver of the former operators for $271,250, payable $121,250 down and $150,000 October
1, 1949, also assuming a balance of $37,660 on a former purchase contract. That spring,
likewise as agent, he purchased from St. Claire Corporation the Sky Harbor property for
$100,000, payable $19,200 down, assuming the balance on what was known as the Rabe-Sky
Harbor contract in the sum of $61,600, and the further sum of $19,200 payable June 1, 1950.
Tahoe Enterprises Incorporated held its organizational meetings June 30, 1949, and on
July 1, 1949 Parman assigned the Meyers contract to the corporation. A month later, out of a
special fund, Parman made a payment of $10,956 due on the Rabe-Sky Harbor contract. The
following day the board of directors was advised by Parman, president, that $385,000 cash
had been paid in to the treasury for the corporation's capital stock but that $30,000 more
would be needed to carry on the company's business; that Battilana would lend this sum on
chattel mortgage which was actually executed August 15, 1949 by Parman as president and
Foster as secretary.
15, 1949 by Parman as president and Foster as secretary. On September 7, 1949 this action
was ratified by the directors who were also advised by Parman as president that Arata,
Battilana and Gianelli would loan $150,000 to the corporation to pay the final installment on
the Meyers contract due October 1, 1949. The directors authorized Parman and Foster as
president and secretary, respectively, to issue the corporation's notes for this amount secured
by deed of trust on all of the company's real property, and on the 28th of that month Arata,
Battilana and Gianelli deposited $150,000 with Nevada Bank of Commerce at Reno for such
final payment. The $150,000 notes and the deed of trust were executed and delivered October
1, 1949. The following month Parman assigned the St. Claire-Sky Harbor contract to the
corporation.
On December 5, 1949 Arata and Battilana loaned $15,000 to the corporation by depositing
that sum to its credit at the Hunter Square Branch of the Bank of America at Stockton,
California, and later that month an audit was made by Semenza and Kottinger, certified
public accountants, which showed an operating loss for the 1949 season of $122,550.18.
This condensed recital concludes the first season's operation, the season of 1949. We now
come to the second period involved in the operation of the properties and the relationship of
the parties, the 1950 season.
On December 14, 1949 a special meeting of stockholders was held, the capital stock issued
and delivered to the sundry stockholders, and Arata, Battilana and Gianelli, Simms, Marengo,
Foster and Parman were elected directors. At the directors' meeting that followed Arata was
elected president, Battilana first vice president, Simms second vice president, Gianelli
secretary, and Marengo treasurer. Except for Simms, the parties named acted, respectively, as
such officers and directors thereafter.
The corporation at this point was confronted with necessary financing for the 1950 season,
which ordinarily would commence in the month of May. The officers and directors were
particularly concerned with the approaching payments to become due on the Rabe and St.
directors were particularly concerned with the approaching payments to become due on the
Rabe and St. Claire contracts.
At about this time the Simms stock of 600 shares was purchased by one Chinchiollo and
one Matteoni. These men, like Arata, Battilana and Gianelli, were from Stockton, California.
The stock ownership then stood:
Foster................................................................................ 600
Parman.............................................................................. 100
Spears................................................................................ 300
Evans................................................................................ 150
Marengo............................................................................ 200
Chinchiollo and Matteoni (Simms stock).......................... 600
Gianelli.............................................................................. 600
Arata.................................................................................. 600
Battilana............................................................................ 600

_____

Total.......................................................................... 3,750
At about this period there seems no doubt but that Arata, Battilana and Gianelli now took
over the complete management and operation of the corporation and its affairs. The corporate
books and records were moved to Stockton. The relationship between the plaintiffs and the
defendants became strained. Plaintiffs' group appeared to be in favor of an immediate sale of
the properties. Defendants felt that they should carry on into the 1950 season and attempt to
make a sale of the corporation and its properties as a going concern. Money was needed to
meet the approaching land contract payments. Attempts were made to borrow the necessary
funds from the First National Bank of Nevada at Reno and from the Stockton branch of the
Bank of America. In these attempts defendants offered to subordinate their $150,000 deed of
trust to the end that a bank loan might be secured by a first lien. On May 2, 1950 a directors'
meeting was attempted, but as only directors Arata, Gianelli and Foster attended, the meeting
for lack of quorum was postponed to May 3. Foster, although he had signed a consent to the
postponement, did not appear. Arata, Gianelli, Battilana and Marengo were present,
constituting a quorum.
Gianelli, Battilana and Marengo were present, constituting a quorum. It appeared that Arata,
Battilana and Gianelli had loaned to the corporation $22,500 and were willing to loan
$100,000 more to carry on the business, and authorization was given for execution of the
corporation's note and deed of trust to these three officers and directors in the sum of
$123,025. Manifestly, out of the four directors present, three of them were the interested
parties advancing the funds and receiving their secured notes. These were executed May 15,
1950 and the three payees deposited their cashier's check, payable to the corporation, in the
Stockton bank. Out of this deposit there was paid on May 15 the $19,200 payment due June
1, 1950 on the St. Claire contract, paying the same in full.
On June 6, 1950 there was another meeting of directors. At this meeting directors Foster,
Parman, Marengo, Spears, Gianelli, Arata and Battilana were present. A considerable part of
the record is devoted to testimony as to what occurred at that meeting. The minutes show that
at such meeting the minutes of the May 3, 1950 meeting were read and approved. There was
no specific resolution ratifying, approving or confirming the action of the directors taken at
their May 3 meeting. It is evident, however, that the affairs of the corporation, including the
advance of funds to it by Arata, Battilana and Gianelli and the security taken by them were
fully discussed. There seems no doubt but that all parties realized that the notes advanced by
Arata, Battilana and Gianelli, secured as aforesaid, would fall due October 1, 1950 (the close
of the 1950 season), and that the payees would expect payment of their money at that time. In
the meantime, sundry payments had been made on the land contracts out of the funds
advanced by Arata, Battilana and Gianelli. During the months of November and December of
1950 these three defendants deposited further sums in the respective amounts of $21,000,
$12,000, $3,000 and $6,000 to the credit of the corporation at the Stockton bank to be
checked out for the corporate operations. On December 19, 1950 a directors' meeting was
held at which Parman, Foster, Arata, Battilana, Gianelli and Marengo were present.
held at which Parman, Foster, Arata, Battilana, Gianelli and Marengo were present. At that
meeting one Scofield, an accountant, presented a statement showing a substantial loss in the
company's operations. All agreed that the property should be sold and Arata, Battilana and
Gianelli expressed their willingness to defer foreclosure while all parties attempted to find a
buyer. The meeting was adjourned to January 9, 1951 and a stockholders' meeting of
December 19, 1950 was likewise adjourned to that date. In the meantime a payment of
$6,360.10 was made on the Rabe foothill contract out of funds deposited by the three
defendants. The January 9, 1951 meeting of the directors, adjourned to that day by consent
from the December 19, 1950 meeting, was attended only by Arata, Battilana, Gianelli and
Marengo. No buyer had been found. In February the three defendants gave notice of default
and election to sell under their $123,025 trust deed. During May and June foreclosures were
perfected and the properties bought in by the beneficiaries. In August, 1951 they in turn sold
the Sky Harbor property for $100,000 and in April, 1952 sold the Tahoe Village, foothill and
lake properties for $262,500.
(1) Appellants contend that the May 15, 1950 note and deed of trust in the sum of
$123,025 were neither duly or regularly authorized nor subsequently ratified or confirmed and
that they were void ab initio. The contention is without merit, as held by this court under
similar circumstances in Federal Mining and Engineering Co. v. Pollak, 59 Nev. 145, 85 P.2d
1008. That case involved a mortgage foreclosure by the president of the appellant
corporation. The note and mortgage had been executed, as the lower court found, without the
full knowledge of all the directors. The loans made by the president had all been for the direct
benefit of the corporation, and had been essential to its continued operation and preservation
of its assets. Accepting appellant's contention that the note and mortgage authorized by less
than a quorum were invalid under the bylaws of the corporation, the court held that the action
taken by the directors was subsequently ratified by the corporation's acceptance of the
benefits thereof, i.e., by estoppel.
acceptance of the benefits thereof, i.e., by estoppel. * * * [L]egal action was not and could
not have been taken for lack of a quorum. Appellant's contention in these respects must be
allowed. But generally speaking, it is a well-settled rule of law that one cannot accept the
benefits derived from a transaction and repudiate any burden connected with it. To state the
rule more specifically in its application to the facts of this case, a corporation cannot avail
itself of the benefits of moneys loaned to it for its corporate purposes, and disavow a
mortgage given without authority by its agents to secure the loan.
Under a similar fact situation in the case of Defanti v. Allen Clark Co., 45 Nev. 120, 127,
198 P. 549, 551, this court stated, The evidence not being such as to convince us that the
money borrowed upon its security was not applied with the knowledge and acquiescence of
the corporation, we are of the opinion that to permit the company to shield itself under its
corporate entity, * * * and now disaffirm the mortgage, when every opportunity for its
mortgagee to obtain any other security is lost, would be unconscionable. Entertaining this
view, we conclude to affirm the decree of foreclosure, even though the mortgage was
unauthorized.
[Headnote 1]
Appellants' contention that the mortgage and deeds of trust were void ab initio is based
upon the proposition that an officer or director cannot deal personally with the corporation.
This court, following the U. S. Supreme Court view, has held the rule to be otherwise.
Appellant contends that the respondent being an officer of the corporation takes the case out
of the rule we have approved (that acceptance of the benefits by the corporation ratifies an
invalid transaction by estoppel), and invalidates the transaction. This is not so. Such fact only
subjects the evidence to a close scrutiny as to the good faith of the officer of a corporation
who loans money to it and takes security therefor. That such a transaction is valid if fairly
entered into, is settled law. Federal Mining and Engineering Co. v. Pollak, supra, citing
Hough v. Reserve Gold Mining Company, 55 Nev. 375, 35 P.2d 742, 745; Twin-Lick Oil Co.
v.
Hough v. Reserve Gold Mining Company, 55 Nev. 375, 35 P.2d 742, 745; Twin-Lick Oil Co.
v. Marbury, 91 U.S. 587, 23 L.Ed. 328; and other cases. In Hough v. Reserve Gold Mining
Company, surpra, this court considered the validity of a contract by the corporation to
purchase property from an officer of the corporation. We there said: In such a case the better
view, sustained by the weight of authority, is that a contract between a corporation and an
officer thereof is not void per se, nor is it voidable, except for unfairness or fraud for which
it will be closely scrutinized in equity.' A comprehensive collection of authorities on this
general subject is found in 31 A.L.R. 663, et seq.
[Headnote 2]
Under the foregoing rules thus recognized by this court and appearing to be of well-nigh
universal application, we must reject appellants' repeated contention that the $123,025 deed
of trust and $30,000 chattel mortgage were void. In this respect the trial court found that the
loans covered by the notes in question were essential to the business of the corporation and to
the preservation of its assets and were made for the benefit of the corporation; that they were
entirely used by the corporation in its corporate business and for payment of its obligations;
that the corporation received and accepted the benefits of the loans; that the loans were
openly made by the defendants in good faith and upon fair and reasonable terms without
unfair advantage; that the corporate use was with full knowledge of the plaintiffs; that the
loans constituted full cash value of the properties covered by the trust deeds and that when
made, the corporation was solvent.
[Headnote 3]
Appellants assert that this finding is not warranted by the evidence. Not only is the finding
supported by substantial evidence but it is difficult to see how the court could have found
otherwise. We are compelled to conclude that a good title passed to Arata, Battilana and
Gianelli in their purchases under those proceedings and that such part of the lower court's
judgment quieting the title of the defendants and their successors in interest to the
properties thus purchased must be affirmed.
that such part of the lower court's judgment quieting the title of the defendants and their
successors in interest to the properties thus purchased must be affirmed.
[Headnote 4]
(2) The next contention of appellants is that it was error for the court to refuse to order an
accounting. This phase of the case has to do with the season of 1950 during which the
defendants took over the administration of the business after their election as officers and
directors at the stockholders' and directors' meetings of December 14, 1949. The court's
denial of an accounting for this period was based upon the lack of the laying of a proper
foundation. In this there was no error. The record is devoid of evidence showing any waste of
assets, mismanagement, fraud or official misconduct during this period. Under such
circumstances plaintiffs were not entitled to an interlocutory order for an accounting. In
Benson v. Associated Art Press, Inc., 236 App.Div. 645, 260 N.Y.S. 282, 284, the court said:
On a record showing a complete absence of wrongdoing there can be no judgment for an
accounting. The misconduct is not to be presumed. Indeed the law is to the contrary. The
directors of a company still are the agents and trustees of a corporation, and have the control
and management of its affairs for the benefit of the stockholders and the reasonable service of
the public, and until it is shown otherwise there is a presumption that their acts were honest
and in the best interests of the company,' (quoting opinion in Matter of Watertown Gas Light
Co., 127 App.Div. 462, 466, 111 N.Y.S. 486, and citing other cases). In Bell v. Frank Gilbert
Paper Co., 117 Misc.Rep. 610, 193 N.Y.S. 26, 29, the court said: A stockholder of a
corporation has no absolute right to compel an accounting to him by the corporation or its
officers. An accounting, however, may be decreed, upon proof of official misconduct; but the
burden of proof resting upon the stockholder is only met when he established that waste and
misconduct, or misappropriation of funds, has actually been committed by the defendants.
See also Scolnick v. Sun Specialties, 104 N.Y.S.2d 21; 19 C.J.S. 251, Corporations, sec. 833.
[Headnote 5]
(3) The refusal of the court to order an accounting of the proceeds of sales of the properties
made by the defendants after their foreclosures is appellants' next assignment of error. Here
we are concerned with the personal dealings of the defendants, as fiduciaries, with assets of
the corporation. The general rule relied upon in this assignment is that stated in 3 Fletcher,
Cyclopedia of Corporations (Perm.Ed.), sec. 884: Directors and other officers of a private
corporation cannot either directly or indirectly, in their dealings on behalf of the corporation
with others, or in any other transaction in which they are under a duty to guard the interests of
the corporation, make any profit for themselves, or acquire any other personal benefit or
advantage, even though such officer or director may own practically all of the stock of the
corporation, and if they do so, they may be compelled to account therefor to the corporation
in an appropriate action. Often quoted is the language of Mr. Justice Douglas speaking for
the United States Supreme Court in Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct.238, 245, 84
L.Ed.281: A director is a fiduciary. * * * So is a dominant or controlling stockholder or
group of stockholders. * * * Their powers are powers in trust. Their dealings with the
corporation are subjected to rigorous scrutiny and where any of their contracts or
engagements with the corporation is challenged the burden is on the director or stockholder
not only to prove the good faith of the transaction but also to show its inherent fairness from
the viewpoint of the corporation and those interested therein. * * * The essence of the test is
whether or not under all the circumstances the transaction carries the earmarks of an arm's
length bargain. If it does not, equity will set it aside. See the application of this principle in
Lebold v. Inland Steel Co., 7 Cir., 125 F.2d 369, where emphasis is laid upon a sale of the
property for an inadequate consideration. The court likewise applied this principle in Austrian
v. Williams, D.C., 103 F.Supp. 64, in which certain transactions of which complaint was
made were approved, while other transactions were set aside and rescission adjudged.
adjudged. See also Mayflower Hotel Stockholders Protective Committee v. Mayflower Hotel
Corp., 84 U.S.App. D.C. 275, 173 F.2d 416.
[Headnote 6]
Although from the tabulation, supra, it would appear that the defendants did not hold a
majority of the stock (although plaintiffs contend that they likewise controlled the 600 Simms
shares which would give them a majority), they were still in such dominant position as to
subject them to the rule stated. Although as seen from Twin-Lick Oil Co. v. Marbury, 91 U.S.
587, 23 L.Ed. 328, and other cases cited supra, the defendants had the right to bid the
property in to protect their security, they were still charged with their obligations as
fiduciaries. Their purchases must have been in the best interests of the corporation consistent
with their rights to realize on their security. Hallam v. Indianola Hotel Co., 56 Iowa 178, 9
N.W. 111. Their activities must be subject to close scrutiny to ascertain whether the
foreclosure purchases and subsequent resale of the corporate properties were completely fair
to the corporation. An important criterion is whether or not an adequate price was paid for the
property. Union Ice Co. of Philadelphia v. Hulton, 291 Pa. 416, 140 A. 514. We need not
multiply the authorities. They are of similar purport and decided upon the facts of each
individual case.
[Headnotes 7, 8]
The findings of the district court that the sale by the defendants of the properties bought in
at foreclosure ($125,000, subject to the deed of trust for $150,000, and $15,000 for the chattel
mortgaged property bought in) constituted the full cash value of said real and personal
properties is substantially supported by the evidence. No other purchaser could be found and
no other bids were made, although other persons attended the sale. The aggregate of their
receipts on resale (sale to Salette for $262,500 and the sale to Fisher for $65,000 less a
broker's commission of $23,000 and plus a $40,000 appraised value of properties retained)
made their total recovery $344,500.
recovery $344,500. Their advances to the corporation exceeded this sum according to
testimony to which the district court was entitled to give credence by over $70,000. This in
turn was subject to minor credits and charges not substantially affecting the situation. The
testimony of the defendants, the bank accounts offered in support, the books of the
corporation deposited in court for the inspection of the plaintiffs and the exhibits of the
accountants furnished ample substantiation of the court's findings and conclusions in this
respect. On this item then the court was likewise justified in denying interlocutory judgment
for an accounting. Under these circumstances [a]n accounting would be no more than an
empty ceremony. Scolnick v. Sun Specialties, 104 N.Y.S.2d 21,23.
[Headnote 9]
(4) Appellants further assign as error the court's refusal to order an accounting of assets
taken over by the defendants which were not included in their securities. These assets are
referred to by appellants as items of cash in hand, cash in bank, accounts receivable, licenses,
deposits as security for taxes, deposits on utility services, union contracts for entertainers and
prepaid insurance. While it is true that the defendants have accounted for an item of $489.75
as a refund from the Nevada Industrial Insurance Commission and likewise for a refund of
$1,160.60 from Sierra Pacific Power Company and a refund of $4,500 on the deposit for
entertainment, and $368.80 apparently on account of partial prepaid insurance of $5,345,
appellants were foreclosed by orders of the court in the sustaining of objections to questions
on cross examination from making inquiry not only into these items but into an item of
inventory of liquors in the sum of $2,922.53, and an item of cash on hand and in bank of
$15,370.45, which items appeared in the balance sheet of September 30, 1950. Objections
were sustained to all questions on cross examination attempting to elicit information as to
what had become of these items, upon the ground that such inquiries went into the subject
of accounting, for which a proper foundation had not been laid.
inquiries went into the subject of accounting, for which a proper foundation had not been laid.
We have heretofore held in this opinion that an accounting was properly refused for the
period in which the defendants were in active control because there had been no showing of
waste, mismanagement or fraud in the conduct of the business as a going concern. We have
also held that an accounting was properly refused of the proceeds of sales of property bought
in on foreclosure because of lack of showing of any unfairness, inadequacy of price or other
facts to throw doubt upon the fact that the defendants had suffered a substantial loss in the
transactions. We have here, however, a different situation. At the close of the 1950 season
substantial assets were in the hands of the defendants which they took over and disposed of
arbitrarily. They had no lien upon these assets. The authorities justifying foreclosure of their
mortgages under the conditions described have no bearing upon their seizure and disposition
of these assets. An accounting must be had of such disposition.
(5) Appellants assign error in the court's refusal to enter a decree dissolving the
corporation, which relief, among others, was sought by the prayer of their complaint. The
answer of defendants asserting the propriety of their loans to the corporation and of the trust
deeds and chattel mortgage securing same, as well as of the realization upon the said
securities and the use of the loaned funds for the purposes of the corporation, would indicate
their agreement with plaintiffs' allegation that the corporation was without assets of any kind.
In any event the evidence conclusively shows and the court specifically found that
substantially all of the real and personal property of the corporation had been sold under the
trust deeds and chattel mortgages so that the corporation was indeed substantially without
property or assets of any kind as alleged by plaintiffs. We can conceive of no clearer example
of a corporation which has abandoned its business, which situation under the provisions of
NRS 78.650 authorizes a decree dissolving the corporation.
If the limited new trial hereby ordered, and such judgment and orders as may be made by
the trial court as a result thereof, indicate that a dissolution of the corporation is called for
under the statute, it may be that under the facts and circumstances developed, further
consideration will be given to this item by that court.
The case must be remanded to the district court for a new trial limited to an accounting by
the defendants of the assets thus taken over by them which were not included in their deeds of
trust or chattel mortgage. Such limitation, however, is without prejudice to the right of the
court to order a further accounting either of the 1950 operation by respondents or of the sale
of assets taken over by foreclosure if the accounting of the unpledged assets taken over and
disposed of should throw such doubt upon the fairness and good faith of respondents as to
indicate the propriety of such more extensive accounting; and without prejudice to the right of
the court to consider and determine the question of dissolution.
Subject to the last preceding paragraph the judgment quieting title in respondents and their
successors is affirmed; the denial of an accounting to appellants for the 1950 operation of the
business and for the proceeds of sale of the foreclosed properties is affirmed; the denial of an
accounting for the disposition of assets not included in the mortgages is reversed and the
cause remanded for a limited new trial of this item. Each party will pay his and their own
costs on this appeal.
____________
74 Nev. 160, 160 (1958) Levinson v. Levinson
RICHARD LEVINSON, Appellant, v. JOAN
LEVINSON, Respondent.
No. 4059
May 22, 1958. 325 P.2d 771.
Appeal from the Eighth Judicial District Court, Clark County; Grant L. Bowen, Judge
presiding.
Divorce proceedings in which husband appealed from that portion of divorce decree
entered in favor of wife by the trial court, which made final allowance of counsel fees for
wife for services rendered pendente lite. The Supreme Court, Eather, J., held that where after
suit was brought by wife motion for allowance of counsel fees pendente lite was made and
after a hearing an order for allowance was entered, and subsequently, before trial, motion was
made for an additional allowance of counsel fees, court in determining subsequent motion
was entitled to consider the rendering of legal services between time original order was
entered and motion for additional allowance was made, since such motion was but a renewal
of the original motion.
Affirmed.
Jones, Wiener and Jones, of Las Vegas, for Appellant.
Hawkins and Cannon and Zenoff and Magleby, of Las Vegas, for Respondent.
1. Divorce.
Order for allowance of counsel fees for wife pendente lite must operate prospectively and expenses
incurred and services performed in the past are not proper considerations. NRS 125.040.
Order for allowance of counsel fees for wife pendente lite does not possess finality which would
constitute it in effect a final judgment from which an appeal would lie. NRS 125.040.
3. Divorce.
Where suit for divorce was brought by wife and soon after a motion was made for allowance of counsel
fees for wife pendente lite and an order was entered thereon, and subsequently, before actual trial motion
was made for additional allowance, motion was but a renewal of original motion seeking review of
preliminary order, and consideration of legal services performed by wife's counsel during time
between original order and subsequent motion for an additional allowance was
proper.
services performed by wife's counsel during time between original order and subsequent motion for an
additional allowance was proper. NRS 125.040.
OPINION
This is an appeal from that portion of a divorce decree in favor of the wife which makes
final allowance of counsel fees for the wife for services rendered pendente lite. The award of
fees was made pursuant to a motion for allowances made during the pendency of the action.
The sole assignment of error is that the court, as a basis for its allowance, considered services
rendered prior to the date of the motion.
[Headnote 1]
With reference to allowances pendente lite, NRS 125.040 provides that the court may
* * * require the husband to pay such sums as may be necessary to enable the wife to carry
on or defend such suit. * * * That an order for allowances under this section must operate
prospectively has been well established in this state. Expenses incurred and attorneys' services
performed in the past are not proper considerations. Benson v. Benson, 66 Nev. 94, 204 P.2d
316; Fleming v. Fleming, 58 Nev. 179, 72 P.2d 1110; Accord: Cunningham v. Cunningham,
60 Nev. 191, 192, 102 P.2d 94, 105 P.2d 398; Hannah v. Hannah, 57 Nev. 239, 62 P.2d 696;
Wilde v. Wilde, 2 Nev. 306.
In the case before us the suit was brought by the wife September 7, 1956. Motion for
allowances was made at that time. On October 12, 1956, after hearing, an order for
allowances was made. Included was an allowance of $600 for counsel fees. Trial was set for
April 10, 1957. On that date, prior to trial, a motion was made by the wife for additional
counsel fees. The court deferred action until after trial had been completed. Trial was
recessed and was not completed until April 18, 1957. The following day a hearing was had
relative to the motion for counsel fees and an order was made allowing additional counsel
fees in the sum of $3,000.
motion for counsel fees and an order was made allowing additional counsel fees in the sum of
$3,000. During the hearing testimony was admitted as to the nature and extent of legal
services rendered between October 12, 1956 (the date of the original order for counsel fees),
and April 10, 1957 (the date of motion for additional fees). Objection to such testimony,
made by appellant, was overruled. It is conceded by counsel for respondent that the court
order for additional allowances took into consideration the services performed during this
period. The sole question before us is whether this was error.
Appellant contends that the court, in allowing additional counsel fees, was precluded from
considering services rendered prior to the motion for additional counsel fees under our rule
precluding the granting of allowances for services rendered in the past.
[Headnote 2]
As we view it, the question in essence is as to the nature of the original order for counsel
fees. Was it in any respect a final determination upon the existence and extent of the wife's
right to allowances for specific purposes? Or was it rather in all respects an interlocutory,
preliminary or tentative determination and subject always, until final judgment, to further
interlocutory order of the court? In our view it is the latter rather than the former. It has been
well established that the order does not possess the finality which would constitute it in effect
a final judgment and that an appeal does not lie therefrom. Engebretson v. Engebretson, 73
Nev. 19, 307 P.2d 115; Harrison v. Harrison, 54 Nev. 369, 17 P.2d 693; Kapp v. Kapp, 31
Nev. 70, 99 P. 1077, 21 Ann. Cas. 599; Accord Wilkinson v. Wilkinson, 73 Nev. 143, 311
P.2d 735.
[Headnote 3]
The original order made October 12, 1956 was not, then, a final determination upon the
extent of the wife's right to receive and the husband's obligation to pay counsel fees under the
existing circumstances. The fixing of the extent of that right and obligation was preliminary
and tentative and subject to further interlocutory order of the court.
order of the court. This being so, the application for additional allowances was but a renewal
of the original motion, seeking review by the court of its preliminary order and an
examination of the suitability of such order in the light of the circumstances existing at the
time of the review.
In reviewing the suitability of the original order the court may properly consider services
necessarily or properly rendered subsequent thereto, since such services were rendered in
reliance not only upon the original order but also upon the right to seek review of such order.
Therefore we conclude that the court below did not err in admitting testimony relative to
legal services performed between the date of the original order and the motion for additional
allowances.
Affirmed.
____________
74 Nev. 163, 163 (1958) So. Nev. Life Underwriters Ass'n v. City of Las Vegas
SOUTHERN NEVADA LIFE UNDERWRITERS ASSOCIATION, Appellant, v. CITY OF
LAS VEGAS, NEVADA, a Municipal Corporation, Respondent.
No. 4042
May 26, 1958. 325 P.2d 757.
Department No. 1.
Suit for declaratory relief. The trial court rendered judgment on the pleadings in favor of
the defendant, and the plaintiff appealed. The Supreme Court, Eather, J., held that the statute
setting forth the requirements relative to residence, integrity and experience of those engaging
in insurance business and requiring a written examination and authorizing issuance of license
to those permitted to transact such business and providing for payment of $2 fee to cover
administrative cost of issuance of license was enacted in the exercise of the police power
and did not preclude city, in the exercise of its power to tax for revenue purposes, from
requiring insurance underwriters to pay $20 semi-annually for a business license.
payment of $2 fee to cover administrative cost of issuance of license was enacted in the
exercise of the police power and did not preclude city, in the exercise of its power to tax for
revenue purposes, from requiring insurance underwriters to pay $20 semi-annually for a
business license.
Affirmed.
Goldwater and Singleton, of Las Vegas, for Appellant.
Howard W. Cannon and Ralston O. Hawkins, of Las Vegas, for Respondent.
1. Licenses.
The statute setting forth the requirements relative to residence, integrity and experience of those engaging
in insurance business and requiring a written examination and authorizing issuance of license to those
permitted to transact such business and providing for payment of $2 fee to cover administrative cost of
issuance of license was enacted in the exercise of the police power and did not preclude city, in the exercise
of its power to tax for revenue purposes, from requiring insurance underwriters to pay $20 semi-annually
for a business license. NRS 679.010 et seq., 684.010, et seq., 686.020, subd. 2; St. 1954-1955, c. 152,
31.
2. Insurance.
In statute setting forth the requirements relative to residence, integrity and experience of those engaging
in insurance business and requiring a written examination and authorizing issuance of license to those
permitted to transact such business and providing for payment of $2 fee to cover administrative cost of
issuance of license, the word license means a true regulatory license. NRS 679.010 et seq., 686.020.
OPINION
This is a suit for declaratory relief. Appellant as plaintiff seeks to establish that the Las
Vegas city code, chap. 17, sec. 12 (as amended by city ordinance No. 715), requiring payment
of $20 semiannually for a business license is invalid so far as concerns insurance
underwriters. Judgment in favor of the city was rendered by the court below upon the
pleadings. This appeal is from that judgment.
Appellant contends that the city is precluded from levying a license fee by virtue of
statutory provision to that effect. NRS 686.020 provides for the fees to be charged by the
insurance commissioner. Subsection 2 provides, The possession of a license, under the
provisions of this Title [57] shall be authorization to transact such business as shall be
indicated in such license and shall be in lieu of all licenses required to solicit insurance
business within the State of Nevada.
The charter of the City of Las Vegas, 1954-1955 Statutes of Nevada, chap. 152, sec. 31,
provides, The Board of Commissioners shall have the power: * * * 8. To raise revenue by
levying and collecting a license fee or tax on any private corporation or business within the
limits of the city, and to regulate the same by ordinance. All such licenses, fees, and taxes
shall be uniform in respect to the class upon which they are imposed.
Pursuant to this charter provision the code provision in question was enacted.
[Headnote 1]
The sole question upon this appeal is whether the statutory provision of NRS precludes the
imposition of the charge imposed by the city ordinance.
It is clear that the state regulation is in the exercise of police power and that the license is
provided to establish that the licensee has met the qualifications fixed by statute for those
who engage in the insurance business. Chapter 684 NRS sets forth the state requirements
relative to residence, integrity and experience. A written examination is required. The state
charges no fee or tax personal to the solicitor or underwriter for his engaging in business. The
only fee (other than the examination fee) is to cover administrative costsa $2 charge for
issuance of the license.
The city charge, on the other hand, is as clearly a tax for revenue purposes. No attempt is
made to regulate or to establish qualifications for engaging in the insurance business or the
manner in which one should conduct his business operations.
In McQuillan on Municipal Corporations, Vol. 9, sec. 26.15, page 26, it is stated,
Consistently, municipal police power to regulate and license as a mode of regulation is to
be distinguished from municipal power to license for revenue.
police power to regulate and license as a mode of regulation is to be distinguished from
municipal power to license for revenue. On the one hand, a tax that is not in any sense
regulatory and is imposed expressly for general revenue purposes is not a license tax. A
so-called license fee or tax imposed for revenue is in truth a tax and not a license exaction
under the police power. In sec. 26.16 of the same work it is stated, Various factors bear on
the matter whether a particular exaction is a licensing fee for regulation or a tax for revenue.
In general, the nature and purpose of an ordinance imposing an exaction and the nature and
purpose of the charter provision or statute authorizing the ordinance will determine the
character of an exaction in this respect. Thus, a declared or obvious purpose to regulate tends
to establish an exaction as a purely licensing and regulatory fee. But an ordinance having no
provisions for regulation and imposing an exaction is a tax ordinance designed to raise
revenue. When levied for revenue alone, so-called license fees or license taxes are revenue
taxes * * *.
To the same effect is Lamere v. City of Chicago, 391 Ill. 552, 63 N.E.2d 863, 866, where it
is stated, The two powers are separate and distinct, and controlled by different principles.
The two powers are for different governmental purposes. Either may be exercised by exacting
a license fee. * * * The purpose for which the police power may be exercised is for the
protection of the lives, health, morals, comfort and quiet of all persons and the protection of
property within the State, and a statute or ordinance enacted under such power must be
designed to prohibit or regulate those things which tend to injure the public in such matters.
On the other hand, an ordinance which provides for a license and the payment of a license fee
without regulatory provisions of any kind is solely a revenue measure and not within the
police power. * * *
[Headnote 2]
We conclude that the word licenses in NRS 686.020 must be construed to refer to the
true regulatory license, since that is the only form of license with which the state is
concerned in Title 57 NRS.
state is concerned in Title 57 NRS. Under this construction the statute does not preclude Las
Vegas from the exercise of its power to raise revenue by levying and collecting a tax upon
business.
Affirmed.
____________
74 Nev. 167, 167 (1958) Dreyer v. Dreyer
LOUIS DREYER, Appellant, v.
LEA DREYER, Respondent.
No. 4100
June 3, 1958. 325 P.2d 705.
Appeal from Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,
Department No. 2. On motion to dismiss appeal and for damages and costs for frivolous
appeal.
Divorce action by husband. The wife filed counterclaim. The trial court rendered judgment
for wife, and the husband appealed. The wife docketed the appeal in order to interpose her
motion to dismiss for husband's failure to serve or file any designation of record on appeal or
statement of points and for failure to order transcript of court reporter's record and to cause
the record on appeal to be filed within 40 days from date of filing notice of appeal. The
Supreme Court held that the record failed to show excusable neglect on part of husband.
Appeal dismissed. Damages denied.
(Petition for rehearing denied June 3, 1958.)
Gordon C. Shelley and Harry A. Busscher, of Reno, for Appellant.
Pike & McLaughlin and John W. Barrett, of Reno, and Jerome L. Schiller, of San
Francisco, California, for Respondent.
1. Divorce.
In proceeding on motion to dismiss appeal in divorce action for appellant's failure to serve or file any
designation of record on appeal or statement of points and failure to order transcript of court reporter's
record and to cause record on appeal to be filed within 40 days from date of filing notice of appeal, record
failed to show excusable neglect on part of appellant. Rules of Civil Procedure, rule 75(a, b, d, j).
2. Divorce.
Even though appeal in divorce action may have been frivolous and sham, respondent was not entitled to
award of damages. NCL 1929, 8906.
OPINION
Per Curiam:
[Headnote 1]
Respondent docketed the above appeal in order to interpose her motion to dismiss. Rule
75(j) NRCP. The motion is supported by affidavits showing the following facts: She had
previously been awarded certain community belongings and funds by the Superior Court of
California in and for the City and County of San Francisco. Thereafter appellant filed his
complaint for divorce in the Second Judicial District Court of Nevada in and for Washoe
County. Various pleadings were filed in that action, including respondent's counterclaim and
motion for allowances. In that action she recovered judgment which included an order to
appellant to pay respondent certain sums of money, with which he has entirely failed to
comply. Appellant filed and served his notice of appeal from that judgment and his
undertaking for costs on appeal June 21, 1957. Thereafter he failed to serve or file any
designation of record on appeal or statement of points on which he intended to rely on appeal.
He ordered no transcript of the court reporter's record and failed to cause the record on appeal
to be filed within 40 days from the date of filing the notice of appeal. Time for filing such
record expired July 31, 1957. These omissions were in violation of the provisions of Rule
75(a), (b) and (d), NRCP.
Opposition to the motion was filed by way of a statement by appellant's attorneys, Gordon
C. Shelley and Harry A. Busscher, alleging, inter alia, that the appeal is taken in good faith on
the contention, without further explanation, that the lower court was without jurisdiction to
enter such judgment; that the failure to comply with the requirements of NRCP was the
result of excusable neglect. As to the details of the neglect separate factual statements have
been filed by Mr. Shelley, Mr. Busscher, and L. William Paul, who formerly was also of
counsel. While the details of these statements to some extent are in conflict, such disputes
need not here be resolved. It would appear that through confusion and misunderstanding
between counsel as to their individual responsibilities relative to the perfecting of the appeal
the necessary steps were not taken.
Considering the extent of the lapse of time here involved we are of the opinion that the
showing is insufficient to constitute excusable neglect, and that the motion to dismiss the
appeal must be granted. Doolittle v. Doolittle, 70 Nev. 163, 262 P.2d 995; Bank of Nevada v.
Drayer-Hanson Inc., 70 Nev. 416, 270 P.2d 668.
[Headnote 2]
Respondent asserts that the appeal is frivolous and sham and moves that she be awarded
$500 as damages. The only authorities cited in support of said motion are Padilla v. Mason,
53 Nev. 226, 296 P. 1083, and Wilson v. Goldring, 58 Nev. 154, 72 P.2d 1109. At the time of
the orders made in those cases sec. 8906, NCL 1929, contained the following provision:
* * * and when it appears to the appellate court that the appeal was made for delay, it may
add to the costs such damages as may be just. The statutes now in effect do not contain this
provision.
The appeal is hereby dismissed, with costs to respondent incurred in the docketing of said
appeal, preparation of the record, motion and supporting papers. The motion for damages is
denied.
____________
74 Nev. 170, 170 (1958) Wilde v. Wilde
CORNEL WILDE, Appellant, v.
MARJORY WILDE, Respondent.
No. 4065
June 4, 1958. 326 P.2d 415.
Department No. 2.
Divorce action. After final judgment of divorce and after remarriage of wife, the trial court
entered order refusing entry of satisfaction of judgment, and husband appealed. The Supreme
Court held that where divorce decree incorporated by reference the parties' property
settlement agreement establishing the amount payable by husband as alimony for three years
and providing the manner in which alimony should be computed for subsequent period of
seven years and subsequent period of one month and stating that in event wife had not
remarried within 10 years from date of agreement, the husband would then pay to the wife,
until her death or remarriage, alimony computed in the manner set forth, husband was
required to pay alimony to wife for the first 10 years even though the wife had remarried.
Judgment affirmed.
John S. Belford, of Reno, for Appellant.
H. W. Edwards, of Reno, and Harold D. Geffen, of Beverly Hills, California, for
Respondent.
Divorce.
Where divorce decree incorporated by reference the parties' property settlement agreement
establishing the amount payable by husband as alimony for three years and providing the manner in
which alimony should be computed for subsequent period of seven years and subsequent period of one
month and stating that in event wife had not remarried within 10 years from date of agreement, the
husband would then pay to the wife, until her death or remarriage, alimony computed in the manner set
forth, husband was required to pay alimony to wife for the first 10 years even though the wife had
remarried. NRS 125.150.
74 Nev. 170, 171 (1958) Wilde v. Wilde
OPINION
Per Curiam:
This is an appeal from special order after final judgment. The judgment, rendered August
30, 1951, was a decree of divorce. On December 12, 1956 appellant sought an order of the
trial court terminating his obligation to pay alimony as established by the final decree and
seeking entry of full satisfaction of judgment in respect to alimony. The order from which this
appeal is taken is the order of the court below refusing entry of satisfaction of judgment.
The ground upon which appellant based his application to the court below was that
respondent, his former wife, had remarried and that his obligation to pay alimony thereby had
ceased under the law of this state. NRS 125.150 provides in part, In the event of the death of
either party or the subsequent remarriage of the wife, all alimony awarded by the decree shall
cease unless it shall have been otherwise ordered by the court. [Emphasis supplied.] The
sole question upon this appeal is whether the decree of divorce provided that payment of
alimony should continue notwithstanding the remarriage of the wife.
The decree itself is silent upon the question of alimony. It incorporated by reference the
provisions of a written agreement of property settlement entered into between the parties and
ordered compliance by the parties.
Section 13 of that agreement provides, In discharge of Husband's obligation to support
and maintain wife because of their marital and family relationship, the parties agree that
husband, by way of alimony, and not as part of the property settlement, shall pay alimony to
the Wife for her support and maintenance, as follows: * * * Then follow, in subparagraph (a)
of the agreement, provisions establishing the amounts payable as alimony for a period of
three years from September 1, 1951. Subparagraph (b) then provides for the manner in which
the sum shall be computed for a subsequent period of seven years following the expiration of
the three-year period specified in subparagraph {a).
74 Nev. 170, 172 (1958) Wilde v. Wilde
three-year period specified in subparagraph (a). Subparagraph (c) then provides for the
method of computing the payments for a subsequent period of one month. Subparagraph (d)
then provides, If the wife shall not have remarried within the period of ten years from the
date of this agreement the husband shall pay to her commencing with the eleventh year and
continuing until the death or remarriage of the wife, or the death of the husband, whichever is
sooner, as alimony, annually, a sum equivalent to [then is set forth the method of computing
alimony from this point on].
This, through incorporation by reference, was the language of the court's decree with
reference to alimony. The parties construe this language differently. Appellant construes it as
providing simply that alimony shall be payable in a certain amount, which amount is subject
to reduction after ten years, provided it is then still payable. Respondent, on the other hand,
construes the language to provide that for ten years, regardless of remarriage of the wife, the
husband shall pay her the specified sums as alimony; that thereafter a reduced sum shall only
be payable provided the wife has not remarried and continues single.
The trial court has by its action in effect adopted the latter construction as proposed by the
wife.
Upon this appeal questions are raised as to whether we are construing (1) an agreement
independent of the decree or (2) a decree in which the agreement has become merged. We do
not find it necessary to decide this question since under either conception an affirmance is
indicated.
Affidavits presented by the wife which remained uncontradicted at the time of the hearing
below, established that the true intent of the parties was in accordance with her construction
of the language of the agreement. This would support the trial court's action assuming that it
was the agreement which was being construed.
Assuming the agreement to have been merged and that the trial court was but construing
the language of its own decree, certainly great weight must be given to such construction
for it is then the intent of the trial court with which we are primarily concerned.
74 Nev. 170, 173 (1958) Wilde v. Wilde
its own decree, certainly great weight must be given to such construction for it is then the
intent of the trial court with which we are primarily concerned. The parties have failed to
provide us with authority as to the circumstances under which an appellate court may review
such lower court action and as to the limitation, if any, upon its appellate function in
connection with such review. We do not find it necessary to settle these matters. The
construction adopted by the trial court cannot be said to be unreasonable.
We note that termination of the support obligation by remarriage was not mentioned in
connection with the support payments provided in subparagraphs (a), (b) and (c) but was
twice expressly mentioned in connection with subsequent payments as set forth in
subparagraph (d). The expression of this limitation is some indication that it was not to be
applied tacitly but, rather, was to be applied only where expressed. There is, therefore,
support in reason for the court's construction of its decree as requiring payment of alimony for
the first ten years regardless of the remarriage of the wife.
Affirmed.
____________
74 Nev. 173, 173 (1958) Crofoot v. Hill
HENRY CROFOOT, A. G. WOOD AND MURMANILL CORPORATION, Appellants, v.
STARR HILL, Jr., Respondent.
No. 4037
June 6, 1958. 326 P.2d 417.
Appeal from judgment of the Sixth Judicial District Court, Humboldt County; Merwyn H.
Brown, Judge.
Action on conflict of lode claim with a placer. The trial court entered judgment adverse to
owners of placer, and owners appealed. The Supreme Court, Badt, C. J., held that evidence,
which revealed the filing by third parties of certificates of location as to the lode, but which
did not show a discovery, was not sufficient to establish that the filing of the certificates
segregated the lode from the public domain and thereby precluded the United States from
disposing of the ground by patent to owner of the placer.
the filing of the certificates segregated the lode from the public domain and thereby precluded
the United States from disposing of the ground by patent to owner of the placer.
Reversed.
(Petition for rehearing denied July 10, 1958.)
James A. Callahan, of Winnemucca, Theodore A. Kolb, Sullivan, Roche, Johnson and
Farraher, of San Francisco, for Appellants.
D. M. Leighton and John H. Mathews, of Winnemucca, for Respondents.
In the issuing of placer patents, the United States Land Office was not authorized to broaden the
exclusion of lodes known to exist in the boundaries of the placer claim, so that the exclusion would also
cover lodes claimed to exist. 30 U.S.C.A. 37.
A valid and subsisting lode location, made and kept up in accordance with the provisions of federal
statutes, continues to subsist until the lode is relocated by another.
Clear and convincing proof was required to show the existence of a known lode within a placer at time of
application for placer patent and thereby to prevent the placer patent from conveying title to the lode, and a
showing of location certificates filed by strangers to the locator of the lode claim did not constitute clear
and convincing proof. 30 U.S.C.A. 37.
Upon a dispute between locators on the same lode, discovery is sufficient to give a right to location of a
mining claim if it will warrant the expenditure of time and money in development to confirm the apparent
existence of values, but, upon dispute between a lode and a prior placer location, the apparent existence of
values must have been confirmed before a discovery of a known lode, as contemplated by the exclusionary
clause of the statute which excludes from placer patents lode known to exist within the placer claim, can be
said to have been made. 30 U.S.C.A. 37.
In an action on conflict of a lode claim with a placer, evidence, which revealed the filing by third parties
of certificates of location as to the lode, but which did not show a discovery, was not sufficient to establish
that the filing of the certificates segregated the lode from the public domain and thereby precluded the
United States from disposing of the ground by patent to owner of the placer. 30 U.S.C.A. 37.
OPINION
This appeal involves the conflict of a lode claim with a placer, or, more closely defined,
the question of the existence of a known lode within the boundaries of the placer at the time
of the placer patent application. The further question involved is whether mere proof of the
filing of a certificate of lode location within the boundaries of a prior placer location, by
parties foreign to the litigation, so segregated the lode from the public domain that the United
States was precluded from disposing of the ground by patent to the owner of the placer.
Appellants' predecessors located the Sheol Sulphur Placer Mines Nos. 1, 2 and 3 in 1891
and No. 4 in 1902. Since then appellants or their predecessors have been continually in
possession except as herein noted. On January 22, 1919, Nevada Sulphur Corporation,
appellants' predecessor, made application for a placer patent for the four Sheol Placers. On
April 5 of the same year Alunite Company of Nevada filed an adverse in the land office,
alleging that, as successor to one I. C. Clark and one J. D. Knox, it was the owner of certain
conflicting lode claims within the placer ground applied for. On April 28 of the same year the
adverse claimant filed its adverse suit to which an answer was filed denying the existence of
the claimed lodes as known veins and on September 13, 1920, the adverse action was
dismissed by stipulation. On June 8, 1923, the land office issued a placer patent without
exclusions, excepting the clauses hereinafter recited, and permitted the applicant to purchase
all of the property as placer ground at $2.50 per acre.
1

On March 26, 1955, respondent located the Pal Lodes Nos. 1, 2, 3 and 4 within the
boundaries of the Sheol Placers 1, 2, 3 and 4, and on June 16, 1955, filed his complaint to
quiet his title to the four Pal Lode claims. He had read in a mining and engineering journal
of the presence of alunite in the district.
____________________

1
The land office in issuing the patent without definite exclusions did so under rules requiring a field
examination by one of its officers to determine the character of the land and requiring it specifically to set forth
or exclude known veins contained within the placer ground.
had read in a mining and engineering journal of the presence of alunite in the district. He
investigated appellants' patent and particularly that part of it excluding claimed or known
lodes, investigated the property itself, decided that the lodes were open to location, located
them, performed certain work upon the property and recorded his certificate of location.
In setting his stakes and marking his boundaries upon the ground, he used identical points
embraced in certain prior locations of the Alunite Lode (which he located as the Pal No. 1),
the Alunite No. 1 (which he located as Pal No. 2), the Sulphate Lode (which he located as Pal
No. 3), and the Pacific No. 2 Lode (which he located as Pal No. 4). The original locations had
been made on July 13, 1917 by Knox and Clark, who then recorded their certificates of
location for their said four lode claims. Alunite Company, successor to Clark and Knox, for
the fiscal year July 1, 1918 to June 30, 1919, in place of performing any assessment work on
the lodes for that period, filed, pursuant to an act of congress, its notice of intention to hold
the said four lodes. In April of 1923 it filed a proof of assessment work for the year 1922. It
also filed proofs of labor for the year ending June 30, 1931. Accordingly, since the location in
1917, it did no work on the property, except for 1919 and 1931, for the 38 years till
respondent located in 1955. It did, however, file notices of intention to hold for the years
1932, 1933, 1934, 1935, 1937 and 1938. For the next 17 years from 1938 to 1955 there is
neither record nor proof of any kind that the Alunite Company conveyed the property to
anyone else, made any further filings of any kind, did any work upon the property or was ever
present upon the property. Respondent does not claim to be in privity with Alunite Company
or with Knox and Clark, or either of them, or to be a grantee or successor in interest.
Under these circumstances the learned trial judge found for respondent on two grounds:
(1) that there was a claimed lode within the boundaries of the placer {and we speak of "the
placer" and "the lode" as indicating the legal situation with reference to all of the claims
involved) which by the terms of the placer patent was excluded therefrom; and {2) that
the recordation of the Knox and Clark location certificates in 1917 had segregated the
four lode claims {corresponding identically with respondent's Pals 1 to 4 located in 1955)
from the public domain, and that the United States had, therefore, parted with its title
and could no longer convey or patent such ground to appellants.
(and we speak of the placer and the lode as indicating the legal situation with reference to
all of the claims involved) which by the terms of the placer patent was excluded therefrom;
and (2) that the recordation of the Knox and Clark location certificates in 1917 had
segregated the four lode claims (corresponding identically with respondent's Pals 1 to 4
located in 1955) from the public domain, and that the United States had, therefore, parted
with its title and could no longer convey or patent such ground to appellants. With reference
to the first ground it should be noted that the court did not find that there was a known lode
within the placer patent application. Respondent, in support of the judgment, insists (1) that
such lodes were excluded by reason of the fact that they were known to exist at the time of
the application for placer patent, and (2) that they had been segregated from the public
domain by reason of the Knox and Clark locations and remained thus segregated until
respondent's 1955 filings, so that the finding of a known lode was immaterial.
(1) At an early date conflict and uncertainty resulted from the wording of placer patents as
issued by the United States Land Office. In the instant case, as under the procedures in the
earlier cases, the patent as issued granted to appellants' predecessors the Sheol Placers 1 to 4,
subject to the following:
First. That the grant hereby made is restricted in its exterior limits to the boundaries of the
said mining premises, and to any veins or lodes of quartz or other rock in place bearing gold,
silver, cinnabar, lead, tin, copper, or other valuable deposits, which may have been discovered
within said limits subsequent to and which were not known to exist on January 22, 1919.
Second. That should any vein or lode of quartz or other rock in place bearing gold, silver,
cinnabar, lead, tin, copper, or other valuable deposits, be claimed or known to exist within the
above-described premises at said last named date, the same is expressly excepted and
excluded from these presents.
The federal statute under which the patent was issued is R.S. sec. 2333, 17 Stats. at Large
94, Compiled Stats. 1901, p. 1433, 5 Fed. Stats. Ann. 1906, p. 45, 30 U.S.C.A. sec. 37, and is
quoted in the margin.
2

[Headnote 1]
It will be noted at once that in place of the statutory exclusion of a vein or lode * * *
known to exist within the boundaries of the placer, the land office inserted in its patent an
exclusion of any vein or lode * * * claimed or known to exist. A great part of the briefs and
argument of counsel is devoted to this question. This phase of the appeal, however, has been
definitely settled by the repeated holdings of the United States Supreme Court to the effect
that the land office was not authorized to broaden the exclusion of known lodes by excluding
claimed or known lodes. U. S. v. Iron Silver Mining Co., 128 U.S. 673, 9 S.Ct. 195, 32 L.Ed.
571; Iron Silver Mining Co. v. Reynolds, 124 U.S. 374, 8 S.Ct. 598, 31 L.Ed. 466.
Subsequent land office decisions followed these rulings.
[Headnote 2]
(2) In support of the contention that the Knox and Clark certificates of location segregated
the lode claims from the public domain, respondent first relies upon the well-recognized rule
that a valid and subsisting lode location, made and kept up in accordance with the
provisions of the statutes of the United States, continues to subsist until the lode is
relocated by another.
____________________

2
Where the same person, association, or corporation is in possession of a placer claim, and also a vein or
lode included within the boundaries thereof, application shall be made for a patent for the placer claim, with the
statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to
the provisions of sections 21-24, 26-30, 33-48, 50-52, 71-76 of this title, including such vein or lode, upon the
payment of $5 per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. The
remainder of the placer claim, or any placer claim not embracing any vein or lode claim, shall be paid for at the
rate of $2.50 per acre, together with all costs of proceedings; and where a vein or lode, such as is described in
section 23 of this title, is known to exist within the boundaries of a placer claim, an application for a patent for
such placer claim which does not include an application for the vein or lode claim shall be construed as a
conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim;
but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall
convey all valuable mineral and other deposits within the boundaries thereof.
well-recognized rule that a valid and subsisting lode location, made and kept up in
accordance with the provisions of the statutes of the United States, continues to subsist until
the lode is relocated by another. Nash v. McNamara, 30 Nev. 114, 133, 93 P. 405, 16 L.R.A.
(NS) 168, Am.St.Rep. 694; 2 Lindley on Mines, 3d Ed., sec. 645.
Respondent then relies on Noyes v. Mantle, 127 U.S. 348, 8 S. Ct. 1132, 1134, 32 L.Ed.
168, to support the position of the trial court that the existence of a known vein was
immaterial to the issue where the lode had been located. That case analyzes three situations
involved in placer patent applications with reference to lodes with same. (a) The applicant
may apply for the vein and 25 feet on either side of it, paying therefor $5 an acre, and $2.50
an acre for the placer. (b) Where the vein is known to exist but the applicant does not apply
for same, this is construed as a conclusive declaration that he has no right of possession to
such vein. (c) Where the existence of the vein is not known at the time of the placer patent
application, the patent conveys all valuable mineral and other deposits within its boundaries.
The court then proceeds to say: The section can have no application to lodes or veins within
the boundaries of a placer claim which have been previously located under the law of the
United States, and are in possession of the locators or their assigns; for, as already said, such
locations when perfected under the law are the property of the locators, or parties to whom
the locators have conveyed their interest. (Emphasis supplied.)
We do not find the foregoing statement, when considered in connection with the facts in
that case, as applicable to our present problem. As to the facts, the court said: There is no
pretense in this case that the original locators did not comply with all the requirements of the
law in making the location of the Pay Streak Lode mining claim or that the claim was ever
abandoned or forfeited. They were the discoverers of the claim. They marked its boundaries
by stakes so that they could be readily traced. They posted the required notice which was
duly recorded in compliance with the regulations of the district.
notice which was duly recorded in compliance with the regulations of the district. They had
thus done all that was necessary under the law for the acquisition of an exclusive right to the
possession and enjoyment of the ground. The claim was thenceforth their property. They
needed only a patent of the United States to render their title perfect, and that they could
obtain at any time upon proof of what they had done in locating the claim and of subsequent
expenditures to a specified amount in developing it. (Emphasis supplied.) Here respondent
was not the discoverer of the claim. The placer had been located in 1891 by appellants'
predecessors. So far as concerns the actual ground within the exterior boundaries of the
placer, appellants and their predecessors had since then been virtually continuously in
possession, since 1923 under actual patent from the United States, and actually working the
property at the time of respondent's lode filing in 1955. Neither Knox and Clark, the 1917
locators, nor anyone holding under them was in possession of the asserted lode. Respondent
was not their assign. The evidence presented more than a pretense that the Knox and Clark
claims had been abandoned, and more than a pretense that respondent did not comply with all
the requirements of the law in locating the Pal Lodes. The fundamental requirement of a
discovery is denied, and is the subject of our further discussion infra.
Analyzing Noyes v. Mantle, 127 U.S. 348, 354, 8 S.Ct. 1132, 32 L.Ed. 168, 15 Morr. Min.
Rep. 611, Professor Lindley says: [I]t is quite manifest that the lode was discovered and
located prior to the location of the placer. 2 Lindley on Mines, 3d Ed. 971. Accordingly, in
Noyes v. Mantle, the subsequent placer claimant sought the ground claimed by the prior lode
locator. In the present case the lode locator in 1955 seeks the ground covered by placer
locations since 1891, and held under patent since 1923.
A similar distinction of a situation like the present one from the situation in Noyes v.
Mantle is made in Wilson Creek Cons. M. & M. Co. v. Montgomery, 23 L.D. 476, where the
Secretary of the Interior said: The proposition that any recorded notice of a so-called lode
location is conclusively presumptive of the existence of a valuable lode or vein within its
limits * * * would seem * * * only to be stated to be refuted."
proposition that any recorded notice of a so-called lode location is conclusively presumptive
of the existence of a valuable lode or vein within its limits * * * would seem * * * only to be
stated to be refuted. The opinion then goes on to state that the holding in Noyes v. Mantle
was based upon the following statement by the court: There is no pretense in this case that
the original locators did not comply with all the requirements of the law in making the
location of the Pay Streak lode mining claim, or that the claim was ever abandoned or
forfeited. That situation existed neither in the Wilson Creek case nor in the instant case.
[Headnote 3]
In view of the clear and convincing proof required of the plaintiff under the authorities
herein cited to show the existence of a known lode within the placer at the time of the patent
application as distinguished from the only proof received in this case, namely, the location
certificates filed by Knox and Clark with whom the plaintiff was in no way connected, we
find it unnecessary to discuss the contention of appellants that the issuance of the placer
patent by the land department was an adjudication that no known lode existed and was res
judicata. Such a holding is unnecessary to a determination of this appeal. In fact the cases
cited by appellants in support of this contention for the most part involved elements that are
not present here. We cannot entirely ignore the fact, however, that the land office was alerted
to the fact that not only had an adverse claim been filed but a suit commenced in support
thereof, thus sharpening the requirement of department rules that a field examination be made
to determine the character of the land and to set forth known veins within the placer ground.
[Headnote 4]
In the recent case of Berto v. Wilson, 74 Nev. 126, 324 P.2d 843, we noted the distinction
between two classes of cases in determining the sufficiency of a discovery. There the dispute
was between two locators upon the same lode and application of the liberal rule was
indicated, and it was pointed out that proof of discovery in such case might be wholly
insufficient in cases where the ground is claimed as placer.
indicated, and it was pointed out that proof of discovery in such case might be wholly
insufficient in cases where the ground is claimed as placer. The distinction may be thus
expressed. Where the dispute is between locators on the same lode, a discovery is sufficient if
it will warrant the expenditure of time and money in development to confirm the apparent
existence of values. Where the dispute is between a lode and a prior placer location, the
apparent existence of values must have been confirmed before a discovery of a known lode,
as contemplated by the exclusionary clause of R.S. 2333, can be said to have been made. See
cases cited infra.
In re Valley Lode, 22 L.D. 317, involving a similar conflict to the one before us, the
Secretary of the Interior held: There is no evidence before the Department that a known lode
did exist in the [placer] ground claimed by the Valley within the limits of [placer] mineral
entry 575 at the date of the application for patent therefor. The Department cannot assume
that a known lode does exist simply because the lode location antedates that of the placer,
especially after the placer patent has gone out.
In the dissenting opinion of Mr. Justice Field (who wrote the opinion of the court in Noyes
v. Mantle), in Iron Silver Mining Co. v. Mike & Starr Gold and Silver Mining Co., 143 U.S.
394, 12 S.Ct. 543, 552, 36 L.Ed. 201, 211, it is said: As stated above, there can be no
location of a lode or vein until the discovery of precious metals in it has been had. And then it
is not every vein or lode which may show traces of gold or silver that is exempted from sale
or patent of the ground embracing it, but those only which possess these metals in such
quantity as to enhance the value of the land and invite the expenditure of time and money for
their development. No purpose or policy would be subserved by excepting from sale and
patent veins and lodes yielding no remunerative return for labor expended upon them. Such
exceptions would only be productive of embarrassment to the patentee, without any benefit to
others.
Respondent concedes that there is no evidence of the lode locations existing in 1919
within the boundaries of appellants' placers other than the Knox and Clark certificates of
location and the sundry notices of proof of labor or claims of exemption above described.
of appellants' placers other than the Knox and Clark certificates of location and the sundry
notices of proof of labor or claims of exemption above described. Yet, the validity of the
Knox and Clark locations, sufficient to segregate the land from the public domain, and the
existence of the lodes known as the Alunite, Alunite No. 1, Sulphate and Pacific No. 2
located by Knox and Clark in 1917 both depended upon a valid discovery. Cole v. Ralph, 252
U.S. 286, 40 S.Ct. 321, 328, 64 L.Ed. 567, dealt with the probative force of recitals of
discovery in the recorded locations. The court said: The general rule is that such recitals are
mere ex parte, self-serving declarations on the part of the locators, and not evidence of
discovery. In support of this the court cites: Creede & Cripple Creek Min. & Mill Co. v.
Uinta Tunnel Min. & Transp. Co., 196 U.S. 337, 352, 25 S.Ct. 266, 49 L.Ed. 501, 509;
Lindley on Mines, 3d Ed., sec. 392; Mutchmor v. McCarty, 149 Cal. 603, 607, 87 P. 85;
Strepey v. Stark, 7 Colo. 614, 619, 5 P. 111, 17 Mor. Min. Rep. 28; Magruder v. Oregon &
C.R. Co., 28 Land Dec. 174. The court then adds: This rule is recognized and applied in
Nevada. Fox v. Meyers, 29 Nev. 169, 186, 86 Pac. 793; Round Mountain Min. Co. v. Round
Mountain Sphinx Min. Co., 36 Nev. 543, 560, 138 Pac. 71. In the former case this court,
speaking through Norcross, J., said: Proof of posting a location notice at a certain point,
containing a recital therein that a discovery had there been made * * * would not be evidence
prima facie of a discovery * * *. Judge Norcross, again speaking for the court in the Sphinx
case quoted with approval the following language of Professor Lindley: Discovery is the
most important of all the acts required in the proceedings culminating in a perfected location.
It is the foundation of the right without which all other acts are idle and superfluous.
In Thomas v. South Butte Mining Co., 211 Fed. 105, 107, the Circuit Court of Appeals of
the Ninth Circuit said: * * * the mere fact that mineral lode locations were made is not proof
that the ground on which they were located contained a vein or lode within the meaning of
section 2333 of the Revised Statutes (U.S. Comp. St.
1901, p. 1433) [30 U.S.C.A. 37]. A mere location of an alleged vein or lode is not sufficient
to prove that a vein or lode was known to exist. Migeon v. Montana Central Ry. Co., [9 Cir.]
77 Fed. 249, 23 C.C.A. 156. The lode or vein which is known to exist so as to be excluded
from the patent must be one which contains mineral of such extent and value as to justify
expenditures for the purpose of extracting it. Migeon v. Montana Central Ry. Co., 77 Fed.
249, 23 C.C.A. 156; Casey v. Thieviege, 19 Mont. 342, 48 Pac. 394, 61 Am.St.Rep. 511.
In Clark Montana Realty Co. v. Ferguson, 218 Fed. 959, 963, Judge Bourquin, speaking
for the District Court of the District of Montana, said: If located, in any controversy
involving the respective rights of the lode claimant and the placer patentee, the burden is
upon the lode claimant to prove the lode was known to exist when the placer patent was
applied for. And the proof in effect impeaching the patent proceedings, if not the patent, for
fraud, seeking to withdraw or except from a solemn grant over the seal of the United States
premises prima facie conveyed by it, must be clear and convincing, in quality and quantity
that inspires confidence and produces conviction.
To so establish that a lode was known to exist when the placer patent was applied for, it
must appear that at that time the lode was clearly ascertained and defined, and of such known
extent and content that, in view of all circumstances and conditions affecting its worth, such
as the importance locally attached to like lodes under similar conditions, ease or difficulty of
development, facilities for ore treatment, cost of mining and reducing ores, reasonable
probabilities of development, and the like, it then would have justified location, development,
and exploitation, and because of which it and the area attaching to or excluded with it then
were valuable, and more valuable than for placer mining purposes.
Float, outcrop, lodes, and abandoned lode locations, separately or combined, are not
sufficient to constitute a lode known to exist,' within the exception of a placer patent. In
addition must be the known quality above defined. And the reason is lodes exist throughout
the mining country.
mining country. Not one in hundreds justifies development and proves of value. No reason
exists to except the valueless from placer patents or grants, and such patents issued or grants
made without excluding them prima facie lodes of value did not exist. The issue is
determined now by conditions as they were when the placer patent was applied for, even as
though tried and determined then. Subsequent development and results, however marvelous,
are immaterial * * *. The sanctity of a solemn grant of lands by the United States and the
definiteness and certainty that should attach thereto and the stability of titles evidenced
thereby, can only thus be preserved. See Iron Silver case, 143 U.S. [394] 405, 12 S.Ct. 543,
36 L.Ed. 201; Migeon v. Montana Cent. Railway Co., [9 Cir.] 77 Fed. 249, 256, 23 C.C.A.
156; Thomas v. South Butte Mining Co., 211 Fed. [105] 106, 128 C.C.A. 33; Mason v.
Washington-Butte Mining Co., [9 Cir.] 214 Fed. [32] 34, 130 C.C.A. 426.
See also Migeon v. Montana Central Railway Co., 77 Fed. 249, 257, in which reliance was
unsuccessfully made on Noyes v. Mantle, supra. There, as here, where it was claimed that a
prior location of a lode claim removed it from a placer patent, the court said of the lode: The
owners quit work thereon, and, after they left it, they never bothered themselves about it. See
also McConaghy v. Doyle, 32 Colo. 92, 75 P. 419.
[Headnote 5]
The foregoing authorities refute both contentions of respondent. Under the facts herein
recited, and in the absence of proof of a discovery, the filing of the Knox and Clark 1917
certificates of location did not segregate the ground from the public domain so as to prevent
the United States from issuing its patent in 1923; nor did it prove the existence of a known
lode at the time of the placer patent application in 1919.
Reversed and remanded, with costs, with direction to enter judgment for appellants.
____________
74 Nev. 186, 186 (1958) Pioneer Title v. State Bar
PIONEER TITLE INSURANCE & TRUST COMPANY, a California Corporation,
Appellant, v. STATE BAR OF NEVADA, a Public Corporation, and Harvey D. Dickerson,
Madison B. Graves, E. P. Carville, Orville R. Wilson, James W. Johnson, Jr., William J.
Crowell, Douglas A. Busey, Bryce Rhodes, Bruce Thompson, and William W. Woodburn, as
the Duly Elected, Qualified and Acting Board of Governors of the State Bar of Nevada, and
Individually as Attorneys-at-Law of the State Bar of Nevada, and on Behalf of All Other
Attorneys-at-Law Duly Licensed to Practice Law in the State of Nevada, Respondents.
No. 4039
June 6, 1958. 326 P.2d 408.
Department No. 2.
Proceeding against title company for unauthorized practice of law in execution of certain
instruments in connection with its services as escrow agent in real estate sales. From an
injunction entered by the lower court, the title company appealed. The Supreme Court,
Merrill, J., held that title company, which, in connection with its services as escrow agent in
real estate sales, prepared all instruments necessary to effectuate such transactions, such as
purchase and sale agreements for purchase and sale of real and personal property or both,
deeds, notes, chattel mortgages, trust deeds, assignments, escrow agreements, escrow
instructions, and bills of sale, was engaged in unauthorized practice of law except as to
execution of purchase and sale agreements and as to escrow agreements and escrow
instructions, when company, with assistance and advice of its attorney, was one which judged
legal sufficiency of instruments to accomplish wishes of parties.
Judgment modified; as modified, judgment affirmed.
John S. Halley, of Reno; McNamee & McNamee, of Las Vegas, and Allen C. McGurk, of
San Bernardino, California, for Appellant.
John W. Bonner, Ralston O. Hawkins, John F. Mendoza, Charles L. Garner, and Jack E.
Butler, all of Las Vegas, for Respondents.
Attorney and Client.
Title company, which, in connection with its services as escrow agent in real estate sales, prepared all
instruments necessary to effectuate such transactions, such as purchase and sale agreements for purchase
and sale of real and personal property or both, deeds, notes, chattel mortgages, trust deeds, assignments,
escrow agreements, escrow instructions, and bills of sale, was engaged in unauthorized practice of law
except as to execution of purchase and sale agreements for purchase and sale of real and personal
property and as to escrow agreements and escrow instructions, when company, with assistance and advice
of its attorney, was the one which judged legal sufficiency of instruments to accomplish wishes of parties.
OPINION
This is an appeal from an injunction against unauthorized practice of the law.
The State Bar of Nevada has proceeded against the Pioneer Title Company of Las Vegas
charging that the company, in connection with its services as escrow agent in real estate sales,
itself prepares all instruments necessary to effectuate such transactions. The trial court,
finding in accordance with the position of the state bar, has enjoined the title company from
the preparation of such instruments. The instruments specified in the injunction are the
following: purchase and sale agreements for the purchase and sale of real and personal
property, or both, deeds, notes, chattel mortgages, trust deeds, assignments, escrow
agreements, escrow instructions, and bills of sale. The company also was enjoined from
directly or indirectly holding itself out to the public by offering to perform any of the
services hereinabove described.
From this injunction the present appeal is taken by the title company. It contends that
under the facts of the case its services in connection with the preparation of the instruments in
question do not constitute unauthorized practice of the law.
The record discloses the procedure followed by the title company in the preparation of the
instruments in question. In all cases the preparation of instruments was in connection with an
escrow handled by the company and that escrow itself was in connection with an examination
of title by the company. No separate charge was made for its services. For the purposes of our
decision the following typical case may be regarded as establishing the practice which we
must here examine.
An owner and a purchaser were brought to the title company office by their realtor. They
had already agreed upon the terms for purchase and sale of residence property and their
agreement was evidenced by an earnest money receipt. The parties, together with the realtor,
conferred with an escrow officer. In response to his questions information was given by the
parties as to the terms of their agreement. This information was taken down by the escrow
officer upon a work sheet. When all necessary information had been secured, the work sheet
was given to one of the company stenographers who typed it up on a printed form of escrow
instructions. This was brought back to conference, checked by all present and signed by the
parties. No request was made of the escrow officer for legal advice and no legal advice was
given. (The company's employees have been instructed not to answer any questions upon
matters of law, but to refer the parties to their attorneys as to all such matters.) The parties
were advised that in order to carry out the transaction certain legal instruments would have to
be prepared and signed by them: a deed, a bill of sale of personal property, a note for the
unpaid balance of the purchase price, a trust deed and chattel mortgage to secure the note.
They were asked whether either of them would prefer to have these instruments prepared by
his own attorney. They were advised that if not, the documents would be prepared by the
company stenographers and checked either by one of the parties' attorneys or by the company
attorney, whichever way the parties wished it. The parties stated that they would be satisfied
to have the instruments prepared by the company stenographers and checked by the
company attorney.
that they would be satisfied to have the instruments prepared by the company stenographers
and checked by the company attorney. The instruments were then prepared by the company
stenographers from printed forms which have been in use by the company for many years and
which were themselves prepared by the company attorney as suitable for use in such cases as
this. The company attorney, as was his practice each day, came by the company office. He
picked up the file containing the instruments involved in the case and checked them for their
legal sufficiency. He found them in order and made no suggestions for changes.
We have concluded that while the procedures followed by the title company for the most
part are acceptable, still the injunction must be affirmed. Since it appears from our opinion
which follows that the effect of the injunction may be avoided by the company with but
minor changes in its established procedures, our decision may seem to amount to a splitting
of hairs. We do not so regard it. Trivial though the refinements in procedure may seem upon
their face, the fact is that they are not trivial for the principles which require them are of
considerable public importance. To compromise those principles, in order to obtain what may
seem a more practical result, would be to place those principles in jeopardy. This we do not
choose to do.
The practice of law by others than members of the State Bar of Nevada is forbidden by
statute. NRS 7.600. The reason is not the protection of the lawyer against lay competition but
the protection of the public.
The rights bestowed upon us by law are to an extent the gauge of our freedom and of our
civilized progress. They must be prized as such and the reciprocal obligation to honor the
rights of others must be respected. Due respect for these rights and obligations requires that at
all times they be susceptible of definition. This proposition lies at the very foundation of our
system of law. The public interest therefore requires that in the securing of professional
advice and assistance upon matters affecting one's legal rights one must have assurance of
competence and integrity and must enjoy freedom of full disclosure with complete
confidence in the undivided allegiance of one's counsellor in the definition and assertion
of the rights in question.
matters affecting one's legal rights one must have assurance of competence and integrity and
must enjoy freedom of full disclosure with complete confidence in the undivided allegiance
of one's counsellor in the definition and assertion of the rights in question.
It is to meet the requirements of public interest that high standards of training and
competence are fixed for those who would practice law and that they practice under a strict
code of professional ethics and are made answerable to the courts as court officers for the
manner in which they meet their professional obligations. The legal profession has, through
acceptance of its obligations, traditionally become imbued with a spirit of public service.
The bench and bar may not lightly disregard these public obligations. Nor, in default of
duty, may they casually permit the public to be led to rely upon the counselling, in matters of
law, of persons not subject to the standards and discipline of the attorney as imposed by law
for the public protection.
These principles must remain constant. The circumstances which call for creation of the
attorney-client relationship are, however, subject to continuing change. As civilization
becomes more complex we find that counselling becomes important in more and more new
fields involving legal rights. Conversely we find that the public becomes accustomed to
certain areas of transaction and that as transactions in those areas become standardized, legal
counselling is no longer generally regarded as a practical necessity or a reasonable precaution.
Contracts of insurance and of purchase and sale, the borrowing of money and the extension of
credit all are now a familiar every-day experience to thousands of laymen. The nature of the
rights and obligations thereby created have become familiar lay concepts. Furthermore, as the
public in standardized areas of transaction, becomes familiar with the nature of the rights and
obligations which are created, it becomes accustomed to the standardized form of the
instruments involved. Custom serves to standardize both the rights and obligations and the
form of instrument by which they are created.
The need for legal counselling in any transaction is a question which must be decided by
the person whose legal rights are involved. If, in his judgment, he does not need advice as to
his legal rights or assistance with respect to them, no one can complain of his self-reliance.
Such a case must be a true case of self-reliance, however. If reliance be placed upon the
judgment of others as to his legal rights, the case is different. If advice or judgment is
professionally given by one not a party to the transaction and not an attorney, a problem in
unauthorized practice is presented.
In the instant case it must be borne in mind that the title company has entered the picture
after the parties have committed themselves to the terms of their agreement. This, so far as
these litigants are concerned and so far as the record discloses, they have themselves chosen
to do without the benefit of legal counsel. We are not here concerned, then, with the manner
in which the parties have negotiated the terms of their transaction of purchase and sale. We
are not concerned with the fact that in that negotiation they were not represented by counsel.
We are, in this case, concerned solely with the drafting of the instruments by which their
agreement has been effectuated.
The title company first contends that its services in connection with the drafting of the
instruments did not constitute the practice of law for the reason that they were purely clerical.
It emphasizes that the forms were standardized; that its services consisted solely in the filling
in of blanks in standard printed forms such as could be obtained at any stationery store; that
the services which it performed could as well have been performed by any competent public
stenographer.
So far as the services performed by the escrow officer and the company stenographer are
concerned, we are in agreement with the company's position. The drafting of the escrow
instructions was but the recording of the parties' agreement as it was presented to the officer
by the parties themselves. The officer did no more than ascertain the terms of the agreement.
He did not guide it or suggest it or advise upon it. Nor did the selection of the instruments to
be used involve an exercise of legal judgment.
the instruments to be used involve an exercise of legal judgment. The typical transaction has
become so standardized that the type of instrument to all intents and purposes has become
fixed by custom. The same is true of the form of instruments used. This is strengthened by the
fact that these or similar forms have been used by this company for many years. The State Bar
has not attacked the instruments as to form.
The difficulty with the company's position is that its services did not end with the clerical
preparation of the instruments by the escrow officer and stenographer. It was the company
itself which judged of the legal sufficiency of the instruments to accomplish the agreement of
the parties. In the drafting of any instrument, simple or complex, this exercise of judgment
distinguishes the legal from the clerical service. Title Guaranty Co. v. Denver Bar
Association, 135 Colo. 423, 312 P.2d 1011; Clark v. Reardon, 231 Mo.App. 666, 104 S.W.2d
407.
We may note that notwithstanding the standardization of procedures, self-reliance upon
questions involving one's legal rights in the acquisition of a home is not yet to be regarded as
common. The average layman, in a transaction of such comparative importance to him,
wishes the assurance of a competent adviser that all is properly in order.
This, then, was not a case of self-reliance. It is clear from the record that the company not
only exercised its judgment in this regard but invited the parties to rely on it. It is clear that
there was such reliance. The parties were assured that the transaction in all respects would be
legally effective; that the company would see to that. This assurance appears not only from
testimony as to the procedure followed but also from evidence of television advertising
employed by the company.
It is no escape that the company, through its obligations as insurer, might well be liable for
lack of legality with respect to title. This does not resolve the case into one of the company
acting for itself. It is one thing to pass judgment for others as to the legality of their
transaction. It is quite another to indemnify them against loss through failure of legality.
through failure of legality. Insurance may well be reassuring; but it is no complete substitute
for legality. The parties wish to avoid all legal trouble; even trouble with their insurer. They
wish peaceful legality and not a monetary substitute.
As to any independent obligations the company may have had as escrow holder, we may
simply note that one may not legitimatize his otherwise unlawful practice of the law by
contractually obligating himself to achieve legal effectiveness. This is but a contract to pass
legal judgment; that is, a contract to practice law.
In the instant case judgment as to legal sufficiency was, it is true, made by an attorney. The
problem of lack of competence is not, therefore, present. We are, however, still faced with a
complete lack of the essential attorney-client relationship in connection with the legal rights
of the parties. The company attorney's concern with the legality of the instruments was from
the point of view of the company's rights and obligations and not from the point of view of
the rights and obligations of the parties to the transaction. The attorney was not advised that
he was to serve as attorney for the parties and was to examine the instruments with an eye to
the legal rights of those parties as his own clients independent of the company. Had this been
done, in the light of the parties' apparent consent that the company attorney act as their own
attorney and in the absence of any conflict of interest in the drafting of the instruments, the
case might well be different.
It was the company, then, with the assistance and advice of its attorney, which was judging
of the legal sufficiency of the instruments to accomplish the wishes of the parties. This
constituted the practice of law. Title Guaranty Co. v. Denver Bar Association, supra; Clark v.
Reardon, supra.
This does not, however, apply to the escrow instructions. No judgment as to legal
effectiveness was there involved. The services rendered were purely clerical. Further, as the
company points out on this appeal, there is no evidence that the company prepared any
purchase and sale agreements or escrow agreements, other than through the instructions
themselves.
and sale agreements or escrow agreements, other than through the instructions themselves. To
the contrary, the record would support the conclusion that they did not prepare such
agreements. As to deeds, notes, chattel mortgages, trust deeds, assignments and bills of sale,
however, the company was engaged in the practice of law through the exercise of its
judgment, on behalf of the parties to the transaction, as to the legal sufficiency of the
instruments to accomplish the wishes of the parties.
The company next contends that since the legal services performed were simple rather
than complex and were incidental to its business, its conduct should not be held to be
unlawful. Many authorities are cited in support of this contention, all of which have had our
careful study.
It may be conceded that professional advice or exercise of judgment upon matters of law
by one neither a party to the transaction nor an attorney, does not in every case constitute
unauthorized practice of the law. There are recognized exceptions which are themselves
founded upon the public interest. These exceptions are confined to cases of simple rather than
complex legal services rendered in connection with a lay business and in all such cases the
key to the public interest is practical necessity.
One class of cases involves the performing of legitimate lay services requiring counselling
in areas not essentially legal, such as investments, insurance and tax accounting. Such
counselling may well require, if performance is to be substantially effective, the incidental
counselling upon questions of law. It would not be in the public interest to prevent the lay
counsellor from providing a legitimate public service simply because the performance of that
service requires him to counsel on legal questions incidentally connected with his lay
specialty. Petition of Ingham County Bar Association, 342 Mich. 214, 69 N.W.2d 713, 55
A.L.R.2d 777; Lowell Bar Association v. Loeb, 315 Mass. 176, 52 N.E.2d 27; Cowern v.
Nelson, 207 Minn. 642, 290 N.W. 795.
But in the public interest in such cases the question should be whether the incidental legal
services are necessary to the providing of what is essentially lay counselling. It should not be
enough that certain legal services can be said to be incidental or reasonably connected. It is
not the public convenience in the providing of those legal services with which we are
concerned in such a case. Rather it is that the lay services can continue to be effectively given
in the public interest.
In another class of cases the practical necessity apparently lies in a comparative lack of
lawyers in the light of the volume of transactions of the type requiring the simple legal
services. It is a situation where the legal profession is unable to provide the public with the
simple services necessary to the transaction. Petition of Ingham County Bar Association,
supra. As stated in Lowell Bar Association v. Loeb, supra, The actual practices of the
community have an important bearing on the scope of the practice of law.
The case before us cannot be said to fall within either class. The legal services provided by
the title company were, it is true, incidental to its business. That incidence, however, cannot
be said to partake of the practical necessity which we regard as essential if an exception is to
be made in the public interest. Furthermore it cannot be said that the legal profession is
unable to provide the necessary legal services. The very procedures followed by the company
disprove this.
The title company was, then, engaged in unauthorized practice of the law.
For the reasons hereinbefore discussed, the injunction issued below is modified to strike
therefrom its reference to purchase and sale agreements for the purchase and sale of real and
personal property, or both and to escrow agreements and escrow instructions. As so
modified, judgment is affirmed with costs to respondent.
____________
74 Nev. 196, 196 (1958) Wantz v. Redfield
EMERY WANTZ, Appellant, v.
L. V. REDFIELD, Respondent.
No. 4066
June 9, 1958. 326 P.2d 413.
Appeal from the Second Judicial District Court, Washoe County; Gordon W. Rice, Judge,
Department No. 3.
Conversion action against one who had filed third party claim against property which had
been attached and taken into sheriff's possession, and who had received possession of the
property, but who was later determined not to be the owner of the property. The trial court
entered judgment for defendant, and plaintiff appealed. The Supreme Court, Merrill, J., held
that assertion of the third-party claim and acceptance of possession of the property did not
constitute a conversion of the property.
Judgment affirmed.
Stewart, Horton and Campbell, of Reno, for Appellant.
Peter Echeverria, of Reno, for Respondent.
1. Trover and Conversion.
Assertion of third-party claim against property which had been attached and had been taken into
possession by the sheriff constituted a resort to judicial process for the determination of a disputed title,
and such assertion and the acceptance of possession of the property, when plaintiff in main action failed to
file bond, did not constitute a conversion of the property by third-party claimant. NRS 31.070.
2. Trover and Conversion.
A conversion is a distinct act of dominion wrongfully exerted over another's personalty in denial of, or
inconsistent with, his title or rights therein or in derogation, exclusion, or defiance of such title or rights.
3. Torts.
It is not wrongful or tortious to engage in a dispute as to title or to submit such dispute to the courts, and
one does not become a tortfeasor merely by having judgment entered against him in an action brought in
good faith.
OPINION
This is an action for conversion brought by the appellant as plaintiff. From judgment for
the defendant this appeal is taken. The question involved is whether the assertion of a third
party claim against property held under attachment and the accepting of possession of such
property can be held to constitute conversion when it is subsequently determined that the
claimant was not the owner.
An action was brought by appellant as plaintiff against certain affiliated Reno construction
corporations and property was attached and taken into possession by the sheriff of Washoe
County. Respondent then filed a third party claim asserting that he was the owner of the
property attached. Pursuant to the provisions of NRS 31.070, the appellant having failed to
post bond for continued possession of the sheriff, the property was delivered to respondent as
third party claimant. Under provisions of the same statute, appellant, as plaintiff, filed a
motion to determine title to the property. Hearing was had and it was judicially determined
that the respondent was not the owner but that the defendants were the owners. Judgment was
then rendered in favor of appellant and against the defendants in the principal action.
[Headnote 1]
It does not appear that any attempt was ever made to levy execution against the property
involved in order to satisfy judgment, although the property was still available within the
county. Instead this action was brought by appellant as plaintiff. Appellant in this action
contends that respondent, through wrongful assertion of a third party claim, coupled with his
having accepted possession of the property so wrongfully claimed, had been guilty of
converting the property to his own use and was liable to appellant for the reasonable value of
the property converted to the extent necessary to satisfy his judgment in the former action.
Judgment below was rendered in favor of defendant upon the ground that the facts did not
constitute a case of conversion.
facts did not constitute a case of conversion. This was not error.
[Headnote 2]
A conversion is defined as a distinct act of dominion wrongfully exerted over another's
personal property in denial of, or inconsistent with his title or rights therein or in derogation,
exclusion, or defiance of such title or rights. 53 Am.Jur. 819. Moreover, an act, to be a
conversion, must be essentially tortious; a conversion imports an unlawful act, or an act
which cannot be justified or excused in law. Ibid. at page 820.
[Headnote 3]
In this case the assertion of the third party claim was but resort to the judicial process for
determination of a title in dispute. In the absence of malice, which the record here does not
reveal, it is not wrongful or tortious to engage in a dispute as to title nor to submit that dispute
to the courts. Courts exist for the purpose of resolving disputes. One does not become a
tortfeasor merely by having judgment entered against him in an action brought in good faith.
Appellant concedes that the filing of the third party claim was not a conversion in itself,
but asserts that the conversion occurred at the time respondent took possession of the
property. For authority, he cites 53 Am.Jur. 824 to the effect that the unlawful taking of goods
out of the possession of the owner with intent to convert them to the use of the taker is clearly
a conversion, and that the fact that the defendant acts by mistake does not preclude his
liability.
In this case the taking was not unlawful, however. The delivery to the third party claimant
was made pursuant to the provisions of NRS 31.070 to the effect that the claimant should
have possession, pending a determination of title, in absence of a bond posted by the plaintiff.
Therefore the acceptance of possession was a lawful procedural step in the process of
determining title and was not an exercise of the rights of ownership adverse to the rights or
title of the parties to the action.
Appellant relies upon McCaffey Canning Co. v. Bank of America, 109 Cal.App.
of America, 109 Cal.App. 415, 294 P. 45. That case, as does this one, involved attachment,
assertion of a third party claim, judgment in favor of the attaching plaintiff and a
determination of title adverse to the third party claimant. The claimant was held guilty of
conversion. The distinction between that case and the one before us lies in the fact that the
claimant in the McCaffey case, after taking possession, had sold the property claimed and
pocketed the proceeds of the sale. We can conceive of no clearer example of an exercise of
the rights of ownership sufficient to constitute conversion. Since the respondent in the present
case has apparently done nothing other than to hold the property pending the outcome of the
hearing to determine title to it, the McCaffey case is not authority for the position urged by
appellants.
Affirmed.
____________
74 Nev. 199, 199 (1958) Gen. Elec. Credit Corp. v. Andreen
GENERAL ELECTRIC CREDIT CORPORATION, Appellant, v. ROBERT E. ANDREEN,
Respondent.
No. 4032
June 13, 1958. 326 P.2d 731.
Appeal from judgment of Eighth Judicial District Court, Clark County; Frank McNamee,
Action by seller's assignee of interest in conditional sales contract to recover property sold
at tax sale. The trial court rendered summary judgment for defendant, and plaintiff appealed.
The Supreme Court, Badt., C. J., held that personal property sold under a conditional sales
contract which retained title in the seller was assessable to the buyer in possession.
Affirmed.
(Petition for Rehearing denied July 10, 1958.)
Toy R. Gregory, of Las Vegas, for Appellant.
Guild, Busey & Guild, of Reno, for Respondent.
1. Taxation.
Personal property sold under a conditional sales contract which retained title in the seller was assessable
to the buyer in possession. NRS 361.010 et seq., 361.245, 361.260, 361.265; Const. art. 10, 1.
2. Taxation.
Where two persons, under a trade name, purchased personal property under conditional sales contract,
property was properly assessed to the trade name, as a partnership, comprising these two purchasers and
others who later joined partnership.
3. Taxation.
That purchasers of personal property under conditional sales contract had defaulted, giving the seller an
option, which he had not exercised, of recovering the property, did not prevent assessment of the property
to the purchasers.
4. Taxation.
That restaurant equipment was not listed, itemized and valued by item by the assessor did not vitiate the
assessment and tax sale.
5. Sales.
Conditional sales contracts are not required to be recorded.
6. Taxation.
Inadequacy of price received at tax sale of personalty did not vitiate sale.
OPINION
The main question presented on this appeal is whether, under our statute requiring
personal property to be assessed to the owner, an assessment of sundry articles of kitchen
equipment were properly assessed to a purchaser in possession under a conditional sales
contract retaining title in the vendor. The district court answered this question in the
affirmative and our conclusion is that it was correct in so doing. The question is one of first
impression in this state. Other questions raised are also disposed of.
The case went to the district court on an agreed statement of facts, from which the
following appears. On August 7, 1954, Harry Elster Co. entered into a conditional sale
contract with Fred Trevillian and Sol Gershenhorn, doing business as Desert Spa, for the
purchase of certain kitchen equipment, having an unpaid balance of $53,760, payable in
monthly installments.
August 7, 1954, Harry Elster Co. entered into a conditional sale contract with Fred Trevillian
and Sol Gershenhorn, doing business as Desert Spa, for the purchase of certain kitchen
equipment, having an unpaid balance of $53,760, payable in monthly installments. On
October 27, 1954, a similar contract for further equipment was entered into with an unpaid
balance of $26,017.60, likewise payable in monthly installments. The contracts were assigned
to General Electric Credit Corporation. The assessor of Clark County assessed the described
equipment, together with other personal property, including gambling tables, chairs and
cocktail stools to Desert Spa: TenantsJack Rosen, Fred Trevillian, D. H. Caplow, Abe
Toberoff, Fred Weichman, Sol Gershenhorn, Charles Marcus and Dr. Lenne. The contracts
provided that title was to remain in the vendor until all installments were paid, that the
vendees were to pay all taxes, and that in the event of default the vendor might repossess the
property, sue for the entire balance due, etc. Taxes for 1955 and 1956 being unpaid, the
assessor seized the property at the Desert Spa, and offered the same for sale, piece by piece,
until a sufficient sum had been bid by the defendant to pay the delinquent taxes, to wit,
$6,125. The bidding was engaged in by one other bidder and the defendant, who paid the
amount to the county assessor and received a certificate of sale. This occurred May 25, 1956.
On the preceding day appellant learned that the property was to be sold at tax sale.
Immediately following the sale and on the same date plaintiff commenced its action in claim
and delivery, and the sheriff, pursuant thereto, seized that part of the property located on the
Desert Spa premises, and held the same pending outcome of the action. At all times following
the execution of the contracts the Desert Spa, a partnership, was in possession of the personal
property covered thereby and, though the partnership was in default under the contracts, the
plaintiff had never exercised its option to repossess the same.
Under such statement of facts, which contained sundry additional matters, both parties
moved for summary judgment.
judgment. Plaintiff's motion was denied and defendant's motion granted.
Article X, section 1 of the state constitution, provides in part: The legislature shall
provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe
such regulations as shall secure a just valuation for taxation of all property, real, personal and
possessory * * *. Certain exemptions are provided and no taxable property may be exempted
except for the purposes stated. State v. Carson City Savings Bank, 17 Nev. 146, 30 P. 703.
The revenue act of 1953, Chapter 361 of NRS, provides, among other things that all
property of every kind and nature whatsoever within this state shall be subject to taxation,
with certain exceptions; and that personal property means and includes all property of
whatever kind or nature not included in the term real estate as that term is defined in the
act.
The act requires the county assessor between July 1 and December 31 in each year to
ascertain by diligent inquiry and examination all real and personal property in the county
subject to taxation, and the names of the owners and to determine the cash value of such
property and to list and assess the same to the person, firm, corporation, association or
company owning it. NRS 361.260. If the name of an absent owner is known to the assessor,
the property must be assessed in his or her name; if unknown to the assessor, the property
shall be assessed to unknown owner,' but no mistake heretofore or hereafter made in the
name of the owner or the supposed owner of real property shall render the assessment or any
sale of such property for taxes invalid. NRS 361.265. He is also required to demand of each
owner a statement of all the real estate and personal property within the county owned or
claimed by such persons.
Section 12 provides: When personal property is mortgaged or pledged it shall, for the
purposes of taxation, be deemed the property of the person who has possession thereof. NRS
361.245.
Appellant contends that not only does the statute clearly require the property to be assessed
to the owner, which normally means the person having the legal title, but that it
emphasizes this requirement by requiring an assessment "to unknown owner" where the
owner is unknown, thus precluding an assessment to the person in possession.
which normally means the person having the legal title, but that it emphasizes this
requirement by requiring an assessment to unknown owner where the owner is unknown,
thus precluding an assessment to the person in possession. He urges that this construction of
the word owner is further strengthened by section 12 by permitting assessment to the
person in possession thereof where the property is subject to a mortgage or pledge; that if
the word owner was intended to include the person in possession in all cases there would
have been no reason for the adoption of section 12; that under the rule of construction
expressio unius est exclusio alterius, the property which could be assessed to the person in
possession was limited to personal property subject to a mortgage or pledge.
In response to these general contentions, the respondent refers to numerous cases from
California, Arizona, Missouri, Minnesota, Georgia, Nebraska, Iowa, Alabama, Oklahoma,
Kansas, Virginia, Washington, New York, Texas, Arkansas, Illinois, Wisconsin, Vermont,
Kentucky, Michigan and other states, Annotation 116 A.L.R. 325 under title Who is liable
for tax in case of conditional sale or option for purchase of personal property, also statement
in 27 A. & E. Enc. L., 2d Ed., 678.
Virtually all of these authorities hold that when a statute requires that property be assessed
to the owner, it means the general and beneficial ownerthe person whose interest is
primarily one of possession and enjoyment in contemplation of an ultimate absolute
ownershipand not the person who retains the legal title and does not contemplate the use or
enjoyment of the property as such but holds his title primarily as the means of enforcement of
the payment of the balance of the contract price.
In reply to this array of authorities, appellant has painstakingly analyzed them one by one
and has arrived at the conclusion that in each case the statute definitely authorized an
assessment to the person in charge or possession of the property, or that the decision fails to
quote the statute in question, thus removing it as authority in the instant case, or that the
statute lacked the Nevada clause that mortgaged or pledged property be deemed the
property of the person in possession.
Nevada clause that mortgaged or pledged property be deemed the property of the person in
possession. It is true that in a great many of the cases cited by respondent the distinctions
pointed out do exist. In our opinion, however, they are not for that reason deprived of their
authority for the conclusion that under conditional sales contracts the property is owned by
and thus properly assessed to the purchaser. In California, for example, in the case of RCA
Photophone v. Huffman, 5 Cal.App.2d 401, 42 P.2d 1059, the court was confronted with the
anomalous situation where the assessment was lawfully made, under the statute, against a
person in lawful possession. The assessor under the statute was authorized to seize and sell
only the personal property owned by the person against whom the tax was assessed, and was
not expressly authorized to seize and sell property assessed to its lawful possessor. There was
thus squarely before the court the same necessity that confronts us in this appealthe
necessity of determining whether the contracting purchaser was the owner of the property.
The California court held that he was, as one who had dominion of the property, which he has
the right to enjoy and to do with as he pleases. The court then cites the decisions of a great
many of the states supporting the conclusion that the terms owner and owned may be so
defined as to include a person possessing such interest in the property that he has lawful
possession of it and may include others than the possessor of the legal title.
In Automatic Voting Mach. Corp. v. Maricopa County, 50 Ariz. 211, 70 P.2d 447, 449,
116 A.L.R. 320, the court held that under conditional sales contracts, the property covered is
the property of the buyer and not of the seller, holding that the decided weight of authority is
to that effect.
In Municipal Acceptance Corporation v. Canole, 342 Mo. 1170, 119 S.W.2d 820, the court
reviewed the authorities, found two cases holding that taxes should be assessed against the
seller, three cases holding that the authorities may proceed against either the conditional seller
or buyer but the weight of authority to the effect that the purchaser in possession is the party
liable. It found the last view to be the correct one, referring particularly to the reasoning
found in Wells v. Mayor, etc.,
found the last view to be the correct one, referring particularly to the reasoning found in
Wells v. Mayor, etc., City of Savannah, 87 Ga. 397, 13 S.E. 442: The value of property
consists in its use, and he who owns the use forever, though it be on a condition subsequent,
is the true owner of the property for the time being.' Citing another leading case, State v.
White Furniture Co., 206 Ala. 575, 90 So. 896, the court said: When a statute requires that
property be assessed to the owner, we think it means the general and beneficial ownerthat
is, the person whose interest is primarily one of possession and enjoyment in contemplation
of an ultimate absolute ownershipand not the person whose interest is primarily in the
enforcement of a collateral pecuniary claim, and does not contemplate the use or enjoyment
of the property as such.
[Headnote 1]
It is unnecessary to prolong the discussion of this point or to cite further cases. Most of
them will be found in the several cases hereinabove cited. In virtually all of them (regardless
of the fact that in many the statute permitted assessment to the person in possession) it
became necessary to determine that the contracting vendee was the owner, and they so held.
We see no reason for departing from this overwhelming weight of authority. To hold
otherwise, under our statutory requirement that property be assessed to the owner, would
result in an intolerable and thoroughly impracticable situation. Thousands of articles of
personal property are sold every year under such contractselectric stoves, washing
machines, refrigerators, deepfreeze equipment, radios, television sets, and many other
articles, not to mention automobiles, are thus sold. For the assessor to ferret out the names of
the owners of the legal title or to assess all of such articles in thousands of households to
unknown owner would be equally impracticable. The property itself is subject to taxation.
The legal owner knows this. As in the present instance the contract almost invariably requires
the purchaser to pay the taxes. Such taxes are a primary lien, enforceable by seizure and
sale.
enforceable by seizure and sale. Both constitutional and statutory requirements for equal
taxation compel a reasonable and practical method for making all property share, through
taxation, in the expense of government. The contention that the assessment of the property
here involved was unlawful because it was assessed to the contracting vendee in possession,
under statutory requirement that it be assessed to the owner, is without merit.
Appellant contends that section 12 of the revenue act does compel a contrary conclusion.
That section provides: When personal property is mortgaged or pledged it shall, for the
purpose of taxation, be deemed the property of the person who has possession thereof. It is
contended that the expression of this single exception compels the conclusion that no other
exceptions, and particularly the exception of a contracting vendee in possession, were or was
intended by the legislature. The purpose of the exception of pledged or mortgaged personal
property seems to us clear enough without giving it that effect. A pledgee is never the owner
but is always in possession. A lawful assessment to the pledgee, under the statutory
requirement of assessment to the owner, required a special provision. The same is true with
respect to a chattel mortgagee in possession, who, under our statute, is only the owner of a
lien on the property to secure payment of his debt. Streeter v. Johnson, 23 Nev. 194, 44 P.
819. As we have seen, such is not the case with reference to a contracting purchaser who, for
purposes of taxation, may be considered the owner.
[Headnote 2]
Defendant further contends that as appellants Trivillian and Gershenhorn, under the trade
name of The Desert Spa, were the contracting purchasers, the assessment to the Desert Spa,
a partnership, comprising such two purchasers and six others was invalid. The stipulation of
agreed facts was that the plaintiff was the holder of the conditional sales contract covering the
property sold to the Desert Spa, a partnership and that the property was assessed to the
Desert Spa, a partnership, comprising the eight named copartners, and that at all times
involved "said Desert Spa, a partnership, was in possession."
and that at all times involved said Desert Spa, a partnership, was in possession. We do not
consider it important to explore further into the Desert Spa partnership to inquire what
additional partners were taken in or what instruments of transfer or assignment may have
been executed in the premises. These were details which the parties apparently did not
consider of importance in entering into their stipulation of facts.
For its next assignment of error appellant calls attention to the provision of the revenue act
hereinabove quoted to the effect that no mistake in the name of the owner or supposed owner
of real property shall render the assessment or sale invalid. He argues that this leaves open
the right to attack the validity of the assessment where there is a mistake in the name of the
owner of personal property, and then cites a number of cases in which tax assessments and
sales of personal property have been invalidated for even slight mistakes in the name of the
owner. For the reasons assigned in the last preceding paragraph, we see no merit in this
contention.
[Headnote 3]
It is next contended by appellant that the tax sale was void because at the time of the
assessment the purchasers were in default in their payments and, therefore, held the property
only at sufferance. The contract provides that in the event of default the seller may at his
option take possession of the property. The seller had, however, not exercised this option, but
permitted the buyers to remain in possession. Under these circumstances it was not error for
the trial court to hold that the status of the buyers as owners for the purpose of assessment and
taxation had not been terminated by the bare default in payment. State v. White Furniture Co.,
206 Ala. 575, 90 So. 896; Cownie v. Local Board of Review, 235 Iowa 318, 16 N.W.2d 592.
[Headnotes 4, 5]
Appellant next contends that the assessment and sale were void because the items of
property were not separately listed, itemized and valued, thus rendering it impossible to
ascertain the amount of the tax that was due on the property which was subject to appellant's
sale contract and thus prevented payment of the tax on such property without paying the
tax on all of the property of the partnership which was assessed."
sale contract and thus prevented payment of the tax on such property without paying the tax
on all of the property of the partnership which was assessed. If such uncertainty resulted, the
assessor could not resolve it. Conditional sales contracts are not required to be recorded in
Nevada. Appellant never offered or attempted to pay the taxes upon any item of the property
offered for sale. It was advised of the sale the day before it took place. Notice of the seizure
had been posted as required by law. The property was sold piece by piece, at competitive
bidding, until a sufficient sum had been bid to pay off the delinquent taxes. The contention is
not sound.
[Headnote 6]
It is finally contended that the sale is void because the consideration was grossly
inadequate. The actual value at the time of sale does not appear, although the record shows
that the aggregate purchase price named in the two contracts was over $111,000, while the
price bid in at the tax sale was $6,125. It is almost universally held, however, that the
inadequacy of the price received is no ground for invalidating the sale. RCA Photophone v.
Huffman, supra; J. K. Lumber Co. v. Ash, 104 Wash. 388, 176 P. 550.
Other matters discussed in appellant's briefs and oral argument have received our
consideration, but do not require further comment.
____________
74 Nev. 209, 209 (1958) Nev. Industrial Comm'n v. Frosig
NEVADA INDUSTRIAL COMMISSION, Appellant, v.
MAMIE MAY FROSIG, a Widow, Respondent.
No. 4056
June 16, 1958. 326 P.2d 736.
Department No. 3.
Proceeding by widow of deceased brickyard employee for death benefits. The Industrial
Commission appealed from judgment of the trial court for death benefits in favor of widow.
The Supreme Court held that record supported findings that deceased was suffering from
silicosis at time of death and such disease was a contributing cause of death.
Judgment affirmed.
Paul D. Laxalt, of Carson City, for Appellant.
William J. Raggio, of Reno, for Respondent.
Workmen's Compensation.
In proceeding by widow of deceased brickyard employee for death benefits, record supported findings
that deceased was suffering from silicosis as defined by statute at time of death, and that such condition
was a contributing cause thereto. NRS 617.140.
OPINION
Per Curiam:
This appeal is taken by the Nevada Industrial Commission from judgment for death
benefits in favor of the widow of a deceased workman. The sole question upon this appeal is
whether the record provides support for the court's finding that the workman's death had
resulted from occupational disease.
The widow contends that death resulted from silicosis as a result of years of exposure to
silica dust in the course of employment by a brick manufacturing company.
Silicosis is specified in the Industrial Insurance Act as an occupational disease for which
compensation is payable.
an occupational disease for which compensation is payable. It is defined as follows: NRS
617.140. Silicosis' shall mean a disease of the lungs caused by breathing silica dust (silicon
dioxide) producing fibrous nodules, distributed through the lungs and demonstrated by X-ray
examination or by autopsy.
Compensation for occupational disease is not, of course, intended to provide a death
benefit for everyone who, during his lifetime, has exposed himself to an industrial hazard. It
is intended to benefit those who died as a result of the industrial hazard. Two questions are
thus presented: (1) Whether silicosis as defined by statute existed; and (2) Whether death
resulted therefrom. Although evidence upon these issues is uncertain there is testimony to
support the court's findings in both respects and to justify the manner in which the court
resolved the uncertainty.
As to the existence of silicosis as defined by NRS 617.140, the appellant contends that the
statutory language, producing fibrous nodules, must be interpreted to mean that within the
meaning of the legislature silicosis does not exist unless the fibrous nodules are produced in
the lungs. Assuming the position of the appellant to be correct, we feel that there is sufficient
testimony in the record to substantiate a finding that silicosis existed here in the statutory
sense. We therefore find it unnecessary to decide this issue raised by the appellant.
The doctor who performed the autopsy testified in part as follows:
Q. Was there any evidence of silica or silicon dioxide in the lungs?
A. It was my opinion that there was a considerable amount of silica throughout the
lungs. * * *
Q. And there was, as a result of your examination, evidence of fibrosity in the lungs?
A. Yes.
This doctor also testified that the most probable immediate cause of death, bronchial
pneumonia, was in his opinion secondary to the severe emphysema and silicosis of the
lungs.
A second doctor testified that death resulted from bronchial pneumonia and that silicosis
was a contributing cause of the pneumonia, explaining that [As] a terminal stage [silicosis
patients] die not of silicosis but some secondary infection, most commonly bronchial
pneumonia.
There is evidence, therefore, from which the court was justified in concluding that silicosis
as defined by statute existed as established by autopsy, and that it was a contributing cause of
death.
Affirmed.
____________
74 Nev. 211, 211 (1958) Thorne v. Thorne
ARTHUR THORNE, Appellant, v.
MARIE L. THORNE, Respondent.
No. 4050
June 18, 1958. 326 P.2d 729.
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge,
Department No. 1.
Proceeding for divorce. The trial court rendered divorce decree, which provided among
other things that husband was to pay wife sum of $20,000, to convey her certain real property
and to pay her sum of $2,500 for counsel fees and husband appealed. The Supreme Court,
Eather, J., held that where the rights or needs of a wife to continuing support of husband were
not subject of pleadings, findings, conclusions or decree, court could not set aside such
portion of husband's separate property for wife's support as would be deemed just and
equitable.
Maurice L. Sullivan, of Reno, for Appellant.
Springmeyer & Thompson, of Reno, for Respondent.
1. Divorce.
That husband was guilty of matrimonial delicts and wife contributed through her own labor to their
income, were not facts appropriate for consideration, under facts of divorce case, save as they might have
been held to bear upon husband's continuing obligation to provide for wife's support.
2. Divorce.
Statutory power of court granting divorce to make equitable disposition of property owned by parties is
limited to community property. NRS 125.150.
3. Divorce.
Where in divorce action rights or needs of wife to continuing support of husband were not subject of
pleadings, findings, conclusions or decree, court had no power over husband's separate property and could
not set aside such portion of husband's separate property for wife's support as would be deemed just and
equitable. NRS 125.150.
The Supreme Court may not take upon itself the functions of pleader and the discretionary powers of a
trial court.
5. Divorce.
Where in divorce action rights or needs of wife to continuing support of husband were not subject of
pleadings, findings, conclusions or decree, Supreme Court could not consider them on appeal. NRS
125.150.
6. Divorce.
Judgment for counsel fees in divorce action is not authorized save as founded upon a motion for suit
money and the showing necessary upon such a motion. NRS 125.040.
7. Divorce.
Where in divorce action wife filed motion for suit money but no hearing upon it was ever had and no
order with respect to it was ever made, court had no authority to render a judgment for counsel fees. NRS
125.040.
OPINION
This is an appeal taken by the husband from certain provisions of a decree of divorce
rendered in favor of the wife, March 11, 1957. The appeal is directed to those provisions of
the decree which direct the husband to pay to the wife the sum of $20,000 and to convey to
her certain real property and to pay to her for counsel fees the sum of $2,500.
The court by its findings determined that the husband was possessed of separate property
of a value in excess of $250,000 and that the wife was possessed of separate property of
an approximate net value of $55,000.
of $250,000 and that the wife was possessed of separate property of an approximate net value
of $55,000. There was no community property owned by the parties.
The pertinent language of the decree is as follows:
2. That in settlement of all property rights of the parties, it is hereby ordered:
(a) That plaintiff pay to defendant a lump sum of $20,000, in four equal annual
installments of $5,000 each. * * *
(b) That plaintiff convey to defendant, by good and sufficient deeds of transfer and
conveyance, his undivided five-eighths interest in what is commonly known as the Orchard
Property in Rye, New York. * * *
(f) That plaintiff pay to defendant for the services of defendant's attorneys the sum of
$2,500.
The conclusions of law in support of this portion of the decree are In settlement of all
property rights of the parties, it is deemed just and equitable that the following orders should
be made. Then follow the orders for payment and conveyance as heretofore quoted from the
decree.
As to paragraphs 2(a) and 2(b) of the decree the husband contends that they amount to a
division of his separate property and are unauthorized by law. NRS 125.150 provides as
follows:
1. 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.
2. 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.
[Headnote 1]
In support of the court orders, respondent contends that the record amply demonstrates that
the property settlement as decreed was just and equitable.
settlement as decreed was just and equitable. She refers to testimony as to the husband's
matrimonial delicts and as to her own financial contributions to the parties' income, through
her own labor. Under the facts of this case, however, these are not appropriate considerations
save as they might have been held to bear upon the husband's continuing obligation to
provide for his wife's support.
[Headnotes 2-5]
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. In this case the rights or needs of the wife to continuing
support of the husband were neither asserted nor adjudicated in the court below. They were
not the subject of pleadings, findings, conclusions or decree; nor would it be possible for this
court so to consider them without taking upon ourselves the functions of pleader and the
discretionary powers of a trial court. The language both of the conclusions of law and of the
decree indicates clearly the intention of the court to accomplish an adjustment of property
rights which, under the circumstances of the case, might be regarded as equitable and just.
This is borne out by the prayer of the wife's counterclaim That the court make proper
settlement of the property rights of plaintiff and defendant. This power the court did not
possess under the quoted statute.
[Headnotes 6, 7]
As to the judgment for counsel fees, appellant contends that the court had no power to
render such judgment; that its only power with respect to counsel fees lies in the area of suit
money under NRS 125.040 to require the husband to pay such sums as may be necessary to
enable the wife to carry on or defend such suit.
This point, too, is well taken. While expenses of the litigation may well be taken into
consideration by a court in its disposition of community property, judgment for counsel
fees in an action for divorce is not otherwise authorized save as founded upon a motion
for suit money and the showing necessary upon such a motion.
in its disposition of community property, judgment for counsel fees in an action for divorce is
not otherwise authorized save as founded upon a motion for suit money and the showing
necessary upon such a motion. In this case, while a motion for suit money was filed, no
hearing upon it was ever had and no order with respect to it was ever made.
Reversed and remanded with instructions that paragraphs 2(a), 2(b) and 2(f) be stricken
from the judgment and decree rendered in this matter March 11, 1957. Costs are awarded to
the respondent.
____________
74 Nev. 215, 215 (1958) Ex Parte Rowland and Schuman
In the Matter of the Application of MELVIN LEE ROWLAND and RAYMOND WALLACE
SCHUMAN For a Writ of Habeas Corpus.
No. 4119
June 25, 1958. 326 P.2d 1102.
Original proceeding in habeas corpus by relators who were being tried on a charge of
murder in a district court. The Supreme Court held that where relators elected to proceed to
trial before applying for a writ of habeas corpus, and voluntarily submitted to jurisdiction of
the court, and placed themselves in jeopardy, they could not at the same time seek to be
relieved of such burden through habeas corpus on theory that state failed to prove a crime
before the committing magistrate, or to prove that the crime charged was committed within
the jurisdiction of the court.
Writ denied.
Jon R. Collins, of Ely, and Paul A. Richards, of Reno, for Petitioners.
Leonard E. Blaisdell, District Attorney, of Mineral County, for Respondent.
1. Habeas Corpus.
A writ of habeas corpus will not be denied where there is a showing, prior to trial, of lack of probable
cause that a crime was committed or that the petitioner committed it.
2. Habeas Corpus.
Where defendants in a criminal prosecution elected to proceed to trial in district court before applying for
a writ of habeas corpus, and voluntarily submitted to jurisdiction of the district court, and placed
themselves in jeopardy, they could not at the same time seek to be relieved of such burden through habeas
corpus on theory that state failed to prove a crime before the committing magistrate, or to prove that the
crime charged was committed within the jurisdiction of the court.
OPINION
Per Curiam:
This is an original proceeding in habeas corpus. The petition was filed May 31, 1958, on
which date it was denied, with reservation of right to file an opinion later. The opinion
follows.
Petitioners alleged that following preliminary hearings they had, on January 30, 1958, been
held to answer on a charge of murder in the first degree to the Fifth Judicial District Court of
the State of Nevada, in and for Mineral County, by Vane Day, Esq., justice of the peace of
Hawthorne township in said county; that they were arraigned before said court and are now
being tried in Hawthorne, Nevada, before a jury duly sworn to try said case on said charge.
They alleged that the only evidence adduced by the state at the preliminary hearing were their
purported confessions and that there was no other proof of the corpus delicti or the venue of
the action. They, therefore, contend that the district court is without jurisdiction to proceed
further with the trial.
Supporting the petition are (1) an affidavit sworn to by counsel for petitioners, and (2) a
transcript of the proceedings before the committing magistrate. The affidavit of counsel
recites that the district attorney of Mineral County, although he had the witnesses and the
evidence available, failed to prove that a crime was committed under the information
filed, as there is no independent evidence of the corpus delicti" or that the crime was
committed within the jurisdiction.
evidence available, failed to prove that a crime was committed under the information filed, as
there is no independent evidence of the corpus delicti or that the crime was committed
within the jurisdiction.
The same point was raised at the conclusion of the state's case at the preliminary hearing,
whereupon the district attorney requested leave to reopen the state's case for the purpose of
getting further testimony from the witness Donald Sawyer [the undersheriff of Mineral
County] on identification of a body north of Schurz [in Mineral County] and its condition, at
or about the time of the alleged killing as appears in the complaint. Counsel objected on the
ground that the state had rested and the magistrate sustained the objection. Although this
occurred in the matter of the preliminary hearing of petitioner Rowland, the issues as
presented by the present petition of both petitioners make the circumstances applicable to
both.
We need not decide whether, if these facts had been presented to this court on an original
petition for habeas corpus immediately following the order of the magistrate holding the
defendants to answer, this court would have issued the writ and, upon the return showing no
other justification than the magistrate's order, would have released the defendants for lack of
showing of probable cause. Should this court have so acted, the situation could, of course,
have been at once remedied. The defendants, however, not only prevented proof of the corpus
delicti and the venue by their objection to the state's motion to reopen its case for this
purpose, knowing that the proof was there and available, but elected to appear for
arraignment and for trial and to permit the jury to be selected and thereafter to interrupt the
progress of the trial by applying to this court for a writ of habeas corpus. Their purpose is, of
course, manifest. The lack of proof at the preliminary hearing could have been simply cured.
They have now, however, been placed in jeopardy and their release would prevent their ever
being tried. It is also patent that if their position is sound, they could seek such release not
only after the first day of trial but after the second, third or tenth.
They assert that as the error is jurisdictional, it could not be waived. They present no
authorities whatsoever in support of their petition except general statements of law to the
effect that a trial may not be interrupted by proceedings of this nature, in the absence of
exceptional circumstances. They contend that their showing of the absence of proof of
probable cause, being jurisdictional, is such exceptional circumstance. Our own search has
found no case in point.
[Headnote 1]
In Nevada the writ of habeas corpus will not be denied where there is a showing, prior to
trial, of lack of probable cause that a crime was committed or that the petitioner committed it.
NRS 34.500; Ex Parte Ralls, 71 Nev. 276, 288 P.2d 450; Ex Parte Kline, 71 Nev. 124, 282
P.2d 367. Some courts are more liberal, while others are, perhaps, stricter in limiting the
office of the writ. In Ex Parte Hamilton, 56 Wash. 405, 105 P. 1046, the court said, The
office of the writ of habeas corpus is to give a person restrained of his liberty an immediate
hearing so that the legality of his detention may be inquired into and determined. The
petitioner has a right to an immediate trial of that issue in a proper case; but he has no right to
select his own forum or to prescribe the mode of trial. In this case it was made to appear that
the petitioner was about to have an immediate trial of all questions involving his guilt and the
legality of his imprisonment in a court of competent jurisdiction, and the writ of habeas
corpus could give him no more.
If the purpose of the application was to secure an immediate trial, that object has already
been accomplished. If the purpose was to secure delay or a postponement of the pending trial,
the application should not be entertained.
[Headnote 2]
In Nevada the writ will issue to the end that the petitioner will not be compelled to
undertake the expense and burden of trial in the absence of a showing of probable cause.
Eureka Co. Bank Habeas Corpus Cases, 35 Nev. S0, 126 P.
Nev. 80, 126 P. 655, 129 P. 308. Where, however, as here, he elects to proceed to trial before
applying for the writ, and he voluntarily submits to the jurisdiction and places himself in
jeopardy, he may not at the same time seek to be relieved of this burden through habeas
corpus. Such interruption of the due and orderly administration of the criminal law by a
competent court acting within its jurisdiction, under the circumstances described, is not
contemplated by our statute or the cases above cited.
Under these conditions we entered the order denying the petition for the writ.
____________
74 Nev. 219, 219 (1958) Great Am. Indem. Co. v. Sweetwater Mining Co.
GREAT AMERICAN INDEMNITY COMPANY, a Corporation, Appellant v.
SWEETWATER MINING COMPANY, a Corporation, Respondent.
No. 4074
June 27, 1958. 326 P.2d 1105.
Appeal from summary judgment of the Second Judicial District Court, Washoe County; A.
J. Maestretti, Judge, Department No. 2.
Action against surety on attachment undertaking for damages sustained by virtue of
wrongful attachment. The trial court entered a summary judgment in favor of the plaintiff and
the defendant appealed. The Supreme Court, Merrill, J., held that although attachment action
was successfully defended upon the merits, attorneys' fees and expenses of witnesses incurred
in defending attachment action were not recoverable.
Reversed and remanded for further proceedings.
(Rehearing denied July 21, 1958.)
Vargas, Dillon & Bartlett and Alex A. Garroway, of Reno, for Appellant.
John P. Thatcher, of Reno, for Respondent.
1. Attachment.
Attorneys' fees and expenses of witnesses, incurred in successful defense of attachment action on merits,
were not incurred by reason of attachment and were not recoverable from surety on attachment
undertaking.
2. Attachment.
Where an attachment is defective and is subject to being dissolved by virtue of defect regardless of merits
of action, expenses involved in setting it aside are properly regarded as damages resulting from attachment.
NRS 31.030.
3. Attachment.
Where an attachment is not defective and its wrongfulness is due only to a lack of cause of action,
expenses incurred in prevailing in action upon merits are not attributable to attachment but to fact action
was brought and are not recoverable from surety on attachment undertaking. NRS 31.030.
OPINION
This is an appeal taken by the defendant below from summary judgment in favor of
plaintiff. The action is for damages sustained by virtue of wrongful attachment. The damages
for which judgment was rendered below related to defense upon the merits of the action in
which the attachment was levied. The sole question involved upon this appeal is whether
such damages can be said to have been sustained by reason of the attachment.
In 1950 an action was brought by one Arends against this respondent. Arends secured a
writ of attachment which was levied against certain real and personal property of the
respondent. Respondent successfully defended the action and judgment in its favor was
upheld on appeal to this court. Arends v. Sweetwater Mining Company, 72 Nev. 73, 294 P.2d
914. The present action was brought March 31, 1957 by respondent against appellant as
surety upon the undertaking which supported the attachment in the earlier action. That
undertaking, pursuant to NRS 31.030 was to the effect that should defendant prevail in the
action the surety would pay all costs that may be awarded to the said defendant and all
damages which it may sustain by reason of attachment, including attorneys' fees."
defendant and all damages which it may sustain by reason of attachment, including attorneys'
fees. The undertaking was limited to the sum of $3,700.
In the court below the respondent established that in the earlier action it had received
judgment for costs in the sum of $159. As damages sustained by reason of attachment
respondent made proof of an obligation for attorneys' fees in connection with the defense of
the earlier action in the sum of $3,350 and the expenses of witnesses testifying upon trial in
the earlier action in the sum of $2,028.14. Further proof was made that the writ of attachment
issued in the earlier action was valid and regular upon its face; that no steps were taken to
discharge or dissolve the attachment since such proceedings would have been futile; that the
only manner in which the attachment could have been dissolved was to defend the action
upon the merits. Summary judgment below was rendered upon this showing in the sum of
$3,700, the limits of the undertaking.
There is no issue as to the sum of $159 costs. Appellant contends, however, that counsel
fees and witnesses' expenses incurred in defending the earlier action upon the merits cannot
properly be held to have been incurred by reason of the attachment. Respondent, on the other
hand, contends that where the only manner in which the attachment could have been
dissolved was through successful defense of the action upon the merits, such expenses are
properly attributable to the attachment.
Upon this issue authority is divided. See Annotations, 25 A.L.R. 580 and 71 A.L.R. 1458.
We may note that certain of respondent's authorities have been distinguished by appellant
upon the ground that the action in those cases was quasi in rem while in this case it is in
personam. If there be merit in such a distinction we need not decide it here. In our view the
rule for which appellant contends, exemplified by the following authority, is better supported
by reason and must be adopted. Travis v. Brock Lime Co., (La.App., 1947), 29 S.2d 545; Java
Cocoanut Oil Co. v. Fidelity & Deposit Co., (C.C.A. 9th, 1924), 300 F.
1924), 300 F. 302, 39 A.L.R. 523; St. Joseph Stock Yards Co. v. Love, 57 Utah 450, 195 P.
305, 25 A.L.R. 569.
[Headnotes 1-3]
In considering whether expenses of litigation can be regarded as damages for wrongful
attachment, two situations should be distinguished.
(1) Where the attachment is defective and is subject to being dissolved by virtue of defect
regardless of the merits of the action. Here the expenses involved in setting it aside are
properly regarded as damages resulting from the attachment. The attachment was wrongful
regardless of the merits. Had there been no attachment the expenses involved would never
have been incurred.
(2) Where the attachment is not defective and its wrongfulness is due only to a lack of
cause of action. Here the expenses incurred in prevailing in the action upon the merits are not
attributable to the attachment but to the fact that action was brought. It was not the attachment
which required the incurring of these expenses. They were incurred for the reason that
defense was necessary. They would have been incurred whether attachment had issued or not.
In Wantz v. Redfield (opinion handed down earlier this month), 74 Nev. 194, 326 P.2d 413,
we held that the filing of a third party claim against attached property did not constitute
conversion where the claim was later disallowed. We there stated, In the absence of malice,
which the record here does not reveal, it is not wrongful or tortious to engage in a dispute * *
* nor to submit that dispute to the courts. Courts exist for the purpose of resolving disputes.
One does not become a tortfeasor merely by having judgment entered against him in an action
brought in good faith.
The same principle would seem to apply here. To permit recovery of the expenses of
litigation upon the merits in effect would be to brand the plaintiff a tortfeasor guilty of
malicious prosecution, where, in truth, it would appear that the action had been brought in all
good faith.
Damages resulting from the fact that property was wrongfully placed under attachment
may certainly be recovered.
wrongfully placed under attachment may certainly be recovered. Damages resulting from the
fact that suit was brought may not.
Reversed and remanded with instructions that summary judgment be set aside and for
____________
74 Nev. 223, 223 (1958) Child v. Miller
ALFRED R. CHILD, HELEN S. CHILD, and ALKODOMO CORPORATION, a New York
Corporation, Appellants, v. GEORGE MILLER, Inc., a California Corporation, Respondent.
No. 4069
June 30, 1958. 327 P.2d 342.
Department No. 3.
Action to recover the balance due for the sale of carpets. Judgment for the plaintiffs in the
lower court and the defendants appealed. The Supreme Court, Eather, J., held that defendants
were not entitled to have granted a motion to remand to introduce additional evidence
discovered after the appeal; and that the evidence sustained the judgment for the plaintiffs;
and that parol evidence was admissible to show that release never came into existence
through failure of conditions precedent relating to its delivery and taking effect.
Motion to remand denied.
Judgment affirmed.
Harry E. Claiborne, of Las Vegas, for Appellants.
Morton Galane, of Las Vegas, for Respondent.
1. Appeal and Error;
Judgment.
While newly discovered evidence is a ground for motion for new trial under rule 59(a) it is not ground for
relief from a judgment under rule 60(b) and the appellant was not entitled to an order remanding the
case for further consideration on the ground that certain evidence was discovered
after the appeal was taken.
to an order remanding the case for further consideration on the ground that certain evidence was discovered
after the appeal was taken. Rules of Civil Procedure, rules 59(a), 60(b); Fed. Rules Civ. Proc. rule 60(b),
28 U.S.C.A.
2. Release.
In action by seller to recover the balance due for a sale of carpets to defendants as operators of a motel
with defense that the defendants were not liable because another resort hotel had accepted responsibility for
the debt, evidence sustained finding that the seller had not released the defendants from their obligations
and that the obligations remained due and owing.
3. Evidence.
Parol evidence does not apply to a mere receipt.
4. Evidence.
Parol evidence is admissible to show conditions precedent which relate to the delivery or taking effect of
an instrument and such evidence does not constitute an oral contradiction of the written instrument but goes
to the very existence of the contract and tends to show that no valid and effective contract ever existed.
5. Evidence.
Parol testimony is admissible to show that no accord and satisfaction ever existed.
6. Evidence.
Parol evidence was admissible to show that release never came into existence through failure of
conditions precedent relating to its taking effect.
OPINION
This matter is before us upon appeal from judgment and also upon a motion by appellant
for order of this court remanding the case for further consideration by the trial court.
On Motion to Remand
This motion is made under Rule 60(b) NRCP which provides for the circumstances under
which the trial court may relieve a party from final judgment. The ground of the motion is
that certain evidence, newly discovered by appellant, bears upon the issues and dispute below
and was discovered after this appeal had been taken, thus requiring a remand by this court
before consideration by the trial court can be had under Rule 60{b).
consideration by the trial court can be had under Rule 60(b).
[Headnote 1]
Newly discovered evidence is a ground for a motion for new trial under Rule 59(a), but is
not a ground for relief from judgment under Rule 60(b). In this respect our rule differs from
the corresponding Federal Rule 60(b), 28 U.S.C.A., which allows relief from judgment upon
the ground of newly discovered evidence, not discovered in time to move for a new trial. This
departure from the federal rules was intentionally made in order to preserve the practice
theretofore established under the Civil Practice Act. See Advisory Committee notes to NRCP
60(b).
The motion to remand is denied.
Appeal From Judgment
This action was brought by respondent as plaintiff below to recover the balance due for a
sale of carpets by respondent to appellants as operators of a motel in Las Vegas known as the
Montmartre Motel. Judgment was rendered by the trial court in favor of respondent in the
sum of $6,646.15.
Appellants' contention throughout has been that they are not liable for this debt; that by
agreement between appellants and the operators of an adjoining resort hotel, the Moulin
Rouge, the latter had accepted responsibility for the debt. The Moulin Rouge has since gone
into bankruptcy. Respondent contends that regardless of the arrangements between appellants
and the Moulin Rouge, respondent has always looked to the appellants upon this obligation
and has never released them from their obligation and has never accepted the Moulin Rouge
as obligor in their stead. Judgment of the court below was based upon its determination in
support of respondent's contention.
Testimony introduced by respondent in trial below is to the effect that the total obligation
originally was in the sum of $17,121.30; that appellants had paid the sum of $10,475.45 with
a notation on the face of the check that it was payment in full of their obligation and had
requested a release contending that respondent must look to the Moulin Rouge for the
balance; that respondent had refused to execute the release or to accept the obligation of
the Moulin Rouge in lieu of that of the appellants and had insisted that the notation on the
face of the check be stricken out, which was done; that subsequently the appellants had
delivered to respondent a check drawn by the Moulin Rouge for the balance due, which
respondent had accepted; that appellants had again requested that a release be given,
which respondent had declined to give until the check had cleared; that appellants had
continued to press for a release and had assured respondent that if the check did not
clear appellants would take care of the balance; that relying upon this assurance,
respondent signed the release; that the check was dishonored by the bank upon which it
was drawn and that respondent has never received the balance due.
that it was payment in full of their obligation and had requested a release contending that
respondent must look to the Moulin Rouge for the balance; that respondent had refused to
execute the release or to accept the obligation of the Moulin Rouge in lieu of that of the
appellants and had insisted that the notation on the face of the check be stricken out, which
was done; that subsequently the appellants had delivered to respondent a check drawn by the
Moulin Rouge for the balance due, which respondent had accepted; that appellants had again
requested that a release be given, which respondent had declined to give until the check had
cleared; that appellants had continued to press for a release and had assured respondent that if
the check did not clear appellants would take care of the balance; that relying upon this
assurance, respondent signed the release; that the check was dishonored by the bank upon
which it was drawn and that respondent has never received the balance due.
[Headnote 2]
This testimony provides ample support for the determination of the court below that
respondent had not released appellants from their obligation and that that obligation remained
due and owing.
Appellants contend that this testimony was inadmissible for the reason that it serves to
vary the terms of a written instrument (the release) contrary to the parol evidence rule.
[Headnotes 3-5]
It is well recognized, however, that the parol evidence rule does not apply to a mere
receipt. See 20 Am.Jur. 971 (Evidence, sec. 1109). Appellants contend that this is more than
a mere receipt; that it is a contractual release. Even should this be so, delivery of the release
and its taking effect were clearly conditional upon the check of Moulin Rouge clearing the
bank. Accepting the testimony to which we have referred, it was the understanding of the
parties that the instrument signed would not release appellants from their obligation unless
the check cleared.
not release appellants from their obligation unless the check cleared. Parol evidence is
admissible to show conditions precedent which relate to the delivery or taking effect of an
instrument. Such evidence does not constitute an oral contradiction or variation of the written
instrument but goes to the very existence of the contract and tends to show that no valid and
effective contract ever existed. See 32 C.J.S., Evidence, Sec. 935, p. 857. In Western National
Ins. Co. v. Trent, 69 Nev. 239, 243, 247 P.2d 208, 210, this court stated: Plaintiff contends
that no accord and satisfaction ever existed. His testimony tends to negative the very
existence of such a contract rather than to vary its terms. It is well recognized that parol
testimony is admissible for such a purpose, for the parol evidence rule presupposes a valid
and binding agreement.
[Headnote 6]
In the case before us, therefore, the testimony did not serve to vary or contradict the terms
of the release but served to show that the release never came into existence through failure of
the conditions precedent relating to its delivery and taking effect.
Affirmed.
____________
74 Nev. 227, 227 (1958) Weisbrod v. Fremont Hotel
JACK WEISBROD, Appellant, v. THE FREMONT HOTEL, INC.,
A NEVADA CORPORATION, Respondent.
No. 3975
June 30, 1958. 326 P.2d 1104.
Appeal from Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
Department No. 2.
Action to enforce gambling obligation. The trial court dismissed the action for failure of
complaint to state claim upon which relief could be granted, and plaintiff appealed.
appealed. The Supreme Court, Per Curiam, held that action will not lie for collection of
money won in gambling, even when patron seeks such recovery from proprietors of gambling
establishment.
Affirmed.
Harry E. Claiborne, of Las Vegas, for Appellant.
Jones, Wiener & Jones, of Las Vegas, for Respondent.
Gaming.
Action will not lie for collection of money won in gambling, even when patron seeks such recovery
from proprietors of gambling establishment.
OPINION
Per Curiam:
This is an action brought to enforce a gambling obligation. Judgment was rendered in
favor of the defendant below, dismissing the action for failure of the complaint to state a
claim upon which relief could be granted. This appeal is taken by the plaintiff from that
judgment.
Plaintiff alleges that on May 23, 1956 he was a patron of the gambling establishment
operated by defendant; that he purchased a $3.50 ticket on defendant's keno game; that
following the game it was disclosed by the drawing that he held a winning ticket entitling him
to the sum of $12,500; that defendant has refused to pay him this sum.
In 1872 it was established as the law of this state that an action does not lie for the
collection of money won in gambling. Scott v. Courtney, 7 Nev. 419. This rule was
reaffirmed in 1950 in West Indies v. First National Bank, 67 Nev. 13, 214 P.2d 144, after
reviewing consideration of the same question in Evans v. Cook, 11 Nev. 69; Burke and Co. v.
Buck, 31 Nev. 74, 99 P. 1078, 22 L.R.A., N.S., 627; and Menardi v. Wacker, 32 Nev. 169,
105 P. 287.
Appellant contends that this rule should be held to apply only against the proprietors of
gambling establishments and should not be held to apply against the patrons of such
establishments since the rule exists for the protection of the patrons.
apply only against the proprietors of gambling establishments and should not be held to apply
against the patrons of such establishments since the rule exists for the protection of the
patrons.
Both Scott v. Courtney, supra, and West Indies v. First National Bank, supra, involved
instances of a proprietor permitting, if not encouraging, a patron to gamble upon credit. It
may well be that the rule there announced was founded to some degree upon a recognition of
the obvious evils inherent in such practices. So long as such practices remain lawful,
however, the rule must be held to apply equally to all lawful gambling transactions. It must,
then, cut both ways. If money won at gambling is not recoverable through resort to the courts
it is not because of who has won it but because of the nature of the transaction itself.
This is not to say that the state provides no adequate protection to the gambling patron. It
must be recognized that the state has an interest in seeing that its licensees honestly and
honorably respect their gambling obligations. Repudiation of such obligations would most
certainly be regarded as reflecting upon the suitability of one to hold a state license.
Therefore, while protection of the courts is not afforded the gambling patron, he does have
administrative protection through regulation of gambling by the tax commission. With
reference to such protection it may well be, by the very nature of disputes such as that here
involved, that the factual truth can, with justice to both disputants, more expertly and surely
be ascertained through an administrative inquiry than through a judicial one. In Nevada Tax
Commission v. Hicks, 73 Nev. 115, 310 P.2d 852, we had occasion to note the importance to
the state of having this board as an expert administrative agency serve in a fact-finding
capacity upon questions within the area of its specialized competence.
Nor can it realistically be contended that such administrative determination would not
inure to the benefit of the gambling patron in a proper case. No licensee is likely to place his
license in jeopardy through refusal to pay a gambling debt found to be properly due.
We therefore have no doubt but that if the tax commission had felt that the respondent was
honestly indebted on the transaction here involved, resort to the courts need never have been
had.
We conclude that the rule of the Scott and West Indies cases must be held to apply in the
case at bar. The dispute here involved is not one of which judicial cognizance can be taken.
Affirmed.
____________
74 Nev. 230, 230 (1958) Bourne v. Walker
In the Matter of the Guardianship of
BARBARA KAY WALKER, a Minor.
CAROLYN V. BOURNE, Appellant, v. DAVID H. WALKER and FIRST NATIONAL
BANK OF NEVADA, as Joint Guardians of the Estate of BARBARA KAY WALKER, a
Minor, Respondents.
No. 4105
July 1, 1958. 327 P.2d 344.
Department No. 1.
Proceeding on objections filed by minor's grandmother, purporting to be acting in capacity
of next friend of minor, to annual account filed by guardians of estate of minor. From an
order of the lower court approving and settling the account, the grandmother appealed. The
Supreme Court, Merrill, J., held that where minor's grandmother, upon her own initiative and
without application or consent of minor and with no court appointment or approval, but
purporting to be acting in capacity of next friend of minor, filed objections to annual account
of guardians of estate of minor, grandmother was not acting in a representative capacity in
trial court, and she could not, in a representative capacity, be said to be an aggrieved party in
an appeal from an adverse order, and there was no dispute between interested parties which
trial court was called upon to determine, and order from which appeal was taken was not
a judicial determination of the dispute and was not a final judgment upon matters in
dispute from which an appeal could be taken.
interested parties which trial court was called upon to determine, and order from which
appeal was taken was not a judicial determination of the dispute and was not a final judgment
upon matters in dispute from which an appeal could be taken.
On motion to dismiss appeal; appeal dismissed.
(Petition for Rehearing denied August 11, 1958.)
Hawkins, Rhodes and Hawkins, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey and Thompson, of Reno, for Respondents.
1. Guardian and Ward.
Rule that settlement of a guardian's intermediate account is not final and does not constitute res judicata
has reference to ex parte settlement of accounts by the court in its administration of estates and does not
have reference to determination of any dispute between parties litigant.
2. Guardian and Ward.
Where minor's grandmother, upon her own initiative and without application or consent of minor and
with no court appointment or approval, but purporting to be acting in capacity of next friend of minor, filed
objections to annual account of guardians of estate of minor, grandmother was not acting in a
representative capacity in trial court and she could not, in a representative capacity, be said to be an
aggrieved party in an appeal from an adverse order, and there was no dispute between interested parties
which trial court was called upon to determine and order from which appeal was taken was not a judicial
determination of the dispute and was not a final judgment upon matters in dispute from which an appeal
could be taken. Rules of Civil Procedure, rules 17(c), 72(b); NRS 12.050, and (1), 159.010; District
Court Rules, rule 29.
3. Infants.
Function of guardian ad litem includes the representation of infant plaintiffs as well as infant defendants.
Rules of Civil Procedure, rule 17 (c); NRS 12.050.
4. Infants.
In order for a guardian ad litem to represent an infant, he must act under court appointment as a court
officer, and certain conditions must be met to the satisfaction of the court. Rules of Civil Procedure, rule
17(c); NRS 12.050, and (1), 159.010; District Court Rules, rule 29.
5. Infants.
If one, as a next friend is to act in representative capacity with power to commit a minor he represents to
a particular dispute and to the legal consequences of a determination by a court of law, he must
qualify in the same manner as a guardian ad litem.
court of law, he must qualify in the same manner as a guardian ad litem. Rules of Civil Procedure, rule
17(c); NRS 12.050, and (1), 159.010; District Court Rules, rule 29.
OPINION
This is an appeal from an order settling an annual account filed by the guardians of the
estate of a minor child. The appeal is taken by Carolyn V. Bourne, grandmother of the minor,
who purports to be acting in the capacity of next friend of the minor.
On November 1, 1957, respondents as guardians of the estate of Barbara Kay Walker, a
minor then 14 years of age, presented their third annual account. Appellant upon her own
initiative, without application or consent of the ward, and with no court appointment or
approval, filed objections to the account. Over the protests of respondents that she had no
interest and no standing to represent the minor, the court below permitted her to participate in
the hearing on the account. No determination was made upon her right to participate, the
court ruling instead that there was no merit to the objections made by her to the account. On
November 25, 1957, the court below entered its order approving and settling the account.
From that order this appeal is taken.
Respondents have moved to dismiss the appeal upon two grounds: (1) That the order
appealed from is not an appealable order; and (2) that appellant is not an aggrieved party to
the appeal in that she has no personal interest in the estate and no standing as representative
of the minor. The matter is now before the court upon this motion to dismiss.
Settlement of a guardian's intermediate account is not expressly made appealable by statute
and is not specified as an appealable order by Rule 72(b) NRCP. The question, therefore, is
whether the order from which this appeal is taken can be said to possess that degree of finality
which would constitute it in effect a final judgment.
[Headnote 1]
Respondents have cited several cases to the effect that settlement of a guardian's
intermediate account is not final and does not constitute res judicata; that such settlement is
regarded only as prima facie evidence of the state of the account and in the interests of the
ward remains subject to reexamination upon the settling of subsequent accounts.
It should be noted, however, that this rule has reference to the ex parte settlement of
accounts by the court in its administration of estates and does not have reference to the
determination of any dispute between parties litigant. In the case before us it is the position of
appellant upon this motion that on behalf of the ward she has objected to the account in
question; that the dispute created by the objections was adjudicated and determined by the
court below in its order of settlement and that this appeal is taken from such determination.
[Headnote 2]
To the extent that a dispute between interested parties was before the court below and was
determined it may well be that the order was final and would constitute res judicata as to the
matters in dispute. It would, then, constitute final judgment upon such matters and would be
appealable as a final judgment.
Respondents contend that this is contrary to the rule that a ward cannot maintain an action
against his guardian respecting matters of his estate until there has been a final accounting by
the guardian. See 25 Am.Jur. 97, Guardian and Ward, secs. 157, 158. Upon this proposition
authority is divided. The contrary view as expressed in In Re Montgomery's Estate, 140
Wash. 51, 248 P. 64, 65, appeals to us as the better rule. There the court said, But we think a
ward not bound to sit idly by and see his guardian appropriate to himself and claim as his own
that which belongs to the ward, with the hope that when the final account is rendered he may
receive back that which is his, if the guardian or his bondsmen be able and willing to respond.
While the ward may wait until after his majority to bring such an action, we should not deny
the assertion of his rights because made prior to that time.
should not deny the assertion of his rights because made prior to that time. Rather should we
look with favor upon a prompt assertion of his claim.
The question, then, is whether the court below was confronted with an actual dispute
between interested parties and thus in settling the account was not only administering an
estate but also was formally adjudicating a dispute. Since appellant had no personal interest in
the dispute, the answer to this question will depend upon whether, in objecting to the account,
she can be said to have been acting in a representative capacity with authority to commit the
minor to the dispute and to the manner in which it was resolved.
This brings us to the second ground for the motion to dismiss. Respondents contend that
appellant is not properly before us in a representative capacity. They first rely upon the
holding of this court in In Re Ray's Estate, 73 Nev. 212, 314 P.2d 378, which held that the
mother of a minor has no standing to represent the minor in a dispute with reference to the
minor's interest in a decedent's estate. The reason for the holding in that case was that in a
decedent's estate a representative for the minor has been provided by law: the court-appointed
attorney for minor heirs. By law it is provided that this attorney shall represent the interest of
the minor in all matters concerning the estate. In the instant case no provision is made by law
for a representative of the minor in any disputes with the guardian which may arise regarding
the estate. In Re Ray's Estate is not, then, authority for the proposition that petitioner would
not be a proper representative of the minor in any dispute arising between the minor and her
guardian with reference to the minor's estate.
Respondents next contend that since appellant appeared without court authority on her
own initiative rather than the ward's application, she was a mere volunteer and cannot be said
to have been appearing in a representative capacity.
[Headnote 3]
Nevada law is silent upon the nature of the functions and authority of a next friend.
and authority of a next friend. Rule 17(c) NRCP provides If an infant or incompetent person
does not have a duly appointed representative he may sue by his next friend or by a guardian
ad litem. Under common law there was little, if any, difference between the functions of a
next friend and of a guardian ad litem in representing an infant party to a suit or action.
Technically a next friend ordinarily represented a plaintiff while a guardian ad litem
represented a defendant. The guardian ordinarily was appointed by the court, while a next
friend was not required to secure court appointment. Both, however, were regarded as officers
of the court. See 43 C.J.S. 275, Infants, sec. 107. In many states the function of the guardian
ad litem is recognized to include the representation of infant plaintiffs as well as infant
defendants. See 27 Am.Jur. 835, Infants, sec. 116. This is so in the State of Nevada.
NRS 12.050 provides in part, When a guardian ad litem is appointed by the court he must
be appointed as follows: (1) When the infant is plaintiff, upon the application of the infant if
he be of the age of 14 years or if under that age upon the application of a relative or friend of
the infant.
Rule XXIX of the District Court Rules provides, No person shall be appointed guardian
ad litem, either upon the application of the infant or otherwise, unless he be the general
guardian of the infant, or an attorney, or other officer of this court, or is fully competent to
understand and protect the rights of the infant; has no interest adverse to that of the infant,
and is not connected in business with the attorney or counsel of the adverse party, nor unless
he be of sufficient pecuniary ability to answer to the infant for any damage which may be
sustained for his negligence or misconduct in defense of the suit.
[Headnote 4]
It is clear not only that a guardian ad litem is a proper representative of an infant plaintiff,
but that in order to represent the infant he must act under court appointment as a court officer
and certain conditions must be met to the satisfaction of the court.
met to the satisfaction of the court. Furthermore, if the infant is over the age of 14 years, the
application must be made by the infant himself. NRS sec. 12.050 (1).
[Headnote 5]
It would not do to permit one to avoid these requirements as to guardians ad litem by
simply designating himself a next friend and, without meeting such requirements or securing
the approval of the infant himself, commit the infant to the consequences of a dispute at law.
NRS 159.010 recognizes the power of the court to appoint or allow any person as the next
friend of a minor to commence and prosecute any suit in behalf of a minor. We conclude
that if one, as a next friend, is to act in a representative capacity with power to commit the
minor he represents to a particular dispute and to the legal consequences of a determination
by a court of law, he must qualify in the same manner as a guardian ad litem.
Appellant contends that this is contrary to the holding of this court in Baker v. Baker, 59
Nev. 163, 87 P.2d 800, 96 P.2d 200. In that case, an action for divorce brought against an
insane wife, the wife appealed from the decree through her brother who had been appointed
in Illinois as her conservator. This court held the appeal proper, notwithstanding the fact that
it was not taken on the wife's behalf by her guardian ad litem appointed to represent her in the
court below. The question in that case was not whether appellant's brother could, without
court authority, involve appellant in a dispute. She was already so involved. The question was
whether the brother could bring that dispute to this court on behalf of the appellant. This court
did no more than formally grant the brother authority to prosecute the appeal on his sister's
behalf where the court-appointed guardian ad litem had failed to act. This authorization was
based upon principles of comity in recognition of the fact that the brother already served in a
representative capacity under Illinois appointment. The case is not in point.
We conclude that appellant was not acting in a representative capacity in the court below
and cannot, in a representative capacity be said to be an aggrieved party to this appeal.
representative capacity be said to be an aggrieved party to this appeal. There was, then, no
dispute between interested parties which the court below was called upon to determine and
the order from which this appeal is taken was not a judicial determination of a dispute. It was
not, then, a final judgment upon matters in dispute. The motion to dismiss must be granted
upon both grounds.
Appellant contends that, as one sincerely and naturally interested in the welfare of the
minor, she should have a right to be heard upon such matters as the guardians' accounts and
that approval by the court and by the minor should not be prerequisite to her right to file
objections. This is the position she took in the court below. She there contended that because
of the circumstances there was no other impartial person to object to the account and to assist
the court in performing the court's function of examining the accuracy of the account.
There may well be merit in this contention. It does, however, reduce the status of the next
friend of a minor to that of a friend of the court to the end that assistance can be offered
without being regarded as mere intermeddling. Such assistance is offered, however, as an aid
to the court which the court in its discretion may accept or reject. It cannot be said to create a
dispute to which the minor is a party and which must be resolved by the court in the form of a
judgment.
Appeal dismissed.
____________
74 Nev. 238, 238 (1958) Allen v. Hernon
JOHN S. ALLEN and ELIZABETH ALLEN, Appellants, v. MICHAEL J. HERNON and
FRANCES HERNON, Respondents.
No. 4041
July 15, 1958. 328 P.2d 301.
Appeal from judgment of the Eighth Judicial District Court, Clark County; Ryland G.
Taylor, Judge, Department No. 3.
Action by makers to set aside a note and trust deed. The lower court entered a judgment
against mortgage company which had sold the papers, and in favor of buyers of the papers,
and makers appealed. The Supreme Court, Badt, C. J., held that where buyers of note and
trust deed took without any knowledge of the fact that makers of such papers had received no
consideration for the same from mortgage company, and buyers paid a cash consideration to
the mortgage company, buyers were holders in due course under the negotiable instrument
law, and were entitled to enforce note and trust deed, even though makers received no
consideration, and were defrauded by mortgage company.
Affirmed.
Sidney R. Whitmore, of Las Vegas, for Appellants.
John C. Mowbray, of Las Vegas, for Respondents.
1. Mortgages.
Where buyers of a note and trust deed from a mortgage company took without any knowledge of the fact
that makers of such papers had received no consideration for the same from mortgage company, and buyers
paid a cash consideration to the mortgage company, buyers were holders in due course under the negotiable
instrument law, and were entitled to enforce note and trust deed, even though makers received no
consideration, and were defrauded by mortgage company. NRS 92.059, 92.064, 92.066.
2. Acknowledgment;
Deeds.
Statutory provisions relating to acknowledgment and recordation of instruments conveying realty are for
the protection and security of creditors and purchasers, and such provisions do not prevent the passing of
title by a grantor to a grantee.
3. Homestead.
Where certain realty was held by a husband and wife not as community property, but in joint tenancy,
statute providing that no deed of conveyance or mortgage of a homestead as defined by law, shall be valid
for any purpose whatever unless both husband and wife execute and acknowledge same as provided by law
for conveyance of realty, had no application to realty in question, even though husband and wife lived upon
the premises and made it their home. NRS 123.230.
4. Mortgages.
Statutory provisions relating to acknowledgment of assignments of instruments transferring an interest in
realty are for the protection and security of creditors and purchasers, and such provisions do not prevent a
valid assignment of a deed of trust from the beneficiary to another.
5. Acknowledgment.
As between the parties to an assignment of a deed of trust, a defective acknowledgment does not
invalidate the instrument.
6. Corporations.
Assignment of a deed of trust by original beneficiary to buyers of such deed of trust was not void as
between the parties even though corporate charter of the original beneficiaries was revoked prior to its
assignment of the deed.
7. Bills and Notes.
Where an alleged alteration in a note could not be observed from a casual observation of it, such note
would be deemed complete and regular upon its face, and purchaser thereof could not be deemed not a
holder in due course on theory that mere inspection of such instrument showed it had been altered. NRS
92.035, 92.059, 92.132.
8. Bills and Notes.
Where buyers of a note were holders in due course, fact that makers received no consideration for the
note was no defense as against such buyers. NRS 92.035, 92.059, 92.132.
OPINION
The main question here presented is whether the trial court properly applied the rule, with
respect to negotiable instruments, that as between innocent parties, the one whose negligence
has occasioned the loss must bear it. The facts establish this case as a classic example for the
application of the rule as applied by the district court.
[Headnote 1]
(1) The action to set aside a note and trust deed was commenced by the Allens, husband
and wife, makers of the note and trust deed involved, against Clark County Mortgage
Company, a corporation, payee of the note and beneficiary under the trust deed, which was
the party guilty of the fraud, and the Hernons, husband and wife, who purchased the paper
from the mortgage company. The note and trust deed in the sum of $6,000, both dated as of
September 30, 1955, were executed by the Allens about October 14, 1955, and delivered to
the mortgage company on that date. The trust deed ran to Pioneer Title Insurance and Trust
Company, as trustee. The mortgage company promised to deliver its check to the Allens as
soon as the trust deed was recorded. Mistakes, both as to the date of the note, the maturity of
the note and the interest rate therein specified, required the execution of a second and then a
third note. Mistakes in the description of the property and in other respects required the
execution of a second trust deed and, as the first trust deed had already been recorded,
required the execution of a reconveyance of the land conveyed by the first trust deed.
Although the execution of the second and third notes, the second trust deed and the
reconveyance under the first trust deed occupied a great many pages of the testimony and a
great deal of the argument contained in the briefs, this in no way affects the determination of
the main issue. The mortgage company never paid any money to the Allens. It sold and
assigned the trust deed to the Hernons for a $6,000 cash consideration, which the Hernons
paid to the mortgage company. The Allens alleged that the Hernons took the paper with
knowledge of the fact that the Allens had received no consideration for the same. The court,
however, made specific findings to the effect that the Hernons took without any knowledge of
the situation, and there is ample evidence in the record to support this finding. It specifically
found that the allegation of the complaint that the Hernons took with notice was untrue. In its
opinion from the bench, the court said: There is no evidence that the Hernons had any
knowledge of any tricky business, so to speak, by the mortgage company, none at all."
Hernons had any knowledge of any tricky business, so to speak, by the mortgage company,
none at all. The Allens had had prior dealings with the mortgage company, had borrowed
money from it, reposed confidence in it, put their note and deed of trust in its hands, even
executed a second and third note and a second trust deed, relied upon its promise that it
would pay them the proceeds. That this trust was misplaced, that the Allens received no
consideration, that they were defrauded, are unfortunate and tragic facts. The judgment they
received against the mortgage company is, we judge from the record, worthless. The
mortgage company is insolvent. Its affairs were the subject of a grand jury investigationall
matters of little consolation to the Allens, who must suffer the loss of their misplaced
confidence. The Hernons were holders in due course under the provisions of our negotiable
instruments law, NRS 92.059, 92.066, free from defenses available to the Allens against
the mortgage company, id. 92.064.
[Headnote 2]
(2) Error is assigned in giving effect to the deed of trust because it was proved that Donald
A. Hulihan, an agent of the mortgage company, who executed the certificate of
acknowledgment by the Allens, was not at the time a notary public. Appellants refer to our
statutes requiring acknowledgment of instruments conveying real property and providing that
upon such acknowledgment they may be recorded. Picetti v. Orcio, 57 Nev. 52, 58 P.2d 1046,
57 Nev. 65, 67 P.2d 315, is cited by appellants in support of the contention that the defective
acknowledgment made the instrument void. Such is not the holding of the case, nor are the
facts in point. Appellants refer to many cases in which the certificate of acknowledgment for
one reason or another has been held void. We are here concerned, however, with the simple
question whether lack of an acknowledgment or a defective acknowledgment before a notary
public rendered the deed of trust void as between the Allens and the mortgage company on
the one hand and the Hernons on the other hand as transferees of the mortgage company.
Such is not the case. The statutory provisions relating to the acknowledgment and recordation
of such instruments are for the protection and security of creditors and purchasers. Such
provisions do not prevent the passing of title by the grantor to the grantee. Kimbro v. Kimbro,
199 Cal. 344, 249 P. 180, citing 1 Devlin on Real Estate, 3d Ed., 817. In American Law of
Property, vol. III, sec. 12.60, page 307, it is said: However, except as made so by statute, the
certificate of acknowledgment is not a part of a deed and is required only for the purpose of
entitling it to be recorded and to be received in evidence without other proof of execution.
No statute of this state voids a deed, as between the parties, for failure of acknowledgment.
[Headnote 3]
(3) Appellants insist, however, that in any event the lack of an acknowledgment certificate
by a duly authorized notary public on the deed of trust rendered the instrument void because
the property comprised the unrecorded homestead of the parties, and that in such case under
NRS 123.230 the improperly acknowledged deed of trust was void. That section provides:
That no deed of conveyance or mortgage of a homestead as now defined by law, regardless
of whether a declaration thereof has been filed or not, shall be valid for any purpose whatever
unless both the husband and wife execute and acknowledge the same as now provided by law
for the conveyance of real property. It is true that appellants lived upon the premises and
made it their home. However, the record shows that they held the property not as community
property but in joint tenancy. Accordingly, NRS 123.230 has no application. Mullikin v.
Jones, 71 Nev. 14, 278 P.2d 876.
[Headnote 4]
(4) Appellants also assert that the assignment of the deed of trust from the mortgage
company to the Hernons was void because it purported to be acknowledged before one
Donald Aguirre who likewise was not at the time a notary public. Aguirre executed a
certificate of corporate acknowledgment of the execution of this instrument.
What we have said with reference to the acknowledgment of the deed of trust by the Allens
applies to like extent to the acknowledgment of the assignment.
[Headnote 5]
(5) It is further contended that the assignment was void because it did not contain the
corporate seal. This contention is made without support and is without merit. It is contended
that the assignment was void because Ressell and Hulihan, who signed, respectively, as
president and secretary, were not such corporate officers. Several of the instruments received
as exhibits in the case were executed in the name of the corporation by Ressell and Hulihan
as president and secretary respectively, and bore the corporate seal. By reason of the
assignment of the promissory note and by reason of the assignment, thus executed, of the
deed of trust securing same, the Hernons, having been issued a policy of title insurance from
Pioneer Title and Trust Company to the effect that the assignment was good and valid and
vests title to such beneficial interest in the Hernons, authorized the release to the mortgage
company of the $6,000 it had deposited for the purpose with the title company. Under these
circumstances the learned trial judge refused to accept the contention of the Allens that these
circumstances were all nullified by a certificate from the secretary of state showing that in the
previous year filings in his office showed persons other than Ressell and Hulihan to be such
officers. We see no error in this conclusion. Appellants further contend that the assignment of
the deed of trust was void because the statutory form of corporate acknowledgment was not
followed in the notarial certificate. As between the parties a defective acknowledgment,
however, does not invalidate the instrument. Perris v. Perris, 115 Utah 128, 202 P.2d 731;
Cornett v. Maddin, 277 Ky. 480, 126 S.W.2d 871. See Tiffany on Real Property, Vol. 9, p.
185, sec. 1027.
[Headnote 6]
Appellants also assert that the assignment of the deed of trust by the mortgage company to
the Hernons was void because of the secretary of state's further certificate that its charter
was revoked the first Monday in March, 1956, "for failure to file said list and pay the
statutory fee and penalty of $7.50."
void because of the secretary of state's further certificate that its charter was revoked the first
Monday in March, 1956, for failure to file said list and pay the statutory fee and penalty of
$7.50. Again, as between the parties to the instrument, it was not for this reason void. See
Porter v. Tempa M. & M. Co., 59 Nev. 332, 93 P.2d 741.
[Headnote 7]
(6) It is further contended that the Hernons were not holders in due course because at the
time of their acceptance of the note from the mortgage company the same contained an
apparent alteration. When this point was urged to the district court, that court said: [I]t
cannot be observed from a casual observation of it that there was any erasure made, I do not
think it is sufficient to put one on notice in my opinion, if I were accepting the paper, I
certainly wouldn't regard that as an alteration. I couldn't from its formal appearance. Now,
maybe it was, I don't know, maybe a handwriting examiner of questioned documents might
put this under a highpowered microscope and he might discover that it had been altered, but
certainly a person in the ordinary course of business would not regard that as being an
alteration in my opinion. Under such circumstances the trial court was justified in holding
that the note was complete and regular upon its face. NRS 92.059. The authorities cited by
appellant to the effect that when a mere inspection of an instrument shows that it has been
altered, a purchaser is not a holder in due course, because such note is not regular on its face
(NRS 92.132, defining an alteration which changes the date as a material alteration) are
accordingly not in point.
[Headnote 8]
(7) Appellants contend that the facts show a total failure of consideration passing to the
Allens. Since the Hernons were holders in due course, this was no defense as against them.
NRS 92.035.
(8) Appellants contend that the trial court was in error in holding that the
acknowledgments of the instruments were valid. The court did not so hold. It held that the
instruments, as between the parties and as affecting the Hernons, were valid.
the instruments, as between the parties and as affecting the Hernons, were valid.
(9) Appellants further contend that the court erred in not holding against the Hernons
because the latter were under the duty and obligation of inquiry to determine authority of
corporate officers to endorse or transfer corporate instruments. In support of this contention
appellants cite: Hardy v. Black Mammoth M. Co., 47 Nev. 275, 220 P. 241, and Burnham
Loan & Investment Co. v. Sethman, 64 Col. 189, 171 P. 884, L.R.A. 1918F, 1158. These
cases do not support appellants' contention. Under the facts found there were no
circumstances that put a duty of inquiry on respondents. See 66 C.J.S. 642, Notice, sec. 11.
The Hernons had filed a cross complaint in the action seeking foreclosure of their deed of
trust, making the title company a cross defendant in order to dispose of all interests. The
court, in leaving the parties where it found them, upheld the lien of the deed of trust but
refused to order a foreclosure. No cross appeal was taken. The mortgage company, as above
noted, acknowledged its fraud and confessed judgment. Neither the mortgage company nor
the title company are respondents in the present appeal. Accordingly, though these matters are
discussed in the briefs, no issues arising out of these circumstances are presented to us.
____________
74 Nev. 246, 246 (1958) Groesbeck v. City of Ely
BERT GROESBECK, Appellant, v. THE HONORABLE MAYOR and CITY COUNCIL of
the CITY of ELY, Respondents.
No. 4085
July 15, 1958. 328 P.2d 566.
Appeal from the Seventh Judicial District Court, White Pine County; Harry M. Watson,
Judge.
Owner, whose application for permit to move dwelling house into city was denied by city
council, filed a petition for writ of mandate commanding issuance of permit or, in the
alternative, a writ of certiorari to review action of city council in refusing to issue the permit.
The lower court entered judgment denying both writs, and the owner appealed. The Supreme
Court, Eather, J., held that where city council denied application for permit without giving
any reason for doing so, and city council was without any apparent ground for denying the
permit, action of city council was arbitrary, and owner was entitled to a permit as a matter of
right.
Reversed and remanded with instructions that peremptory writ of mandate issue.
Jon R. Collins, of Ely, for Appellant.
Robert R. Gill, of Ely, for Respondents.
1. Municipal Corporations.
If building code requirements of city were met by owner who applied for permit to move dwelling house
into city, and no legal impediment existed, owner was entitled to the permit as a matter of right.
Order of city council denying application of owner for permit to move dwelling house into city was
required to set forth grounds of the denial.
Language shack as that term is generally understood as used in earlier city ordinance providing that no
building or structure which may be termed a shack as that term is generally understood shall be
constructed within limits of city, or be removed from one location to another within city limits, or be
moved into city, is entirely too vague and too devoid of objective standards of construction in
light of detailed structural requirements of subsequent building code of city to qualify
prohibition as a "more restrictive limitation" than provided by the subsequent
building code, and therefore earlier ordinance was superseded by adoption of
building code.
objective standards of construction in light of detailed structural requirements of subsequent building code
of city to qualify prohibition as a more restrictive limitation than provided by the subsequent building
code, and therefore earlier ordinance was superseded by adoption of building code.
Where owner applied for permit from city to move dwelling house into city, and city council denied
application for permit without giving any reason for doing so, and city council was without any apparent
ground for denying the permit, action of city council was arbitrary, and owner was entitled to a permit as a
matter of right.
OPINION
Appellant seeks a permit from the city of Ely granting permission to move a dwelling
house into the city to be placed upon property owned by appellant. This appeal is taken from
judgment of the trial court upholding the city in its refusal to grant the permit. Appellant
petitioned the trial court for a writ of mandate commanding the issuance of the permit or, in
the alternative, a writ of certiorari to review the action of the city council in refusing to issue
it. Both writs were denied and this appeal was taken. The basis upon which appellant sought
his writs was that the mayor and city council had acted arbitrarily in refusing to grant the
permit. Upon applying for permit, appellant presented evidence to the council to the effect
that, although certain repairs were needed, the building was structurally safe with substantial
floor joists and a perfectly safe floor, and that it would not detract from the neighborhood to
which it was to be moved since it was as good as or better than the average of the buildings in
that neighborhood. In denying the permit no reason for such action was given by the council.
None was given to the court below.
On August 15, 1955, the city, by ordinance, adopted the National Building Code
recommended by the National Board of Fire Underwriters which, in part, specifies in
considerable detail the minimum structural requirements of buildings thereafter to be
erected, altered, or brought within the city.
in considerable detail the minimum structural requirements of buildings thereafter to be
erected, altered, or brought within the city. It is conceded by counsel that the section of the
code relating to permits reads as follows: No building or structure shall be built, enlarged,
altered or moved without a permit from the building official who may require a plan of the
proposed work, together with a statement of the materials to be used.
[Headnotes 1, 2]
If a permit under this section is to be denied it must be for failure of the applicant to
establish that the work for which he seeks the permit meets the requirements of the code. If
the code requirements are met and no legal impediment exists, he is entitled to his permit as a
matter of right. In the absence of code deficiencies and any other legal obstacles, refusal to
grant the permit must be held to be arbitrary action not contemplated by the permit
requirement. Tillotson v. City Council of City of Cranston, 61 R.I. 293, 200 Atl. 767; City
Council of Denver v. United Negroes Protective Assn., 76 Colo. 86, 230 P. 598; 9
McQuillan, Municipal Corporations, 3d Ed. 499, sec. 26.211. An order denying permit must,
then, set forth the grounds of such denial. Tillotson v. City Council of City of Cranston,
supra.
Respondents refer us to an earlier ordinance which reads in part as follows: All building
materials used in the construction of buildings shall be of good quality and no building or
structure which may be termed a shack as that term is generally understood shall be
constructed within the limits of the city of Ely, nor shall such shack be removed from one
location to another within the city limits, nor moved into said city limits. This ordinance also
required a city permit for moving of a building into the city. Respondents concede that this
ordinance has been generally superseded by adoption of the building code, but contend that
the quoted section remains effective. They refer to a section of the building code providing,
Nothing in this code shall be construed to prevent the enforcement of other laws which
prescribe more restrictive limitations. It is contended that the "shack" prohibition of the
earlier ordinance constitutes a "more restrictive limitation" under the building code and
thus has not been superseded.
the shack prohibition of the earlier ordinance constitutes a more restrictive limitation
under the building code and thus has not been superseded. It is contended that we may infer
that the ground for denial of the permit was that the mayor and city council had determined
that appellant's building was a shack.
[Headnote 3]
In our view the language shack as that term is generally understood is entirely too vague
and too devoid of objective standards of construction in the light of the detailed structural
requirements of the code itself to qualify the prohibition as a more restrictive limitation
than is provided by the building code. We must hold, then, that the quoted section of the
earlier ordinance was superseded by the adoption of the building code.
[Headnote 4]
This leaves the city without any apparent ground for denial of the permit. Upon the record,
in the absence of specification of grounds, this action must be held arbitrary.
Reversed and remanded with instructions that a peremptory writ of mandate issue from the
trial court to the mayor and city council of the city of Ely, commanding that, in the
alternative, they issue the permit sought by appellant or specify grounds for its refusal under
the city's building code.
____________
74 Nev. 250, 250 (1958) Dickerson v. Short
In the Matter of the Application by HARRY SHORT for a Writ of Habeas Corpus by and
on Behalf of RAYMOND SHORT.
HARVEY DICKERSON, Attorney General of Nevada, Appellant, v. RAYMOND
SHORT, a Child Under the Age of Eighteen Years, Respondent.
No. 4084
July 16, 1958. 328 P.2d 299.
Appeal from order of the Second Judicial District Court, Washoe County; Gordon W.
Rice, Judge, Department No. 3, granting discharge under habeas corpus.
The lower court entered order discharging a minor from custody of juvenile officer of
Washoe County. The state appealed. The Supreme Court held that where juvenile division of
Elko District Court entered order committing child under 18 to Nevada School of Industry in
Elko and boy escaped and fled to home of his father in Washoe County and Washoe County
juvenile officer asserted authority over boy on behalf of Elko District Court and School of
Industry, the Washoe District Court had no authority, in instant proceeding, to remand boy to
custody of father and to discharge boy from custody of juvenile officer of Washoe County.
Reversed.
Harvey Dickerson, Attorney General, of Carson City; Grant Sawyer, of Elko, Special
Deputy Attorney General, for Appellant.
Richards and Swanson, of Reno, for Respondent.
1. Courts.
The state's authority under the Juvenile Court Act over a child found to fall within the purview of the Act
is exercised exclusively by juvenile division of district court, and once such court has properly brought the
child within state supervision under the Act, and for so long as that court retains jurisdiction, no other court
has power to take any action affecting the state's authority. NRS 62.010 et seq., 62.040, 62.070.
2. Courts.
The provision that nothing contained in the Juvenile Court Act shall deprive other courts of the right to
determine the custody of children upon writ of habeas corpus or to determine the custody or guardianship
of children in divorce or domestic relations cases does not affect the authority of the state as granted by the
Act; the provision is operative in cases involving questions of custody or guardianship apart from the state's
authority over the child. NRS 62.040.
3. Courts.
Under the Juvenile Court Act, the juvenile division of the district court has exclusive jurisdiction to make
all determinations relating to the manner in which the state's authority should be exercised in the child's
own best interests. NRS 62.040.
4. Habeas Corpus.
If a child is not properly brought within the purview of the Juvenile Court Act, the propriety of his
detention may be questioned by the writ of habeas corpus, and if he is properly brought within the purview
of the Act and is properly detained pursuant to the Act he is not entitled to discharge under habeas corpus.
NRS 62.010 et seq.
5. Habeas Corpus.
Where juvenile division of Elko District Court entered order committing child under age 18 to Nevada
School of Industry in Elko and boy escaped and fled to home of his father in Washoe County and Washoe
County juvenile officer asserted authority over boy on behalf of Elko District Court and School of Industry,
the Washoe District Court had no authority, in a habeas corpus proceeding, to remand boy to custody of
father and to discharge boy from custody of juvenile officer of Washoe County; if changed conditions
warranted discharge from the school, application must be made to Juvenile Division of Elko District Court
which, under the Juvenile Court Act, retained exclusive jurisdiction over the boy with respect to all such
matters. NRS 62.010 et seq.
OPINION
Per Curiam:
This is an appeal taken by the State through the Attorney General from an order of the
Washoe County district court in habeas corpus discharging a minor from the custody of the
juvenile officer of Washoe County.
On June 6, 1957 the juvenile division of the Elko district court entered an order
committing Raymond Short, a child under the age of 18 years, to the Nevada School of
Industry in Elko.
of Industry in Elko. On December 1, 1957 the boy escaped from the school and fled to the
home of his father, Harry Short, in Sparks, Washoe County. The Washoe County juvenile
officer asserted authority over the boy on behalf of the Elko court and the School of Industry.
The father secured a writ of habeas corpus from the district court of Washoe County. Hearing
was had before the court below which, upon the basis of changed circumstances relating to
the boy and to his home environment, ordered his discharge from custody of the juvenile
officer and remanded him to the custody of his father. This appeal was then taken.
[Headnote 1]
The Juvenile Court Act is found in ch. 62, NRS. With reference to proceedings under the
act, sec. 62.040 provides Except as otherwise provided in this chapter the [juvenile division]
shall have exclusive original jurisdiction in proceedings. NRS 62.070 provides When
jurisdiction shall have been obtained by the [juvenile division] in the case of any child, the
court shall retain jurisdiction of the child until it reaches the age of 21 years.
The State contends that its authority under the Juvenile Court Act, over a child found to
fall within the purview of the act, is exercised exclusively by the juvenile division of the
district court; that once such court has properly brought a child within State supervision under
the act, and for so long as that court retains jurisdiction, no other court has power to take any
action affecting the State's authority. In our view this is the proper construction to place upon
the provisions of the act.
[Headnotes 2, 3]
Respondent-petitioner directs our attention to the following language of NRS 62.040,
Nothing contained in this chapter shall deprive other courts of the right to determine the
custody of children upon writs of habeas corpus, or to determine the custody or guardianship
of children in divorce or domestic relations cases. It was pursuant to this language that the
court below entertained jurisdiction to remand the child to the custody of his father.
pursuant to this language that the court below entertained jurisdiction to remand the child to
the custody of his father.
In our view this language cannot be construed to affect the authority of the State as granted
by the act. It must be held to be confined to questions of custody or guardianship apart from
the State's authority over the child. To construe the section otherwise would be to deprive the
juvenile division of that jurisdiction which the act obviously intended it should have and have
exclusively: the jurisdiction to make all determinations relating to the manner in which the
State's authority should be exercised in the child's own best interests. State Ex Rel. Graham v.
Graham, 173 La. 469, 137 So. 855; Thompson v. Thompson, 4 W.W.Harr. 156, 34 Del. 156,
145 A. 9.
[Headnote 4]
Respondent contends that this is an unconstitutional infringement upon the writ of habeas
corpus. This is not so. The writ remains unimpaired. If a child is not properly brought within
the purview of the act the propriety of his detention may certainly be questioned by the writ.
If he is properly brought within the purview of the act and is properly detained pursuant to the
act, he is not entitled to discharge under habeas corpus.
[Headnote 5]
The court below was, then, without authority to remand the child to the custody of his
father and to discharge him from the custody of the juvenile officer of Washoe County. If
changed conditions are felt to warrant a discharge from the Industrial School, application
must be made to the juvenile division of the Elko district court which retains exclusive
jurisdiction over the boy with respect to all such matters.
Reversed and remanded with instructions that the order of discharge be set aside and that
Raymond Short be remanded to the custody of the juvenile officer of Washoe County.
____________
74 Nev. 254, 254 (1958) Watson v. Koontz
HARRY M. WATSON, Petitioner, v. JOHN KOONTZ, as Secretary of State of the State of
Nevada, Respondent.
No. 4130
July 14, 1958. 328 P.2d 173.
Proceeding on application for a peremptory writ of mandate to compel Secretary of State
to accept and file applicant's declaration of candidacy. The Supreme Court held that under
statute providing that candidates shall file their declarations of candidacy not less than 50
days prior to the primary, the 50th day prior to the primary election is the last day upon which
a candidate may file his declaration and a declaration tendered for filing on 50th day must be
accepted by Secretary of State.
Petition granted.
Samuel B. Francovich, Peter Echeverria, Harold O. Taber, and J. Rayner Kjeldsen, all of
Reno, for Petitioner.
Harvey Dickerson, Attorney General, of Carson City, for Respondent.
Time.
Under statute providing that candidates shall file their declarations of candidacy not less than 50 days
prior to primary, 50th day prior to primary election is last day upon which a candidate may file his
declaration and a declaration tendered for filing on the 50th day must be accepted by Secretary of State.
NRS 294.035, 294.120.
OPINION
Per Curiam:
This matter is before this court on application of Harry M. Watson for a peremptory writ
of mandate compelling John Koontz, as Secretary of State of the State of Nevada, to accept
and file the petitioner's declaration of candidacy for district judge of the Seventh judicial
district court. Respondent has refused to accept the declaration for filing upon the ground
that it has not been filed within the time provided by law.
the declaration for filing upon the ground that it has not been filed within the time provided
by law. NRS 294.120 provides that not less than 50 days prior to the primary candidates
shall file their declarations of candidacy. The primary election has been fixed by law for
September 2. NRS 294.035. It is conceded by both parties that today, July 14, is the 50th day
prior to the primary. The sole question in dispute is whether, under NRS 294.120, the 50th
day prior to the primary is the last day upon which declarations may be filed, or whether the
last day is the 51st day. If the 51st day is the last day for filing, petitioner's filing comes too
late.
Upon this issue respondent relies upon Seawell v. Gifford, 22 Ida. 295, 125 P. 182,
Ann.Cas. 1914(A) 1132. The rule there announced was to the effect that under an identical
statutory requirement a full interval of 50 days must elapse between the day of filing and the
day of the election and that the last day for filing would thus be the 51st day prior to the
election. Respondent points out that the Idaho case was relied upon by this court in its
decision in State Ex Rel. George B. Thatcher v. Brodigan, 37 Nev. 458, 142 P. 520.
Such reliance was, however, upon a different point of law involving the time for filing
where the final day as fixed by law falls upon a nonjudicial day. The facts disclose that the
nonjudicial day in question was Sunday, the 30th day prior to the day of election. Our statute
then required filing at least 30 days prior to the primary election. Stat. 1913, c. 284, sec. 7.
In determining what was the last day for filing it was apparently conceded by the parties and
accepted by this court that under Nevada law the 30th day prior to the day of election was the
last day to file. Clearly the Idaho rule in this respect was not followed in that case.
This construction was definitely adopted by this court in McCulloch v. Bianchini, 53 Nev.
101, 292 P. 617, 297 P. 503, dealing with the giving of notice of a school election. The words
not less than ten days before were construed to permit the giving of notice on the 10th day.
In the same case this court decided that the method of computation of time as provided in
the Civil Practice Act {by excluding the first day and including the last day in the count)
was applicable in such cases.
computation of time as provided in the Civil Practice Act (by excluding the first day and
including the last day in the count) was applicable in such cases.
The construction contended for by the petitioner has, therefore, been tacitly accepted by
this court in one case and affirmatively adopted in another. Furthermore, it would seem to us
to be the more reasonable construction. Under common usage, one day prior to Tuesday is
not Sunday, but Monday. By the same token 50 days prior to any Tuesday is a Monday, as
in the case before us, while 30 days prior to any Tuesday is a Sunday, as in the Brodigan
case.
We conclude that under Nevada law the 50th day prior to the primary election is the last
day upon which a candidate may file his declaration. This being so, a declaration tendered for
filing on the 50th day must be accepted by the Secretary of State.
It is, therefore, ordered that a peremptory writ of mandate issue, directed to the respondent
John Koontz, as Secretary of State of the State of Nevada, requiring that he accept the
declaration of candidacy of the petitioner tendered to him this day.
Dated: July 14, 1958.
____________
74 Nev. 256, 256 (1958) Ex Parte Greenspun
IN THE MATTER OF THE APPLICATION OF HANK GREENSPUN, Also Known as
HERMAN GREENSPUN, for a Writ of Habeas Corpus.
No. 4112
July 21, 1958. 328 P.2d 297.
Original petition in habeas corpus for discharge from confinement upon criminal charge of
blackmail. Upon the ground that no reasonable or probable cause for commitment has been
established.
Petitioner ordered discharged from confinement.
Springmeyer & Thompson, of Reno, and Morton Galane, of Las Vegas, for Petitioner.
George G. Holden, District Attorney, Lander County, and Ernest S. Brown, of Reno, for
Respondent.
1. Criminal Law.
Evidence presented by state at preliminary hearing was insufficient to establish reasonable or probable
cause to believe that accused had committed crime of blackmail. NRS 205.320, subds. 1, 3-5.
2. Threats.
The gravamen of the crime of blackmail is a threat made for a certain unlawful purpose. NRS 205.320,
subds. 1, 3-5.
3. Criminal Law.
Actions of petitioner in Clark County during trial and in Lander County, to which trial judge returned
after trial, in attempting to secure favorable judicial action from trial judge could not be taken together to
constitute a single continuing effort to secure favorable judicial action, and crime of blackmail could not be
said to have been committed in either county. NRS 205.320, subds. 1, 3-5.
4. Threats.
Blackmail contemplates influencing to favorable action through a withholding of disclosure rather than
discrediting other persons through the making of disclosure. NRS 205.320, subds. 1, 3-5.
OPINION
Per Curiam:
[Headnote 1]
This is an original petition in habeas corpus for the petitioner's discharge from
confinement. His confinement is upon a charge of the crime commonly known as blackmail.
He contends that his commitment is without reasonable or probable cause.
Following preliminary hearing before the justice of the peace of Austin township, Lander
County, petitioner was ordered held to answer to the Third judicial district court upon a
finding of probable cause to believe him guilty of the crime charged. Our question is whether
the evidence presented by the State at the preliminary hearing may be said to have established
reasonable or probable cause. If such cause does not exist, petitioner is entitled to discharge
on habeas corpus. NRS 34.500(7).
The crime is defined in NRS 205.320. As applied to the facts of this case, the pertinent
provisions are as follows: "Every person who with intent thereby to * * * influence the
action of any public officer * * * shall threaten directly or indirectly, {1) to accuse any
person of a crime; or * * * {3) to publish or connive at publishing any libel; or {4) to
expose or impute to any person any deformity or disgrace; or {5) to expose any secret
[shall be guilty of a felony]."
follows: Every person who with intent thereby to * * * influence the action of any public
officer * * * shall threaten directly or indirectly, (1) to accuse any person of a crime; or * * *
(3) to publish or connive at publishing any libel; or (4) to expose or impute to any person any
deformity or disgrace; or (5) to expose any secret [shall be guilty of a felony].
The State charges this petitioner, the publisher of a Las Vegas newspaper, with seeking to
influence the action of the Honorable John F. Sexton, district judge of Lander County, in
connection with a suit for libel brought against petitioner in Clark County, over the trial of
which Judge Sexton was presiding. Trial of the libel suit was had in Clark County and
resulted, September 26, 1956, in judgment against petitioner. Subsequently, motions for new
trial and for judgment non obstante veredicto were made by petitioner. On December 19,
1956 petitioner sought to disqualify Judge Sexton from ruling on the motions and to secure an
order substituting another judge. On December 21, 1956 Judge Sexton refused to disqualify
himself and proceeded to deny the motions made by petitioner.
In support of its charge the State at the preliminary hearing presented evidence of acts
occurring in Clark County during trial and occurring in Lander County after trial and pending
disposition of the posttrial motions, Judge Sexton having returned to his home in Lander
County during this period.
[Headnotes 2, 3]
We need not discuss the acts petitioner is said to have committed in Clark County. He
stands accused of the commission of a crime in Lander County. The gravamen of that crime is
a threat, State v. Peters, 37 La.Ann. 730; made for a certain unlawful purpose, Ex Parte
Esden, 55 Nev. 169, 28 P.2d 132. The State contends that all of the acts in both counties
taken together constitute a single continuing effort to secure favorable judicial action; that the
crime may therefore be said to have been committed in either county. This proposition we
must reject. In order to establish the commission of the crime, the continuing effort must
have culminated at some point in a threat.
the continuing effort must have culminated at some point in a threat. Until that point was
reached the crime here charged cannot be said to have been committed. There must, then, be
reasonable or probable cause for belief that a threat was made directly or indirectly in Lander
County.
The occurrences in Lander County resulted from an investigation of Judge Sexton by one
Wilbur McNinch, employed by petitioner. The alleged libel which was the subject of the
pending suit was the publication in petitioner's newspaper of a story respecting the manner in
which the plaintiff had handled the adoption of a baby which characterized the proceedings as
a blackmarket sale of the child. The Lander County investigation by McNinch was into the
manner in which Judge Sexton had for himself and his wife secured the adoption of a child. It
is clear and is conceded that the purpose of the investigation was to secure proof that Judge
Sexton himself had followed the practices which petitioner's newspaper had characterized as
blackmarket and thus to establish bias on the part of Judge Sexton for the purpose of
compelling his disqualification from presiding further over matters connected with the case.
The theory of the State is that the occurrences in Lander County constituted an indirect threat
to disclose the facts regarding Judge Sexton's adoption unless the judge disqualified himself.
The State relies on two incidents as constituting an indirect threat.
(1) An inquiry by McNinch of the Lander County clerk relative to the procedures followed
in the case of the Sexton adoption. Judge Sexton was advised by the clerk of the fact that
inquiry had been made. The State regards this inquiry by McNinch as amounting to an
intentional threatening communication by him to Judge Sexton of the fact that an
investigation was in progress since McNinch must have known that the county clerk would
notify the judge of the facts. We do not regard this incident as of any significance. The county
clerk's office is a most logical place to make inquiry regarding judicial proceedings. It is
therefore difficult to read sinister implications into the fact that such an inquiry was made.
implications into the fact that such an inquiry was made. The Judge himself testified at the
preliminary hearing (as did his wife) that he had taxed McNinch with being an investigator
and that McNinch had flatly denied it. This is entirely inconsistent with any intent on the part
of McNinch and petitioner that the Judge have knowledge of the fact that he was being
investigated. On the contrary, it would indicate an intent to conceal the fact of investigation.
(2) A conversation between McNinch, the judge, and the judge's wife, in which McNinch,
it is contended, disclosed his true motive by stating that every man had his price if pressure
were sufficiently applied. The subject was not raised by McNinch, however, but by Mrs.
Sexton. She testified: Mr. [McNinch] was sitting on my left and when there my husband
accused him of being an investigator * * * and [he] denied this unequivocally and [he] was
saying, well he said if he wanted an investigation made, he said, I would hire hoods to do it
instead of messing around with it myself,' and I said, Well, how does one become so
connected that they can speak casually of hoods,' and he said, Wherever there is easy money
to be made there are hoods around willing to get some of it and to do a dirty job,' and I said,
Well, then, you think that everybody can be purchased,' and he said, Every man has his
price.' I said, You think everybody can be pressured or bought.' Well, let's put it this way,'
he said, every man can be pressured into doing something if the pressure is brought to bear
in the right place.'
In each instance Mrs. Sexton put the question which required an answer. If an opinion was
expressed it was because she had requested it. The opinion, upon the record, would appear to
be confined to McNinch's ability to buy the services of a hood. We regard this testimony as
wholly insufficient to establish a criminal intent or constitute a threat.
Not only is it difficult to discover an indirect threat from these incidents, but the purpose
to which the investigation was subsequently put convincingly establishes that no threat was
intended.
If the incidents are to support the charge of blackmail they must add up to an indirect
communication from petitioner to Judge Sexton, substantially to the following effect: Judge
Sexton, unless you disqualify yourself in the pending libel suit, I shall expose the unlawful
adoption of a child by you and Mrs. Sexton.
Petitioner did not solicit a voluntary withdrawal by Judge Sexton. The first attempt to
secure his disqualification occurred December 19, 1956. On that date the facts of the
investigation were set forth in affidavits filed in the Clark County court. On the same day
petitioner's newspaper featured the filing in a prominent page 1 story. Instead of threatening
to expose, petitioner exposed.
[Headnote 4]
The State throughout appears to have disregarded the distinction between a threat to
accuse and the accusation itself. Blackmail contemplates the influencing to favorable action
through a withholding of disclosure rather than the discrediting of a person through the
making of disclosure.
We conclude that there is no reasonable or probable cause to believe that petitioner has
committed the crime with which he is charged and for which he has been held to answer.
It is ordered that petitioner be discharged from confinement.
____________
74 Nev. 262, 262 (1958) Cook v. Faria
CHARLES COOK and ELIZABETH COOK, Husband and Wife, Appellants, v. GENEVA
FARIA, Respondent.
No. 3985
August 11, 1958. 328 P.2d 568.
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Action by automobile passenger against wife, who drove automobile, and her husband, for
personal injuries sustained when automobile upset. The trial court entered judgment for
passenger and defendants appealed. The Supreme Court, 73 Nev. 295, 318 P.2d 649, affirmed
judgment. On rehearing the Supreme Court held that although automobile involved in
accident was community property of both husband and wife, wife's negligence in driving
automobile could not be imputed to husband in absence of showing that husband, who was
passenger in automobile, took any part in directing wife as to what roads to follow or how to
operate automobile, that wife sought advice or assistance from husband or that husband had
function as lookout for any of the other occupants of automobile.
Reversed as to appellant Charles Cook.
Williams and Mann, of Elko, for Appellants.
Perce Hall, Mountain Home, Idaho, and Orville R. Wilson, Elko, for Respondent.
Negligence.
Although automobile involved in accident was community property of both husband and wife, wife's
negligence in driving automobile could not be imputed to husband in absence of showing that husband,
who was passenger in automobile, took any part in directing wife as to what roads to follow or how to
operate automobile, that wife sought advice or assistance from husband or that husband had function as
lookout for any of the other occupants of automobile.
Opinion on Rehearing
Per Curiam:
On the original submission of this appeal we affirmed the judgment against both appellant.
73 Nev. 295, 318 P.2d 649.
74 Nev. 262, 263 (1958) Cook v. Faria
P.2d 649. As to the question of simple negligence on the part of Mrs. Cook, we said:
Reasonable minds might well differ upon the question whether the acts of Mrs. Cook
violated the standard of conduct of a reasonable man and a jury finding of simple negligence
would not be disturbed under these circumstances. We thereafter granted a rehearing on the
issue whether upon the law and the facts the record could support judgment against Charles
Cook, Elizabeth's husband. Appellant Charles Cook filed a brief on rehearing but no brief has
been filed on behalf of the respondent.
The acts of negligence in support of the judgment heretofore affirmed were all the acts of
Elizabeth Cook, driver of the car in question. Appellant refers to additional facts as follows:
The 1953 Dodge Sedan was referred to as our car' and it may be conceded that the car
was the community property of both defendants in the action.
There is a complete absence of any testimony that Charles Cook took any part in directing
his wife, Elizabeth, as to what roads to follow or how to operate the car. Elizabeth Cook
drove the entire distance of the trip and did not seek advice or assistance from Charles Cook.
He had no function as a lookout for any of the other occupants of the car. This is not
controverted by respondent. Judgment against Charles Cook can, therefore, be supported only
if his wife's negligence can be imputed to him. The doctrine of such imputed negligence has
never been adopted in this state. See Fredrickson & Watson Const. Co. v. Boyd, 60 Nev. 117,
102 P.2d 627. There is, accordingly, nothing to support the judgment against appellant
Charles Cook. As to him, the judgment is reversed. No costs are allowed on the rehearing.
Remittitur may issue forthwith.
____________
74 Nev. 264, 264 (1958) Kerr v. Church
ROBERT TODD KERR and RUTH KERR, Appellants,
v. J. E. CHURCH, Jr., Respondent.
No. 4063
August 13, 1958. 329 P.2d 277.
Action in equity by grantor to cancel and set aside conveyance of realty. The trial court
rendered judgment in favor of plaintiff and entered an order denying defendants' motion for
new trial, and defendants appealed. The Supreme Court, Badt, C. J., held that findings and
judgment canceling conveyance on ground of failure of consideration were supported by
substantial evidence of breach of covenant that grantor should be entitled during his lifetime
to make joint use and have mutual enjoyment of premises with grantee.
Affirmed.
Clyde D. Souter, of Reno, for Appellants.
Springmeyer & Thompson, of Reno, for Respondent.
1. Deeds.
Findings and judgment canceling conveyance of realty on ground of failure of consideration were
supported by substantial evidence of breach of covenant that grantor should be entitled during his lifetime
to make joint use and have mutual enjoyment of the premises with grantee.
2. Deeds.
In suit to cancel conveyance of realty on ground of failure of consideration, provision in deed that grantor
should be entitled during his lifetime to make joint use and have mutual enjoyment of premises with
grantee must be read in the light of grantor's character, with its emphasis upon aesthetic values, and past
relationship of the parties.
3. Deeds.
Failure of grantee to maintain beauty of garden home created by elderly grantor and refusal to permit
grantor to continue to lavish care and attention to enhance and maintain or restore its beauty substantially
limited his right to use and enjoyment in violation of provision of deed that grantor should be entitled
during his lifetime to make joint use and have mutual enjoyment of premises with grantee.
4. Limitation of Actions.
Action in equity to cancel conveyance of realty on ground of failure of consideration was not
subject to five-year statute of limitations applicable to actions for recovery of realty
or possession thereof, particularly where grantor under terms of deed retained joint
possession of realty with grantee to time of commencement of action.
74 Nev. 264, 265 (1958) Kerr v. Church
of failure of consideration was not subject to five-year statute of limitations applicable to actions for
recovery of realty or possession thereof, particularly where grantor under terms of deed retained joint
possession of realty with grantee to time of commencement of action. NRS 11.080.
OPINION
[Headnote 1]
This appeal is taken from a judgment in an action in equity, based upon a general verdict
and upon special findings of a jury canceling and setting aside a deed executed by J. E.
Church, Jr., the respondent herein, to Robert Todd Kerr, one of the two appellants. The
appellants have also appealed from the court's order denying their motion for a new trial.
While the general verdict, the special findings of the jury, the court's findings and conclusions
and the judgment are based upon additional grounds of a fraudulent scheme to acquire
respondent's property and upon false representations, we need consider only the single ground
that there had been a failure of the consideration recited in the deed. We have concluded that
there is substantial evidence to support the findings and judgment in this respect and that the
judgment and order denying new trial must, accordingly, be affirmed.
The deed in question contained the following paragraph: This conveyance is executed by
party of the first part and accepted by party of the second part with the understanding that the
property hereby conveyed with the general furnishings located therein and thereon is being
transferred to party of the second part as the adoptive grandson of party of the first part at the
moderate price of forty-five hundred dollars ($4500.00), by reason of the fact that said party
of the second part plans to preserve the dwelling house located upon said premises in its
present attractiveness and with the further understanding that said party of the first part shall
be entitled during his lifetime to make joint use and have mutual enjoyment of said premises
and property with said party of the second part.
74 Nev. 264, 266 (1958) Kerr v. Church
This opinion deals with that part of the foregoing provisions which provides that the
grantor shall be entitled during his lifetime to make joint use and have mutual enjoyment of
the premises with the grantee. In this respect the jury was asked whether the defendant,
Robert Todd Kerr, did promise and agree that plaintiff, during his lifetime, should be entitled
to make joint use and have mutual enjoyment of said premises and property. The jury
answered in the affirmative. It was then asked, Have the defendants denied to plaintiff the
joint use and mutual enjoyment of said premises and property? and it again answered in the
affirmative. The court's finding in this respect was as follows: 13. The consideration for the
conveyance of said real property by plaintiff to defendant Robert Todd Kerr has substantially
failed in that defendants have denied and do now deny to plaintiff the joint use and mutual
enjoyment of said premises and property, and in that plaintiff has been substantially deprived
by defendants of a home on the premises and has been refused by defendants the care,
respect, comfort and attention which it was intended plaintiff should enjoy. The assertion of
appellants that both the jury's finding and the court's finding are totally devoid of support in
the evidence requires a careful analysis not only of the actions of the defendants but of the
entire situation, background and relationships of the parties with reference to the property.
The property itself is residential property, fronting 100 feet on Fourth Street and 210 feet
on Washington Street in the city of Reno, and contains a main residence and an additional
cottage in the rear. In 1928 Dr. Church rented the cottage to Ruth Kerr and her husband Frank
and their child Robert Todd Kerr. While Frank and Ruth separated in 1932, they were not
divorced until 1940. From the time of their separation, Ruth and Robert Todd continued to
live on the property until 1943. About that time Ruth moved to San Francisco to obtain
employment and Robert entered the Merchant Marine. From 1932 till 1943 Ruth was Dr.
Church's housekeeper, maintained the home for him, lived there without payment of rent,
received about $10 a month for her services and was also employed in other places.
74 Nev. 264, 267 (1958) Kerr v. Church
and was also employed in other places. She did not live on the property for a period from the
spring of 1943 until the end of May 1946. During that period a Mrs. Demarest and her
daughter lived there. From September 1946 to April of 1949 Robert Todd lived there also,
and during that period Dr. Church was away most of the time. While Mrs. Kerr acted as his
housekeeper, their relations were most friendly and happy. Likewise for a period after her
return from San Francisco in 1945. While she was living at the Colonial Apartments, their
friendship maintained and they met frequently. She asked that Dr. Church take her in. Dr.
Church testified that shortly thereafter Mrs. Kerr stated that Todd needed some help to get
his head above water. The war was then coming to a close . . . and so she asked me if I could
not transfer the home to him so that he would feel that he had something to own. We had
passed through stages in which Todd had expressedor others for himthe deep interest in
the home as a home for his life, . . . and I yielded to that on the ground that there were three or
four things that might be done with the place if they all worked in together [preserving it as a
park, preserving it for the University of Nevada art gallery, for use as an asset for the support
of the art gallery, etc.] and so we went forward with the deed. A diary entry of April 23,
1946 read: Ruth urges early transfer of home. She is ill with waiting . . . A deed was
presented to him without the clause providing that its execution and acceptance were with the
understanding that Church have joint use and mutual enjoyment but, on advice, he rejected
this and the deed was drawn and executed on April 27, 1946 containing the clause above
quoted. At the same time Robert Todd Kerr executed his note for $4400, secured by a deed of
trust. The note was payable on or before 20 years from date, with interest at 4 percent. Dr.
Church's age was then 77. Early the following June, Robert Todd conveyed the property to
himself and his mother as joint tenants.
Dr. Church described the property at the time of the conveyance. He testified that he had
devoted his life to it. We took a large lot and made it over into this park . . .
74 Nev. 264, 268 (1958) Kerr v. Church
Built the barn, and then out of the barn we built the little house . . . planted every kind of
shrubs and bushes and trees I thought might grow . . . cottonwood trees, ash trees, oak trees,
birch trees, willows . . . its gardens, its two lakes, its lawns, its trees, its parks . . . lawns
everywhere and the ivy vines over the walls . . . In other words, one of those quiet places in
which you could go five rods and lose yourself and not realize that you were living in a city
. . . the trees and shrubberies and lawns were in unusually good condition . . . The ponds were
full of water and lilies . . . and I put it up to Todd that he would care for that place for life. He
wanted it as a home, as a place to live, a place to grow up. He had been there since a little boy
of five, and he hesitated and said he didn't want to promise, and that he was willing to try, and
I left it that way, except that I put in the shall' there in the mutual use and enjoyment, which I
considered as mandatory. It is the one thing that I had to tie to. Although Mike Knox,
manager of the local title insurance company thought the mutual use clause might be
difficult, Dr. Church testified further: But on the experience that the two families had had
during these years in the old home there, as well as in the other, I was willing to take a
chance, and there was no doubt at all between us what that meant; we're living together. He
estimated that the $4500 price was half the value. There was no down payment. There was a
gentlemen's agreement that the interest be not paid so that it might accumulate for the benefit
of the art gallery. The transaction was patently not an arm's length sale of real estate.
The foregoing is all background, essential to an appreciation of the construction placed by
the jury and trial judge upon the language of the deed. From these facts it appears that Church
was disposed to enter the transaction because of his affection for Kerr and because of his love
for the home place and his aesthetic satisfaction in its beauty and his expectation that this
arrangement would result in the perpetuation of the home in its present state of beauty.
74 Nev. 264, 269 (1958) Kerr v. Church
[Headnotes 2, 3]
The consideration as expressed, the use and enjoyment by Church, must be read in the light
of the factors peculiar to this case. (1) Church's character, with its emphasis upon aesthetic
values. A failure to maintain the beauty of the place which he had himself created would
substantially affect his enjoyment. A refusal to permit him to continue to lavish care and
attention as he saw fit to enhance and maintain or restore its beauty as he realized it, would
substantially limit his right to use and enjoyment. (2) The past relations of the parties, from
which the trial court read further significance into the language used, to the effect that it was
the intention of the parties that Church should receive care, respect, comfort and attention
of the same kind, character and quality as had been established during the prior relationship.
We turn to the evidence of failure of consideration; an accumulation of incidents which,
under some circumstances, might well seem petty and insignificant but which the jury and
trial judge might well regard as substantial in the case at bar. On Church's return to the
property after an absence of some 19 months in India, South America and elsewhere, engaged
in scientific work, the relations of the parties became strained in many respects. Mrs. Kerr
had formerly served him with breakfast and dinner, for which he paid, but she abruptly
informed him that she could not provide dinner any more but was willing to provide his
breakfast. He found the lake practically dry, pictures had been removed from his room. He
was very fond of an old wood and coal heating stove. This was removed and a gas stove
substituted which failed to keep the house steadily warm. He was given the strong
impression that the house was being run by Mrs. Kerr and that he should keep out. He
strongly felt the prohibition of control. He was frustrated in his desire to put in a line fence
along the garden and pond to have a background for the vines that were growing before that
on the high board fence. Mrs. Kerr insisted that a bit of loose wire would suffice and he let
the matter go.
74 Nev. 264, 270 (1958) Kerr v. Church
would suffice and he let the matter go. He was not permitted to carry out his plans to repair
two pew-like seats on the little raised brick porch at the front door of the small house. In
refusing permission to fix the porch, Mrs. Kerr said that there ought to be only one master
on the place, and she felt that since the deed has been transferred to them that of course she
should be the master. He was denied permission to repair the front door. The north parking
had been left unwatered for a year and a half. Mrs. Kerr objected to his purchase of a long
hose to soak it up. He purchased a 50-foot sprinkler to cover a large portion of the ground
with only a little moving. That was not satisfactory to Ruth and Ruth insisted that I dispose
of it. In other words, I was headed at nearly every turn I made to improve the place . . . There
was an Oregon grape, two Oregon grapes, in front of the door and they were getting pretty
crowded by the grass, and they needed a little spading, they needed a little fertilizer and so on.
I didn't dare ask for it. And the smaller of those two has finally died out and disappeared.
When asked about a large birch tree that he had planted, he answered: I had got so I didn't go
into the back yard at all. He noticed that the birch tree was wilting and bought fertilizer for it
but was not permitted to use it. He purchased four roots of yellow roses to fill in a bare space
but Mrs. Kerr refused to let him plant them. The lily ponds became a dry hole that was being
gradually filled up and it developed that it was Mrs. Kerr's intention to level the whole place
and obliterate the lake entirely. When I came back Todd told me that he thought I wasn't
returning again, and therefore I guess that the whole place was on their hands to do with as
they pleased; and the little gardena tiny lake, which doesn't matter so much, was
completely filled, and the hedge was all cut out in order to make a place for the garage, I
think, below. Many of the plants around the lake did not survive. On one occasion he left an
electric heater on in his bed when he was called to the telephone. He found Todd thoroughly
exasperated at my act and he told me that I should leave the home exceptor at least during
the winter. Then Todd told me that he felt his mother had put in so much time in mowing
the lawn on the place and had purchased groceries so carefullyand she doesthat they
ought to have the place given to them outright."
74 Nev. 264, 271 (1958) Kerr v. Church
me that he felt his mother had put in so much time in mowing the lawn on the place and had
purchased groceries so carefullyand she doesthat they ought to have the place given to
them outright.
During the past five or six years the conditions were such that his normal routine was to
get up in the morning, get his breakfast, get away and stay until time to return and retire. He
had to abandon his habit of taking a hot bath every morning. The only bath water available
later was cold. When he attempted to discuss the matter with Mrs. Kerr, her answer was
negative.
It is our opinion that the jury could have concluded that the foreclosing of any rights to
administration or control of the property by the plaintiff, the cold and callous disregard of one
suggestion after another on his part, the balking of all of his attempts to care for and improve
the property, the expression of views of the defendants that they were the masters and in full
control, all taken together in view of the former relationship of the parties and the former
history of the property, could rightfully, in the judgment of the jury, be considered a serious
breach of the covenant that Dr. Church should be entitled during his lifetime to make joint
use and have mutual enjoyment of the premises. Certainly if the plaintiff had been subjected
to blows and similar abuse while attempting to occupy the premises, it could not be logically
asserted that such treatment was not a breach of that covenant. We consider the situation as
described by him as differing only in degree from his being subjected to blows. This court
said in an early divorce case that there may be extreme cruelty without the slightest violence,
and referred to that more refined brutality which inflicts its violence upon the mind. Reed v.
Reed, 4 Nev. 395 (Vol. 3-4 836). We note that not only did the court follow the advisory
verdict and special findings but made its own similar findings and denied the motion for new
trial.
In recognition of the equitable nature of the action and the conditions attaching to the
equitable relief granted, the court ordered payment by plaintiff to defendants of the sums of
$600 and $1659.53 on account, respectively, of principal and interest on the note.
74 Nev. 264, 272 (1958) Kerr v. Church
respectively, of principal and interest on the note. It found further that though defendants had
paid out $1295.40 for repairs and had paid the taxes, these disbursements had been
outweighed by the value of their use of the main dwelling house and the cottage and by their
receipt of more than $4000 in rentals, and that no further accounting should be required.
These provisions were in order.
We conclude that the findings and judgment find substantial support in the evidence and
that this assignment of error is not well taken. As above noted, we accordingly find it
unnecessary to pass upon appellants' assignments that the findings of conspiracy and
fraudulent representations are without support.
[Headnote 4]
Appellants further contend that plaintiff's action is barred by the statute of limitations.
NRS 11.080 provides: No action for the recovery of real property, or for the recovery of
possession thereof . . . shall be maintained, unless it appear that the plaintiff, his ancestor,
predecessor, or grantor was seized or possessed of the premises in question, within 5 years
before the commencement thereof. The deed in question was executed by respondent April
27, 1946. His action to set aside the conveyance was commenced May 5, 1955beyond the
period of limitations if the statute is applicable. It was, however, recently held in the case of
Cella v. Cosgro, 115 Cal.App.2d 816, 253 P.2d 57, involving a similar statute and under facts
fairly closely corresponding with the present case, that this statutory prohibition is limited to
cases which involve the features of an action in ejectment or to quiet title and has no
application to an action seeking to nullify the act procured by fraud or mistake. And see
Lewis v. Beeks, 88 Cal.App.2d 511, 199 P.2d 413, and Murphy v. Crowley, 140 Cal. 141, 73
P. 820, therein cited. Here plaintiff sought to nullify his deed on account of fraud and failure
of consideration, and although the court found in favor of both of these points, our affirmance
is restricted to the latter. We consider it nonetheless directly within the rule applied in the
California cases.
74 Nev. 264, 273 (1958) Kerr v. Church
in the California cases. It additionally appears here that the present action was neither for the
recovery of the property or the recovery of the possession thereof, as respondent, under the
very terms of the 1946 deed, retained joint possession and was in such possession up to the
very time when he commenced his action to set such deed aside. We, accordingly, find no
error in the action of the court denying the two motions to dismiss based upon this ground.
____________
74 Nev. 273, 273 (1958) Nev. Tax Comm'n v. Mackie
NEVADA TAX COMMISSION, Composed of CHARLES H. RUSSELL, Chairman;
ROBERT A. ALLEN, EDWARD ARNOLD SETTELMEYER, NORMAN D. BROWN,
MARSHALL WILLIAM DEUTSCH, HORACE GORDON LATHROP, and W. S. LARSH,
and THE NEVADA GAMING CONTROL BOARD, Composed of ROBBINS E. CAHILL,
WILLIAM V. SINNOTT, and WILLIAM P. GALLAGHER, Appellants, v. BRENT
MACKIE and KENNETH K. HENTON, Doing Business as the NEW STAR HOTEL and
CASINO, Respondents.
No. 4139
August 15, 1958. 330 P.2d 496.
Proceeding to review order of State Tax Commission revoking gambling license of
operators of gambling casino. The Sixth Judicial District Court, Humboldt County, John F.
Sexton, P. J., entered order substituting limited suspension, commission appealed, and
commission moved to stay execution of judgment during pendency of appeal. The Supreme
Court held that where state gambling board, commission and District Court found that
operators of gambling casino had indulged in cheating in 21 game, and order appealed from
appeared on its face to hold that evidence before tax commission furnished substantial
support for its revocation order, effectiveness of order substituting limited suspension
would be stayed pending appeal by commission and revocation order of commission
would be reinstated pending appeal.
in cheating in 21 game, and order appealed from appeared on its face to hold that evidence
before tax commission furnished substantial support for its revocation order, effectiveness of
order substituting limited suspension would be stayed pending appeal by commission and
revocation order of commission would be reinstated pending appeal.
Motion granted.
See also 74 Nev. 276, 329 P.2d 448.
Frank R. Petersen, of Reno, for Appellants.
Richard G. Campbell, of Winnemucca, and Thomas A. Foley, of Las Vegas, for
Respondents.
Gaming.
Where state gambling board, State Tax Commission and District Court found that operators of
gambling casino had indulged in cheating in 21 game, District Court substituted 60 days' suspension of
21 game and 30-day suspension of crap game licenses for total revocation of gambling license imposed
by commission, and order appealed from appeared on its face to hold that evidence before commission
furnished substantial support for its revocation order, effectiveness of order substituting limited
suspension would be stayed pending appeal by commission and revocation order of commission would be
reinstated pending appeal. NRCP 62(g); NRS 463.130, 463.140, subds. 1-3(d), 463.220, subd. 4,
463.310, subds. 4-7.
OPINION
On Motion to Stay Execution of District Court
Judgment During Pendency of Appeal
Per Curiam:
This matter is before us on a motion of appellants, pursuant to NRCP, Rule 62(g), to stay
the execution of a judgment of the district court, during the pendency of the appeal,
purporting to modify an order of the Nevada tax commission revoking the gambling license
of the respondents. Such order would, if granted, restore the effectiveness of the
commission's revocation order pending the appeal.
pending the appeal. We have concluded that the motion should be granted.
On July 26, 1958, Nevada tax commission, pursuant to investigation and recommendation
of the state gambling control board and after hearing, made its written order revoking the
gambling license of respondents. NRS 463.310. Respondents sought a review of this order in
the district court, which, after considering the record of the hearing before the commission,
entered its order on August 9, 1958, as follows:
1. That the Revocation of the 21 or Black Jack games located on the premises of the
Petitioners is suspended for a sixty (60) day period commencing from July 26, 1958.
2. That the Revocation of the Crap games located on the premises of the Petitioners is
suspended for a thirty (30) day period commencing from July 26, 1958.
3. The Order as to the suspension of Slot Machines is reversed.
The tax commission lodged its appeal with this court, together with its motion to suspend
execution of the order pending appeal.
The order appealed from would appear on its face to hold that the evidence before the tax
commission furnished substantial support for its revocation order.
We thus have the findings of the state gambling control board, the Nevada tax commission
and the district court that respondents had indulged in cheating in their Twenty-one or Black
Jack game. The district court, however, apparently deemed the penalty imposed to be
excessive and made the order above recited, substituting a 60-day suspension of the
Twenty-one game license and a 30-day suspension of the Crap game license for the total
revocation of the gambling license imposed by the commission. The commission contends
that such action of the district court invaded the statutory administrative and control powers
exclusively vested in it. NRS 463.130; 463.140, 1, 2, 3(d); 463.220, 4; 463.310, 4, 5, 6, 7.
Whether or not such is the case will be one of the issues, possibly the main issue, to be
determined in considering the appeal on the merits.
It is conceded by both parties that the granting or denial of the present motion lies within
the sound discretion of the court. Giving consideration to the probable nature of the issues
upon the merits of the appeal and to the balancing of public and private interests here
involved, we conclude that the motion for the stay pending appeal should be granted under
the circumstances of this case.
The motion is hereby granted. The effectiveness of the order substituting a limited
suspension in place of the revocation is hereby stayed pending the appeal, and the revocation
order of the commission is hereby reinstated pending such appeal.
____________
NEVADA TAX COMMISSION, Composed of Charles H. Russell, Chairman, Robert A.
Allen, Edward Arnold Settelmeyer, Norman D. Brown, Marshall William Deutsch, Horace
Gordon Lathrop, and W. S. Larsh and the NEVADA GAMING CONTROL BOARD,
Composed of Robbins E. Cahill, William V. Sinnott, and William P. Gallagher, Appellants,
v. BRENT MACKIE and KENNETH K. HENTON, Doing Business as the New Star Hotel
and Casino, Respondents.
No. 4139
September 8, 1958. 329 P.2d 448.
Appeal from the Sixth Judicial District Court, Humboldt County; John F. Sexton,
Presiding Judge.
Proceeding to review order of State Tax Commission revoking state gambling license. The
lower court rendered judgment modifying order of revocation, and the State Tax Commission
and Gambling Control Board appealed. On motions by respondents to dismiss appeal and to
remand matter to district court, the Supreme Court held that review of order of State Tax
Commission pursuant to NRS 463.310 was not an exercise of appellate jurisdiction or a
special proceeding, but an adversary judicial proceeding and that judgment modifying
order of revocation was a final judgment from which appeal would lie under general
appellate jurisdiction of supreme court.
appellate jurisdiction or a special proceeding, but an adversary judicial proceeding and that
judgment modifying order of revocation was a final judgment from which appeal would lie
under general appellate jurisdiction of supreme court.
Upon motion of respondents to dismiss appeal, motion denied.
Upon motion of respondents for order remanding to district court, motion denied.
Frank R. Petersen, of Reno, for Appellants.
Richard G. Campbell, of Winnemucca, and Thomas A. Foley, of Las Vegas, for
Respondents.
1. Courts.
State Tax Commission is not an inferior tribunal within meaning of constitutional provision giving
district courts final appellate jurisdiction in cases arising in justices' courts and such other inferior tribunals
as may be established by law. Const. art. VI, sec. 6.
2. Courts.
As used in constitutional provision giving district courts final appellate jurisdiction in cases arising in
justices' courts and such other inferior tribunals as may be established by law, quoted phrase refers to
judicial and not administrative tribunals. Const. art. VI, sec. 6.
3. Courts.
Judicial review of action of State Tax Commission pursuant to statute is not an exercise of appellate
jurisdiction within meaning of constitutional provision giving district courts final appellate jurisdiction in
cases arising in justices' courts and such other inferior tribunals as may be established by law. NRS
463.310 and subd. 7; Const. art. VI, sec. 6.
4. Courts.
As used in constitutional provision giving district courts final appellate jurisdiction in cases arising in
justices' courts and such other inferior tribunals as may be established by law, quoted phrase means
jurisdiction to review action of inferior judicial tribunals. Const. art. VI, sec. 6.
5. Gaming.
Proceeding pursuant to statute to review order of State Tax Commission revoking state gambling license
was not such a special proceeding as would require express statutory provision for appeal from judgment
of reviewing court. NRS 463.310 and subd. 7.
6. Gaming.
Proceeding to review order of State Tax Commission revoking state gambling license was an
adversary judicial proceeding and determination of reviewing court, modifying order
of revocation, was a judicial determination upon a dispute and constituted a "final
judgment" from which appeal would lie to Supreme Court under general appellate
jurisdiction of that court.
ing state gambling license was an adversary judicial proceeding and determination of reviewing court,
modifying order of revocation, was a judicial determination upon a dispute and constituted a final
judgment from which appeal would lie to Supreme Court under general appellate jurisdiction of that court.
NRS 463.310 and subd. 7.
7. Gaming.
Where appeal had been taken from judgment modifying order of State Tax Commission revoking state
gambling license, the matter could not be remanded to district court in order to permit licensees to make a
motion in that court for rehearing on ground that order of revocation should be reversed and not merely
modified. NRS 463.310 and subd. 7.
8. Gaming.
Contention of licensees that district court should have reversed order of State Tax Commission revoking
state gambling license instead of merely modifying order of revocation could be considered by Supreme
Court on appeal by State Tax Commission and Gambling Control Board from judgment modifying order of
revocation. NRS 463.310 and subd. 7.
OPINION
On Motion to Dismiss
Per Curiam:
Respondents have moved to dismiss this appeal upon the ground that this court is without
appellate jurisdiction in the case.
In the court below respondents applied for review of action taken by the Nevada Tax
Commission revoking their state license to conduct a gambling operation in the city of
Winnemucca. The tax commission has taken this appeal from judgment of the court below
modifying its order of revocation.
In support of their motion to dismiss, the respondents contend that under Article VI,
section 6, of the Nevada constitution the court below had final appellate jurisdiction in this
matter. That section provides that district courts shall have final appellate jurisdiction in
cases arising in justices' courts and such other inferior tribunals as may be established by
law. It is respondents' position that the tax commission is an inferior tribunal established by
law under the meaning of the constitution.
[Headnotes 1-4]
We cannot accept respondents' definition. The tribunals to which this section refers are
judicial and not administrative tribunals. The review of tax commission action which is
provided by law, NRS 463.310(7), is not an exercise of appellate jurisdiction. Appellate
jurisdiction is jurisdiction to review the action of inferior judicial tribunals.
Respondents also contend that the review of tax commission action provided by NRS
463.310 is a special proceeding and that no appeal lies from the judgment of the reviewing
court in such a proceeding in absence of express statutory provision.
[Headnote 5]
That general rule does not apply to a proceeding of this sort. We have already had occasion
to note that the statutory provision for review is far from specific and invites improvisation.
Tax Commission v. Hicks, 73 Nev. 115, 310 P.2d 852. In that case we recognized that review
might be initiated by complaint as well as by writ.
[Headnote 6]
In exercising their right to review the parties are simply initiating a judicial proceeding
recognized by law. The proceeding is an adversary one. The parties are litigants to a dispute.
The determination of the reviewing court is a judicial determination upon a dispute and
constitutes a final judgment. As to this type of proceeding an appeal lies under the general
appellate jurisdiction of this court. O'Donnell v. District Court, 40 Nev. 428, 165 P. 759.
The motion to dismiss is denied.
Respondents have also moved this court for an order remanding this matter to the trial
court in order that respondents might move that court for a rehearing in the matter. Upon such
rehearing, it would appear, respondents would assert their contention that the reviewing court
should have reversed the tax commission outright rather than simply to have modified its
order of revocation.
[Headnotes 7, 8]
The order which respondents seek in this respect does not appear to be one such as is
contemplated by our procedural law. Since, as we have held upon their motion to dismiss,
this court has appellate jurisdiction in this matter, their contentions could appropriately be
made upon appeal.
The motion to remand is denied.
____________
74 Nev. 280, 280 (1958) Nev. Desert Inn v. Burke
NEVADA DESERT INN, Inc., a Nevada Corporation, Appellant, v. STANLEY BURKE,
Respondent.
No. 4073
September 12, 1958. 329 P.2d 636.
Department No. 3.
Corporation's actions to recover real property. From judgment of dismissal by the trial
court, corporation appealed. The Supreme Court held that where corporation's prior action
against the same defendant to recover the same real property was dismissed with prejudice
and claim was that prior action did not constitute res judicata because corporation was not
properly a party to that action since secretary verifying complaint and attorneys representing
were without authority to act, but California Supreme Court decision in action to which
corporation and defendant were parties determined that corporation's removal of secretary
was abortive and that attorneys had acted with authority, precise issue as contended for
having been litigated, it could not be reasserted.
Judgment affirmed.
Franklin & Wadsworth, of Las Vegas; H. Ward Dawson, Jr., of Puerto Rico, for
Appellant.
Edward J. Dotson, of Las Vegas, for Respondent.
Judgment.
Where corporation had brought action to recover real property against defendant who claimed res
judicata because of dismissal of prior action by corporation against defendant to recover the same real
property, and corporation contended that secretary verifying complaint in prior action was without
authority to do so as were attorneys who were acting for corporation, but California Supreme Court
decision in action in which defendant and corporation were parties determined that secretary and
attorneys had authority to act for corporation, precise issue having been previously litigated, could not be
presented again.
OPINION
Per Curiam:
This appeal from judgment, taken by the plaintiff below, asserts as error that the trial court
held the cause of action barred by res judicata.
The Nevada Desert Inn, a corporation, seeks to recover from respondent Burke certain real
property located in Clark County. This is the fourth occasion since 1946 on which resort to
the courts has been had by this appellant in an effort to establish its rights to the property in
question.
In 1947 an action (its second) was brought by the corporation against Burke in the Clark
County district court. The complaint was verified by Lela Anderson as secretary of the
corporation. The law firm of Morse and Graves of Las Vegas purported to act for the
corporation. A dismissal with prejudice was filed in the action by Morse and Graves upon
which a court order of dismissal with prejudice was entered.
In the instant case that order of dismissal was held to constitute res judicata of the
corporation's right to proceed against Burke. The corporation now contends that the earlier
action may not constitute res judicata for the reason that the corporation was not properly a
party to that action. It asserts that Anderson was without authority to represent the corporation
since she had been removed by action taken at a stockholders' meeting and that Morse and
Graves were without authority to act as the corporation's attorneys.
These precise issues were litigated and determined adversely to the corporation in a suit
brought in California to which the corporation and Burke were parties and which reached the
supreme court of that state. Gagnon Co. v. Nevada Desert Inn, Inc., 45 Cal.2d 448, 289 P.2d
466. There the court upheld the determination of the California trial court to the effect that the
corporation's attempt to remove Anderson as secretary was abortive and that the attorneys
acted with authority; consequently that the dismissal with prejudice of the Nevada action
constituted res judicata.
The corporation contends that these issues were not actually litigated and determined in
the California action; that the California trial court refused to decide them and, in effect,
relegated the corporation to the Nevada courts for determination of the issues. The opinion of
the California Supreme Court refutes this contention. From that opinion it is clear that the
trial court did resolve the issues adversely to the corporation and was held to be justified in its
decision.
The precise issues having been litigated and determined they may not now be reasserted.
Reno Club v. Harrah, 70 Nev. 125, 260 P.2d 304.
Affirmed.
____________
74 Nev. 282, 282 (1958) Las Vegas Sun v. Franklin
LAS VEGAS SUN, Inc., a Nevada Corporation; Herman Milton Greenspun; Ed Reid,
Appellants, v. GEORGE E. FRANKLIN, Jr., Respondent.
No. 4034
September 15, 1958. 329 P.2d 867.
Appeal from the Eighth Judicial District Court, Clark County; John F. Sexton, Presiding
Action for damages for libel. Judgment for the plaintiff in the trial court and the
defendants appealed. The Supreme Court, Merrill, J., held that the headline and tagline of a
newspaper article was libelous per se; that proof of special damages was not necessary;
that a consent document to adoption signed in blank is not recognized as proper under
Nevada Law; that the defense of truth was not established by the evidence; that evidence
offered in mitigation of damages was improperly excluded as hearsay and that instructing
that failure to prove a plea of truth could be considered as evidence of malice, was error.
proof of special damages was not necessary; that a consent document to adoption signed in
blank is not recognized as proper under Nevada Law; that the defense of truth was not
established by the evidence; that evidence offered in mitigation of damages was improperly
excluded as hearsay and that instructing that failure to prove a plea of truth could be
considered as evidence of malice, was error.
Reversed and remanded for new trial.
(Rehearing denied October 15, 1958.)
Welch, Mott & Morgan, of Washington, D. C.; Springmeyer & Thompson, of Reno;
Morton Galane, of Las Vegas, for Appellants.
Jones, Wiener & Jones, of Las Vegas, for Respondent.
1. Libel and Slander.
Newspaper article containing headline Babies for Sale. Franklin Black Market Trade of Child Told and
tagline reading TomorrowBlackmail by Franklin was defamatory per se, though body of article
factually recited the manner in which plaintiff had secured the relinquishment of a baby for adoption.
In determining whether words charged are libelous per se, they are to be taken in their plain and natural
import according to the ideas they convey to those to whom they are addressed; reference being had not
only to the words themselves but also to the circumstances under which they were used.
Where headline and tagline of newspaper article were defamatory, the headline was not qualified by and
required to be read in the light of the article to which it referred nor was the tagline qualified by and to be
read in the light of the subsequent article to which it referred.
Where defamation of plaintiff contained in the headline of a newspaper article was complete upon its
face, it was not necessary to read the article in order that the defamatory nature of the statement be
understood or connected with the plaintiff and such was also true of the tagline.
Where statement was libelous per se, proof of special damages was not necessary.
6. Adoption.
The statutes contemplate two methods of placing a child for adoption, by direct action of the
natural parents and through the state welfare department or a recognized
child-caring or child-placing agency.
for adoption, by direct action of the natural parents and through the state welfare department or a
recognized child-caring or child-placing agency. NRS 127.040(c), 127.050, subds. 1-3.
7. Adoption.
The statute requiring written consent to specific adoption proposed by petition sworn to by persons
consenting shall be required from the mother only of a child born out of wedlock applies to all cases of
direct parental consent, and a consent in blank to adoption does not become a blanket relinquishment with
authority in the bearer of the instrument, whether an agency or an individual, to act in the place of the
natural parents in the selection of adopting parents. NRS 127.040(c).
8. Adoption.
While contents by parents to adoption signed in blank are not recognized as proper under Nevada law,
such consents are not void and whether they are void or merely voidable until acted upon by a court in
adoption proceeding must be determined in the case where the question is properly at issue. NRS
127.040(c), 127.050, subds. 1-3.
In action for libel based upon a headline and tagline of newspaper article charging illegal action of
plaintiff in arranging adoption of a child, defense of truth was not established under the evidence as a
matter of law where the failure of plaintiff to follow the requirements of the adoption statute in the adoption
of a child was through his innocent misconstruction of the statute in light of earlier decisions of the
supreme court.
10. Appeal and Error; Evidence.
In action for libel based on headline and tagline to newspaper article indicating that the plaintiff engaged
in illegal conduct in arranging adoption of a child, admitting testimony of three expert witnesses upon the
issue of the state of the law with respect to adoption proceedings, an area of determination which the trial
judge should have reserved to himself, was reversible error.
11. Evidence.
In action for libel based on headline and tagline of newspaper article charging that plaintiff engaged in
illegal conduct in arranging an adoption, evidence offered by defendants in mitigation of damages as to
research conducted into problem of such operations in adoption proceedings was improperly excluded as
hearsay.
12. Evidence.
In action for libel based on headline and tagline of newspaper article charging illegal conduct of plaintiff
in arranging adoption, testimony of defendant as to having interviewed counsel for a United States Senate
subcommittee investigating the subject of adoption rackets was improperly excluded as hearsay in
mitigation of damages.
13. Evidence.
In action for libel based on headline and tagline of newspaper article charging illegal conduct of plaintiff
in arranging adoption, testimony of defendant as to having read an article in a law journal entitled
Moppets on the Market and as to a study of the Nevada Foster Homes Act and as to the conclusions the
defendant had drawn from it were improperly excluded as hearsay in the mitigation of damages. NRS
424.010 et seq.
14. Evidence.
In action for libel based on headline and tagline of a newspaper article charging illegal conduct of
plaintiff in arranging adoption, memorandum from the writer of the article with respect to a conversation
between the writer and the attorney general relative to adoption procedures though not competent to
establish the state of the law or of public policy was competent and material upon the question of the bona
fides of the publisher's belief as to the public importance of adoption rackets and was improperly excluded
as hearsay in the mitigation of damages.
15. Trial.
The trial judge has power to exercise control over the extent to which cumulative evidence is to be
permitted to encumber the record.
16. Trial.
In action for libel for publication of a defamatory article evidence which would have assisted the jury to
judge the justification of the defendant's beliefs and good faith of his motives in publishing the article
should have been admitted under instructions telling jury that the evidence, while not proper to establish
the truth of the statements contained in the exhibits, might be considered in determining whether the
defendant had relied upon them in judging justification for such reliance.
In libel action, the failure of proof of truth is not itself evidence of malice and an instruction that failure
to prove plea of proof could be considered as evidence of express and continued malice was error.
In libel action, where malice appears a plea of truth may be considered in aggravation of damages as an
unprivileged republication of the original libel, but to constitute such aggravation, it should appear that the
defense of truth was not pleaded in good faith.
In libel action when defendant actually believes his plea of truth to be true and offers evidence in support
of it in good faith, he should not be penalized simply because the evidence fails to convince the jury but the
evidence should operate in mitigation of damages.
OPINION
This appeal is from judgment for damages for libel. The judgment, entered pursuant to jury
verdict, was for $190,000: compensatory damages of $40,000 plus punitive damages of
$150,000.
The alleged defamation appeared in a newspaper article. The issues with which we deal in
this opinion arise out of three contentions of the appellants. First: that the article was
improperly held by the trial judge to be libelous per se; Second: that in any event it was true;
Third: that through error committed by the judge appellants were precluded from presenting
to the jury evidence in mitigation of damages.
The article in question appeared in the Las Vegas Sun, a newspaper of general circulation
published in Las Vegas. Appellant Greenspun was publisher of the paper. Appellant Reid was
author of the article.
The article was the fourth in a series relating to respondent Franklin. The libelous
statements are found, not in the body of the article, but in its headline and tagline. The
headline read, BABIES FOR SALE. FRANKLIN BLACK MARKET TRADE OF CHILD
TOLD. The tag-line read, TOMORROWBLACKMAIL BY FRANKLIN. The body of
the article factually recited the manner in which Franklin had secured the relinquishment of a
baby for adoption.
The trial judge instructed the jury that the article was libelous per se. Appellants contend
that this was error. They assert that the language was ambiguous, of doubtful import and
susceptible of more than one interpretation. Accordingly, they contend, the question of
whether a defamatory meaning was to be drawn from the article should have been left to the
jury. We find no merit in this contention.
[Headnotes 1, 2]
While persons may well differ in a precise or detailed spelling out of the terms
black-market sale or blackmail, this fact does not relieve the language of its defamatory
nature.
defamatory nature. Under any reasonable definition such charges would tend to lower the
subject in the estimation of the community and to excite derogatory opinions against him and
to hold him up to contempt. A defamatory meaning would be conveyed to the typical reader
in accordance with the common usage of the language. The statement was, then, defamatory.
Talbot v. Mack, 41 Nev. 245, 169 P. 25; Reynolds v. Arentz, 119 F.Supp. 82 (D.Nev. 1954).
See Prosser on Torts, p. 574, 92; Restatement of The Law, Torts, Vol. 3, 559, p. 140. In
Talbot v. Mack, supra, at p. 262, this court stated, In determining whether words charged are
libelous per se, they are to be taken in their plain and natural import according to the ideas
they convey to those to whom they are addressed; reference being had not only to the words
themselves but also to the circumstances under which they were used.
[Headnote 3]
Appellants contend that the headline and tagline cannot be considered apart from the
context in which they were used. Thus, they contend, the headline must be qualified by and
read in the light of the article to which it referred and the tagline must be qualified by and
read in the light of the subsequent article to which it referred.
[Headnote 4]
This is not so. The text of a newspaper article is not ordinarily the context of its headline,
since the public frequently reads only the headline. Fitch v. Daily News Publishing Co., 116
Neb. 474, 217 NW 947, 59 A.L.R. 1056; Shubert et al v. Variety, Inc., 128 Misc.Rep. 428,
219 N.Y.S. 233. See Restatement of the Law, Torts, Vol. 3, 559, comment (d). The same is
true of a tagline or leader, since the public frequently reads only the leader without reading
the subsequent article to which it refers. The defamation of Franklin contained in the headline
was complete upon its face. It was not necessary to read the article in order that the
defamatory nature of the statement be understood or connected with Franklin. The same is
true of the tagline.
We conclude that the trial judge properly instructed the jury that the article was libelous
per se.
[Headnote 5]
This conclusion also disposes of appellants' contention that there was a failure of proof of
special damages. The statement being libelous per se, proof of special damages was not
necessary. Talbot v. Mack, supra; See 53 C.J.S. 268, 170(b).
Appellants have pleaded the defense of justificationthat the libelous statements were in
fact true. They here contend that they have proven truth so conclusively that it may be said to
have been established as a matter of law.
As to the charge of a black-market sale of a child, this defense raises two separate issues
for our consideration. First: whether the manner in which Franklin handled the transaction to
which the article referred was according to law; Second: if it was not, whether this constituted
the transaction a black-market sale of a child as that term is generally to be understood.
The material facts are not in dispute. Franklin, an attorney, was approached by a Las Vegas
doctor. He was advised of the imminent birth of a child to an unwed woman and of the fact
that the woman was considering giving the child for adoption. He was advised that a certain
married couple wished to adopt the child and were willing to pay the expenses of
confinement and compensation to the mother for loss of wages due to confinement.
He interviewed the expectant mother in a local hospital, learned that the child was not yet
born, advised against adoption but left his name in the event that adoption should be decided
upon.
After birth of the child the mother, accompanied by her stepmother, voluntarily came to
Franklin's office and discussed the adoption with him. She agreed to an adoption with the
adopting parents assuming the expenses of confinement and compensating her for loss of
wages in the sum of $300. A consent to adoption was prepared by Franklin.
Accompanied by her stepmother and by Franklin's daughter, the mother of the child took
the document from Franklin's office to a notary public where it was executed and delivered to
Franklin's daughter.
The consent did not disclose the names of the adopting parents. Upon its face it appeared
to give consent to an adoption by specified persons. The consent, however, was in blank
when signed and acknowledged. The names of the adopting parents were filled in later by
Franklin. Franklin received a fee for his services from the adopting parents in the sum of
$100, less expenses.
Later the mother and father of the child were married and sought to revoke the consent and
to obtain from Franklin the names of the persons with whom the child had been placed.
Franklin refused to make disclosure.
Our first question under these facts is whether a consent to adoption signed in blank is
recognized as proper under Nevada law. Franklin contends that it is, relying upon the case of
Ex Parte Schultz, 64 Nev. 264, 181 P.2d 585.
The applicable sections of our statutes in pertinent part read as follows: NRS 127.040.
Written consent to the specific adoption proposed by the petition, sworn to by the person
or persons consenting, shall be required from . . . (c) the mother only of a child born out of
wedlock; . . .
NRS 127.050 The following may accept relinquishments for the adoption of children
from parents and guardians and may consent to the adoption of children: 1. The state welfare
department, to whom the child has been relinquished for adoption; 2. A corporation organized
and existing under and by virtue of the laws of the State of Nevada as a child-caring agency,
to whom the child has been relinquished for adoption; or 3. Any child-placing agency
authorized under the laws of another state to accept relinquishments and make placements, to
whom the child has been relinquished for adoption.
[Headnote 6]
These sections, as we construe them, contemplate two methods of placing a child for
adoption. 1. By direct action of the natural parents; 2.
action of the natural parents; 2. Through the state welfare department or a recognized
child-caring or child-placing agency.
By the first method the parents, through granting of consent to the specific adoption
proposed by the petition, in effect select the adopting parentsthe persons who are to have
their child. By the second method the child is relinquished by the parents to an agency with
the intent that the agency act in place of the parents in selecting the adopting parents.
The statute, however, does not provide for any relinquishment for purposes of placement
other than to an agency as specified. To none but such an agency can parents irrevocably
grant authority to select for them the adopting parents of their children. A consent to the
specific adoption under NRS 127.040 must, then, constitute an approval of the adopting
parents. Their identity must be made known.
Franklin contends for a different statutory construction. In his view the specific adoption
contemplated by the statute is the adoption of a specific child. In support of his position he
points to the fact that in the Schultz case relinquishment in blank to an agency was upheld.
[Headnote 7]
The Schultz case dealt with an agency placement and not with direct parental consent.
Further it may be noted that the statute before us was enacted in 1953 after the decision in the
Schultz case was rendered. Then for the first time do we find the requirement that consent be
to the specific adoption proposed by the petition. The legislative intent to be read from this
act would seem to be that notwithstanding the holding of the Schultz case as to agency
placements, the compelling implication of the statutory language shall apply to all cases of
direct parental consent.
Under Franklin's construction a consent in blank in effect would become a blanket
relinquishment with authority in the bearer of the instrument, whether an agency or an
individual, to act in the stead of the natural parents in the selection of the adopting parents.
Since relinquishment for placement is specifically limited by the subsequent section we
cannot credit the legislature with such inconsistent intent.
the subsequent section we cannot credit the legislature with such inconsistent intent.
Franklin emphasizes the policy, recognized by the Schultz opinion, that it is not desirable
that the identity of the adopting parents be disclosed to the natural parents. We continue to
recognize such policy and have no intention of frustrating or reflecting upon it. It can be
carried into effect by relinquishment to an agency as the Schultz case demonstrated.
We recognize also, however, that the legislature as a matter of policy has acted to establish
safeguards and controls in nonagency placement of children for adoption with the apparent
view that such controls are desirable in the public interest. Such controls in the normal case
may well be wholly unnecessary. However, without some measure of control, consents in
blank in the hands of unscrupulous persons could reduce children of adoption to the
commercial status of negotiable paper. In no event may we disregard the apparent legislative
intent in this regard.
We conclude that the procedure followed by Franklin in the case to which the libelous
article referred was not in accordance with Nevada law.
[Headnote 8]
Since it appears from the record before us that this procedure was common practice in
Clark County, it may be well for us to make clear the extent of our ruling upon this point lest
it be regarded as invalidating all adoptions based upon consents in blank. We do not hold
such consents to be void. Whether they are void, or merely revocable until acted upon by a
court in adoption proceedings, remains to be determined in a case where the question is
properly at issue.
Does it follow from the fact that Franklin was not proceeding according to law that he was
engaged in the black-market sale of a child? It does not. The vice of the procedure followed
by Franklin does not lie in the fact that it constitutes a black-market sale but in the fact that
such procedure, if permissible, would open the door to black-market sales.
Under any reasonable construction of the term, blackmarket sale" contemplates a sale
contrary to regulations with a profit calculated either to compensate for the risk of
apprehension or to match the buyer demand which has created the market.
market sale contemplates a sale contrary to regulations with a profit calculated either to
compensate for the risk of apprehension or to match the buyer demand which has created the
market. In the case before us the fact that the consent was not properly secured is not enough
to constitute the transaction a black-market sale in the absence of proof of a sale price or
profit or that the law was deliberately disregarded in consideration for the attorney's fee.
The record would indicate that Franklin's failure to follow the requirements of statute was
through his innocent misconstruction of the statute in the light of an earlier decision of this
court.
Appellants contend that the compensation paid for loss of wages amounted to a profit and
constituted the transaction a sale. In absence of statute the determination of whether such
compensation was proper rested in the first instance with the jury. We shall not disturb their
determination, implicit in their verdict, that such compensation did not constitute the
transaction a sale. There is nothing to indicate that the payment permitted the mother to profit
from childbirth. To the contrary, it would seem to have been intended simply to prevent her
confinement from resulting in pecuniary loss.
Appellants also contend that they have conclusively established the truth of the tagline.
The blackmail to which the tagline referred was contained in a letter from Franklin to
the child's mother in response to her notice of revocation of consent to adoption. The
statement by Franklin was as follows: I feel that I must acquaint you with the fact that I am
aware of certain developments which can only burden you if you continue to pursue your
present course.
Appellants construe this language as a threat to oppress the mother with wrongful,
unlawful, extra-legal pressures. Even should we accept this construction as a reasonable one
(which we are reluctant to do), it cannot be said to be the only reasonable one. The language
might well be construed simply as a warning that Franklin was in possession of facts which
would make it difficult for the mother to prevail in her chosen course of action.
We cannot, then, hold as a matter of law that the statement constituted blackmail. Whether
Franklin was in fact guilty of blackmail, and the tagline therefore true, remained a question of
fact for the jury. Its determination upon this issue will not be disturbed.
[Headnote 9]
We conclude that neither as to the headline nor the tagline have appellants established the
defense of truth as a matter of law.
Appellants' final contention is that, through errors at law committed by the trial judge, they
were precluded from presenting to the jury evidence in mitigation of damages and to disprove
malice. We have concluded that this contention has merit and requires reversal.
The verdict for punitive damages in the sum of $150,000 clearly demonstrates the view of
the jury that the defamation was actuated not by righteous indignation in the public interest
but by personal malice of such a character as to constitute grave aggravation. Appellants'
most potent defense against the assertion of malice lay in their contentions that Franklin was
not proceeding according to law; that in the public interest the practice he was following
should be halted; that in airing the facts and commenting thereon they were motivated by
legitimate public concern rather than by private and personal malice.
There was evidence from which the jury could have concluded that the libel was prompted
by personal malice. If a fair and considered judgment as to the existence and extent of malice
and aggravation was to be had it was essential that full consideration be given to the
mitigating circumstances upon which appellants relied and that aggravation and mitigation be
judiciously weighed against each other. Appellants were not permitted to establish their
propositions effectively.
In the first place it is apparent from the record not only that the jury was not instructed as
to the law with reference to consents in blank, but that it was led to believe that Franklin was
proceeding according to law.
Over repeated objections three attorneys were permitted to testify as to the practice which
they followed in securing consents to adoption.
in securing consents to adoption. They all testified that they followed the practice which
Franklin had followed. This testimony by itself might have had some materiality as tending to
establish Franklin's innocence of motive. The inquiry was not confined to any such issue,
however.
Counsel on both sides (through their examinations) and the judge himself (through his
rulings and comments) all appeared to recognize that the function of the bulk of this
testimony was to establish the state of the law relative to consents in blank by means of
expert testimony in the absence of any ruling by this court on the question.
The witnesses were examined as experts on the subject of the law. Each was qualified as
an expert witness would have been qualified. Each was shown to be an outstanding member
of the bar. One was a former district judge. Hypothetical questions were asked and answered.
Foundation was laid to the effect that the witnesses were familiar with the law of Nevada.
Answers were given in the light of such knowledge.
This testimony, taken in its entirety, could only have been regarded by the jury as having
been presented for the purpose of establishing the state of the law.
Any prejudice or misunderstanding might well have been overcome had the judge properly
instructed the jury upon the law. This was not done. An instruction was proposed by
appellants and was refused by the judge. While error in this particular respect is not available
to appellants through their failure to take exception to the judge's action, the inevitable result
was to impel the jury to an erroneous conclusion as to the law upon this vital point and to a
conviction that Franklin was acting in accordance with law. A fair appraisal of the extent of
malice and aggravation was thus rendered impossible.
[Headnote 10]
We conclude that it was prejudicial error to admit the testimony of the three attorneys as
expert witnesses upon the issue of the state of the law, an area of determination which the
judge should have reserved to himself.
Further, evidence offered by appellants in mitigation of damages was improperly excluded
as hearsay.
[Headnote 11]
Greenspun testified as to research he had conducted into the problem of black-market
operations in adoption proceedings. As a result of such research, he testified in effect, he had
concluded that public welfare demanded that the practice as followed by Franklin should be
halted. The evidence excluded would have served to demonstrate the extent of his research
and to explain his conclusions.
[Headnote 12]
He testified to having interviewed the counsel for a United States Senate subcommittee
investigating the subject of adoption rackets. He was not permitted to relate the substance of
the conversation.
[Headnote 13]
He testified to having read an article in the March 1950 issue of the Yale Law Journal
entitled Moppets On The Market. He was not permitted to introduce the article itself in
evidence.
He testified to a study of the Nevada Foster Homes Act, NRS 424.010 et seq., and that he
had drawn certain conclusions from it. He was not permitted to read the law to the jury or
state the conclusions he had reached.
[Headnote 14]
He offered in evidence a memorandum from Reid with respect to a conversation between
Reid and the attorney general of Nevada relative to adoption procedures. The offer was
refused.
These items of evidence did have hearsay aspects or aspects of irrelevancy. They were not
competent to establish the state of the law or of public policy. They could not be permitted to
invade the province of judge or jury. They were, however, competent and material upon the
question of the bona fides of Greenspun's beliefs as to the public importance of adoption
rackets.
[Headnote 15]
The trial judge does have power to exercise control over the extent to which cumulative
evidence of this sort is to be permitted to encumber the record.
over the extent to which cumulative evidence of this sort is to be permitted to encumber the
record. Rejection of the evidence, however, was not upon the basis of any exercise of
discretion of this sort, but was based upon the incompetency of the evidence.
[Headnote 16]
The jury was thus deprived of evidence which would have assisted it to judge of the
justification for Greenspun's beliefs and the good faith of his motives in publishing the article
in question. Admission for such limited purpose under appropriate judicial instructions would
have been proper. The jury could have been told that the evidence was not proper to establish
the truth of the statements contained in the exhibits but that it might be considered in
determining whether Greenspun had relied upon them and in judging of the justification for
such reliance. Sollars v. State, 73 Nev. 248, 316 P.2d 917; Kimble v. First National Bank of
Nevada, 73 Nev. 25, 307 P.2d 615.
Finally the court erred in instructing the jury to the following effect: Failure to prove a
plea of truth may be considered as evidence of express and continued malice.
[Headnotes 17-19]
There is authority to support the giving of this instruction. In our view, however, the better
rule is that failure of proof of truth is not itself evidence of malice. Where malice appears a
plea of truth may be considered in aggravation of damages as an unprivileged republication of
the original libel. However, to constitute such aggravation it should appear that the defense of
truth was not pleaded in good faith. When the defendant actually believes his plea to be true
and offers evidence in support of it in good faith, the rule should not apply to penalize him
simply because the evidence fails to convince the jury. Rather, in such a case, the evidence
offered should operate in mitigation of damages. Crane v. New York World Telegram Corp.,
308 N.Y. 470, 126 NE.2d 753, 52 A.L.R.2d 1169; Snyder v. Fatherly, 153 Va. 762, 151 SE
149.
With reference to malice, then, the question posed by a plea of truth is not whether the jury
has been satisfied that the libelous statement was true and thus justified. The question, rather,
is whether the defendant in good faith believed it to be true. If he did, his belief and his
reasons for it can operate in mitigation. If he did not, his false plea can operate in aggravation.
____________
74 Nev. 297, 297 (1958) City of Reno v. Spear
CITY OF RENO, NEVADA, a Municipal Corporation, and ANGELO PAPPAS, Appellants,
v. JAMES V. SPEAR, Respondent.
No. 4062
September 18, 1958. 329 P.2d 875.
Appeal from judgment of Second Judicial District Court, Washoe County; Grant L.
Action arising out of intersectional collision between automobiles driven by plaintiff and
one of defendants. From adverse judgment of the trial court, the defendants appealed. The
Supreme Court, Badt, C. J., held that giving of last clear chance instruction, even if not
applicable, was not prejudicial when jury made special findings that such defendant's
negligence proximately caused accident and that plaintiff was not negligent and did not by his
own negligence get himself into a position of danger, and when jury was further instructed
that if it found plaintiff had not gotten himself by his own negligence into a position of
danger, interrogatories concerning elements of last clear chance need not be answered.
Affirmed.
Vargas, Dillon & Bartlett, of Reno, for Appellants.
Peter Echeverria, of Reno, for Respondent.
1. Automobiles.
In action arising out of intersectional collision between automobiles driven by plaintiff and one of
defendants wherein testimony was introduced to effect that plaintiff was in intersection first and
approaching from defendants' right, whether defendants were negligent and if so whether such negligence
was proximate cause of accident, and whether plaintiff was negligent and by his negligence got himself into
a position of danger were questions for the jury.
2. Appeal and Error; Trial.
In action arising out of intersectional collision between automobiles driven by plaintiff and one of
defendants, giving of last clear chance instruction, even if not applicable, was not prejudicial when jury
made special findings that such defendant's negligence proximately caused accident and that plaintiff was
not negligent and did not by his own negligence get himself into a position of danger, and when jury was
further instructed that if it found plaintiff had not gotten himself by his own negligence into a position of
danger, interrogatories concerning elements of last clear chance need not be answered.
OPINION
[Headnote 1]
This appeal is from a judgment on a verdict in favor of respondent Spear for $5,650.40
against appellants, growing out of a collision of automobiles driven by the respective parties
at the intersection of Willow and High Streets in the City of Reno. In addition to the general
verdict, the jury answered special interrogatories as follows: (1) Was the defendant Angelo
Pappas negligent in the manner charged in plaintiff's complaint? A. Yes. (2) Did such
negligence, if any you find, proximately cause the accident? A. Yes. (3) Was the plaintiff,
James V. Spear, negligent or careless in any degree, however slight? A. No. (5) Did the
plaintiff, James V. Spear, by his own negligence get himself into a position of danger? A. No.
Appellants assign the following as errors entitling them to a reversal, with direction of
judgment for the defendants or, in the alternative, for a new trial.
(1) That the evidence of negligence on the part of plaintiff is so strong as to be
unavoidable and conclusive; {2) that it was reversible error to give last clear chance
instructions because the physical facts and the testimony of plaintiff preclude the
application of that doctrine; {3) prejudicial misconduct of plaintiff's counsel, depriving the
defendants of a fair trial.
(2) that it was reversible error to give last clear chance instructions because the physical facts
and the testimony of plaintiff preclude the application of that doctrine; (3) prejudicial
misconduct of plaintiff's counsel, depriving the defendants of a fair trial.
(1) No purpose would be served, either for the determination of the present case or as
precedent for future cases, by reviewing the evidence. Testimony was adduced to the effect
that the plaintiff was in the intersection first and approaching from defendants' right.
Evidence as to the speed at which the respective cars were traveling was conflicting. The
court's instructions apprised the jury of the city ordinances involved: The duty of a driver of a
vehicle approaching an intersection to yield the right of way to one that has already entered
the intersection; when two vehicles enter the intersection from different streets at the same
time, the duty of the driver on the left to yield the right of way to the vehicle on the right; the
15 miles per hour speed restriction on going through a street intersection; that it is unlawful to
drive in a reckless manner or in other than a careful or prudent manner, with further like
provisions. The questions involved in the special interrogatories above quoted were clearly
questions for the jury. The jury's answer to those questions, as well as the general verdict, find
substantial support in the evidence. The learned trial judge, who, like the jury, observed the
witnesses and was able to judge of their credibility, denied a motion for new trial. We must
conclude that the first assignment of error is not well taken.
[Headnote 2]
(2) Irrespective of whether or not the record may be said to preclude the application of the
doctrine of last clear chance, we are unable to conclude that the giving of last clear chance
instructions was prejudicial. We have noted the jury's special findings of the defendants'
negligence proximately causing the accident, the absence of any negligence on the part of the
plaintiff and the further finding that the plaintiff did not by his own negligence get himself
into a position of danger. The jury was instructed that if it thus answered the last
interrogatory, it need not answer the following five or more interrogatories.
interrogatory, it need not answer the following five or more interrogatories. Such following
interrogatories had to do with the further elements of last clear chancethat it was
impossible for the plaintiff to extricate himself from the danger, or that he was totally
unaware of it, that the defendant, by the exercise of ordinary care, could have seen the
plaintiff in his position of danger and that he was either unaware of it or unable to extricate
himself, that defendant, by the exercise of ordinary care, would have had a clear opportunity
to avoid the accident and could have done so but that he did not exercise ordinary care to
avoid the accident. The jury followed the court's instructions by not answering these further
questions involving the doctrine after finding that the plaintiff had not got himself into a
position of danger by his own negligence. The authorities cited by appellants fail to support
the contention that under such circumstances the giving of last clear chance instructions was
prejudicial.
(3) We find no merit to the contention that the asserted prejudicial misconduct of
plaintiff's counsel deprived the defendants of a fair trial. Again, reference to the record would
serve no beneficial purpose. There was much rough-and-ready give and take between counsel.
Counsel for defendants returned blow for blow, and, for the most part, invited the returns of
counsel for plaintiff.
1
Neither side at any time moved for a mistrial.
____________________

1
Not that we agree with respondent's analysis of appellants' position as contending that the conduct of
plaintiff's counsel unhorsed the wheels of justice. The metaphor is too mixed for us to follow.
____________
74 Nev. 301, 301 (1958) Gaudin Motor Co. v. Prieth
GAUDIN MOTOR CO., INC., Appellant, v. RICHARD N. PRIETH, Respondent.
No. 4149
September 26, 1958. 329 P.2d 1069.
Motion for extension of time to docket record on appeal. Counter-motion for dismissal of
appeal for failure of timely docketing.
Action wherein the Eighth Judicial District Court, Department No. 3, Clark County,
Ryland G. Taylor, J., rendered judgment, and an appeal was taken. On appellant's motion for
extension of time to file record on appeal and respondent's motion to dismiss appeal, the
Supreme Court held that appeal was not dismissible for failure to file record on appeal until
after expiration of time allowed by Rules of Civil Procedure, rule 73(g), where it appeared
that clerk of district court was unable to complete preparation of record within time allowed
for filing, but that filing of record would nevertheless have been timely, if appellant had
availed itself of the full 30 days for taking appeal under rule 73(a).
Motion for extension granted. Motion to dismiss denied.
Zenoff & Magleby, of Las Vegas, for Appellant.
Herman E. Fisher, of Las Vegas, for Respondent.
Appeal and Error.
Appeal was not dismissible for failure to file record on appeal within time allowed by rule of
procedure, though no extension of time had been obtained from district judge and motion for extension of
time was not filed in supreme court until after expiration of time allowed for filing record, where it
appeared that clerk of district court was unable to complete preparation of record on appeal within time
allowed, but that filing of record would nevertheless have been timely, if appellant had availed itself of
the full 30 days for taking appeal. Rules of Civil Procedure, rule 73(a, g).
OPINION
Per Curiam:
Judgment was filed July 11, 1958, notice thereof served July 16, and notice of appeal,
designation of contents of record on appeal and appeal bond served and filed July 21.
74 Nev. 301, 302 (1958) Gaudin Motor Co. v. Prieth
record on appeal and appeal bond served and filed July 21. On September 16 appellant filed
the record on appeal, the motion for extension of time to file the record and its opening brief
on the merits. On September 17 respondent served his motion to dismiss the appeal. The
clerk of the district court was unable to complete the preparation of the record on appeal
before September 1, 1958, the last day for docketing under the rule, and actually certified the
record September 11. Counsel in charge of the appeal was away from his office on several
days of the week of Monday, September 1. No extension of time to docket the record was
obtained from the district judge.
If appellant had availed itself of its full 30 days for appeal, Rule 73(a) NRCP, and its full
40 days to docket the appeal, 73(g) id., this would have resulted in docketing its appeal on
September 24, whereas it was actually docketed eight days before that date.
Under all of these circumstances we think the situation is governed by Garibaldi Trucking
Co. v. Waldren, 72 Nev. 12, 292 P.2d 356, q.v., rather than by Doolittle v. Doolittle, 70 Nev.
163, 262 P.2d 955, q.v., on which respondent relies.
The motion for extension is granted and the motion to dismiss denied. Respondent may
have 15 days from receipt of a copy of this order within which to serve and file his answering
brief on the merits.
____________
74 Nev. 302, 302 (1958) Parsons v. State
ELTON PARSONS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 4031
September 29, 1958. 329 P.2d 1070.
Appeal from the Fifth Judicial District Court, Esmeralda County; Wm. D. Hatton, District
Judge.
Defendant was convicted of involuntary manslaughter in the trial court and he appealed.
The Supreme Court, Eather, J., held that where accused, in response to reports of fights,
approached those suspected of being involved and, according to testimony of accused and
one other, accused was attacked, retreated and finally shot in self-defense after giving
warning, while according to other testimony accused shot without warning after alleged
victim started to get off ground, instruction relating to manslaughter was proper.
involved and, according to testimony of accused and one other, accused was attacked,
retreated and finally shot in self-defense after giving warning, while according to other
testimony accused shot without warning after alleged victim started to get off ground,
instruction relating to manslaughter was proper.
Affirmed.
Peter Echeverria, of Reno, for Appellant.
Harvey Dickerson, Attorney General, of Carson City; and William J. Crowell, District
Attorney, Esmeralda County, for Respondent.
1. Criminal Law.
If jury in murder case is allowed to separate under conditions indicating possibility of improper
communication, burden is upon state to show that such separation was not prejudicial.
2. Criminal Law.
In murder prosecution, evidence sustained implied finding that separations of jurors were not prejudicial.
3. Criminal Law.
Where state established that there was no tampering with or misconduct on part of juror, separation of
jurors during murder trial was not sufficient ground for new trial.
4. Criminal Law.
In murder prosecution, where no objection was made during trial and jury was duly cautioned by court
not to separate, nor to allow any person to talk to them about case, fact that deputy sheriff had not been
administered official oath for his care of jury during adjournment for meals, or until night case was
committed to jury, did not obligate court to set aside verdict and grant new trial as matter of law.
5. Homicide.
In murder prosecution, where accused, in response to reports of fights, approached those suspected of
being involved and, according to testimony of accused and one other, accused was attacked, retreated and
finally shot in self-defense after giving warning, while according to other testimony accused shot without
warning after alleged victim started to get off ground, instruction relating to manslaughter was proper.
NRS 175.455, 175.460, 200.070.
OPINION
Parsons was charged with murder. He was convicted of involuntary manslaughter and
sentenced to one to five years.
years. On his appeal from the judgment, he assigns as error (1) that the jury was improperly
allowed to separate on numerous occasions; (2) that one of the persons charged as custodians
of the jury had not been sworn; and (3) that it was error to instruct the jury relative to
manslaughter.
Parsons was a deputy sheriff of Esmeralda County. He lived at Coaldale, 66 miles from
Goldfield, county seat of Esmeralda County, and owned a bar at Silver Peak some 24 miles
from Coaldale. On the evening of December 12, 1955 two separate reports were made to
Parsons at Silver Peak of an awful fight in Coaldale involving knives and bottles. Parsons
drove to Coaldale and asked a man by the name of Whipperman to accompany him, and they
drove down the road to the location of where the altercation was fixed. Here something of a
fight took place concerning which both Parsons and Whipperman told of an attack by the
deceased on Parsons, a retreat and warning by Parsons and finally a shot by Parsons in
self-defense which killed the deceased.
(1) Appellant cites six different occasions when the jury was allowed to separate: First, on
the first day of the trial by being placed in three cars for the trip to the Santa Fe Restaurant in
Goldfield for supper; second, on the return from the Santa Fe to the courthouse; third, when
they were divided into three groups in three separate cars to make the 26-mile trip from
Goldfield to Tonopah to stay at the Mizpah Hotel overnight, there being no satisfactory
sleeping accommodations in Goldfield; fourth, at the Mizpah Hotel, where separate groups
occupied separate rooms; fifth, when they ate breakfast at four separate tables at the Tonopah
Club in Tonopah the morning of March 30, 1956; sixth, when they were divided into three
separate cars for the return trip from Tonopah to Goldfield.
On the evening of March 29, the case having been committed to the jury, juror Ivan
McNett asked permission to have the car in which he was riding drive by his mother's house
so that he could tell her he was detained on the jury and would not be home. This was done,
and we have below detailed the circumstances surrounding the occasion.
we have below detailed the circumstances surrounding the occasion.
[Headnote 1]
The rule in this state is that if the jury is allowed to separate under conditions indicating
the possibility of improper communication, the burden is upon the state to show that such
separation was not prejudicial. State v. Parsons, 7 Nev. 57. See also State v. Harris, 12 Nev.
414. At the hearing of the motion for new trial which was based upon the separation of the
jury, there were introduced in evidence affidavits of three of the jurors and the oral testimony
of the other nine. The testimony of the sheriff and the other two bailiffs in charge of the jury
during the asserted separations was also heard. At the conclusion of the evidence on the
motion for new trial and after argument of counsel, the court made an order denying the
motion. No findings were made upon the issue raised but implicit in the court's denial of the
motion is its determination that the separations were not prejudicial.
[Headnotes 2, 3]
An examination of the record of the affidavits and testimony referred to clearly supports
such implied finding. On each occasion, when the members of the jury were taken to the
restaurant for meals, they travelled in three cars, one car closely following the other. There
was a deputy in each car. On disembarking, the jurors went directly into the restaurant and
were seated at adjoining tablesa deputy being at each table. The return to the courthouse
was made in similar manner. The same applies to the trip from Goldfield to Tonopah, the
return trip from Tonopah to Goldfield and the breakfast had at Tonopah. On one occasion one
of the jurors at one of the meals saw two friends whom he greeted with Hi. On the occasion
of leaving Goldfield for Tonopah to spend the night at the latter place the two McNett
brothers on the jury spoke to the sheriff in the hallway of the courthouse, advised that their
mother was in a wheel chair, that a woman stayed with her in the daytime and usually one of
the boys stayed at night, so they would have to see her and tell her that they were
detained on the jury.
time and usually one of the boys stayed at night, so they would have to see her and tell her
that they were detained on the jury. The McNett car accordingly stopped at the home of
McNett's mother on the way and McNett gave her the information. The information was
given on the porch of Mrs. McNett's house, in the presence and hearing of the sheriff, with
the remaining jurors in the car but a few feet away. The sheriff testified positively that
nothing concerning the case was said. A similar visit on the way back from Tonopah to
Goldfield was of like nature. The testimony of the five women jurors and the seven men
jurors is to the effect that on not one of the instances of the separations of which complaint is
made did any condition exist indicating the possibility of improper communication, and on
none of these occasions was the case discussed. Giving full effect to the ruling of this court in
State v. Parsons, supra, the court later held in State v. Harris, supra, at p. 422, that where the
state accepts and meets the burden of proof to the effect that there was no tampering with or
misconduct on the part of a juror, the separation in question was not sufficient ground for a
new trial, citing State v. Jones, 7 Nev. 408, Carnaghan v. Ward, 8 Nev. 30, and People v.
Boggs, 20 Cal. 432.
We need not, under the circumstances, consider whether there was in legal effect a
separation of the jury under the contemplation of our statute.
In this case the state did show to the satisfaction of the district judge, and to our complete
satisfaction, that there was no tampering with, or misconduct on the part of the juror, the
separation that occurred was therefore not a sufficient ground for granting a new trial. Such
was the language of this court in State v. Harris, supra, p. 422, and such is our conclusion in
the instant case.
[Headnote 4]
(2) Sheriff E. N. Kitchen and deputy Frances Carlson had, at the time of the first
adjournment, when the jury was taken to lunch, been administered the official oath to take
proper charge of the jury. Deputy Archie M. Cordova, a duly appointed and sworn deputy
sheriff, had not been administered the official oath for his care of the jury during the
adjournment for meals, or until the night of March 29, 1956, when the case was
committed to the jury.
the jury during the adjournment for meals, or until the night of March 29, 1956, when the
case was committed to the jury. This situation is assigned as prejudicial error. No objection to
his participation in taking charge of the jury without a new oath was made at any stage of the
trial. Defendant and his attorney were present on all occasions. The jury were duly cautioned
by the court not to separate, nor to allow any person to talk to them about the case. As
heretofore noted, the state proved, at the hearing of the motion for new trial, that there was
nothing tending to show that the jury were exposed to any influence that might interfere with
the impartial performance of their duties or in any way prejudice the defendant. Under the
circumstances appearing from the record, the trial court was not obliged, as a matter of law,
to set aside the verdict and grant a new trial because the special oath had not been
administered to Cordova prior to the final submission of the case to the jury. United States v.
Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, 304. See also Alterberry v. State, 56 Ark.
515, 20 S.W. 411.
[Headnote 5]
(3) The third error assigned is in the giving of a manslaughter instruction to the jury. As
noted, Parsons was charged with murder and convicted of involuntary manslaughter. The
defendant contended at the trial and contends here that the entire defense relied upon by the
defendant was that of self-defense and that if he was not subject to conviction of murder he
was entitled to an acquittal. The information charged defendant with the crime of murder.
NRS 175.455 provides: In all cases the defendant may be found guilty of any offense the
commission of which is necessarily included in that with which he is charged. * * * NRS
175.460 provides: 1. Upon the trial of an indictment or information, the defendant may be
convicted of the crime charged therein, or of a lesser degree of the same crime. * * * 2.
Whenever the jury shall find a verdict of guilty against a person so charged, they shall in their
verdict specify the degree or attempt of which the accused is guilty. The statutory definition
of involuntary manslaughter provides, in part, as follows: NRS 200.070. "Involuntary
manslaughter shall consist in the killing of a human being, without any intent so to do, in
the commission of an unlawful act, or a lawful act which probably might produce such a
consequence in an unlawful manner; * * *."
provides, in part, as follows: NRS 200.070. Involuntary manslaughter shall consist in the
killing of a human being, without any intent so to do, in the commission of an unlawful act,
or a lawful act which probably might produce such a consequence in an unlawful manner; * *
*.
We have noted the testimony of appellant, corroborated by Whipperman, indicating that
appellant's shot was fired in self-defense. Other testimony, however, is quite to the contrary.
The deceased Jimmy Leon Dennis, 15, Shirden Woody, 19, and Don Arbirt Hass, 21, after a
rather rough drinking and fighting party had driven down the road a short distance, spread a
mattress and lain down to sleep with a canvas over them. Hass testified: Well, we was there
sleeping. I don't know how long we had been asleep, but when I woke up, the first thing I
remember somebody was jerking me by the hair of the head. And just as I started to raise up
[appellant] hit me with something on my head. * * * He hit me above the eye with a hard
instrument. * * * He did not tell me he was an officer or that I was under arrest. * * * Well,
after he struck me, the next thing I remember, I was setting up and blood was running down
the side of my face, and I wiped the blood off and about the time I wiped the blood off, well,
Jimmy Dennis started to raise up and he said: What's going on here?' and he started to rise to
his feet, and he got one foot on the ground and the other foot was still on the mattress when I
heard the gun fire. * * *
Woody testified that as they were sleepy they pulled off the road and went to sleep. The
next thing I remember after that, Parsons come down and was shaking me by the hair of the
head, and he said, Get up, you damned butcher-knife artist', and I started to raise up, and he
started hitting me on the side of the head. I guess he woke up Don. Then I kind of begin to
come out of it, and Jimmy [the deceased] started to get up, and I began to move down
towards the foot of the bed. And when Jimmy started to get up, Parsons shot him then. * * *
It was within the province of the jury to believe and to conclude that appellant was
engaged in the lawful act of apprehending the three men who had been engaged in such
fighting and other disturbances to such an extent that they had been reported by two
independent sources and to such an extent that one Claude Wiltrout and his wife feared
to go to their home unless the three men were apprehended.
of apprehending the three men who had been engaged in such fighting and other disturbances
to such an extent that they had been reported by two independent sources and to such an
extent that one Claude Wiltrout and his wife feared to go to their home unless the three men
were apprehended. However, it was also within the province of the jury to believe the
testimony of Hass and Woody, in connection with other evidence adduced, to the effect that
the shooting of Dennis by Parsons was without any threat or attack by Dennis against Parsons
and that the attempted apprehension of Dennis by shooting him was without any cause or
justification and was in such sense an unlawful manner of apprehending or arresting him.
Under the circumstances we feel that the giving of proper involuntary manslaughter
instructions was, under the statutes quoted, amply justified.
Affirmed.
____________
74 Nev. 309, 309 (1958) Milum v. Herz Brothers Water Well Drilling & Supply Co.
WALLACE R. MILUM and FRANCES F. MILUM, Appellants, v. HERZ BROTHERS
WATER WELL DRILLING AND SUPPLY COMPANY, Respondent.
No. 4064
October 1, 1958. 329 P.2d 1068.
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Property owners' action for recovery of money paid to well driller on ground that well
driller had failed to complete well in accordance with verbal contract. The lower court
entered judgment for well driller and property owner appealed. The Supreme Court, Badt, C.
J., held that evidence sustained findings that well driller did drill well for property owner and
discovered water, and that there was no proof of negligence on part of well driller,
notwithstanding fact that property owner later caused new well to be drilled 10 feet from
site of old well and such new well produced a satisfactory flow.
driller, notwithstanding fact that property owner later caused new well to be drilled 10 feet
from site of old well and such new well produced a satisfactory flow.
Affirmed.
Lohse and Fry, of Reno, for Appellants.
Maurice J. Sullivan, of Reno, for Respondent.
1. Money Received.
In property owners' action against driller of well, which produced negligible amount of water, for
recovery of money paid on ground that driller had failed to complete well in accordance with verbal
contract, evidence sustained trial court's findings that driller did drill well for property owner and
discovered water, that there was no negligence on part of driller and that driller did complete job in
workmanlike manner, notwithstanding fact that property owner later caused new well to be drilled 10 feet
from site of old well and new well produced a satisfactory flow of water.
Where there is a sharp conflict in testimony and the court's findings are supported by record, Supreme
Court will not disturb the findings.
3. Licenses.
Statute declaring it unlawful to engage in business or to act in capacity of contractor without license and
providing that no person so engaged shall bring or maintain any action in court for collection of
compensation, cannot be construed to mean that an unlicensed contractor may not defend an action brought
against him to recover money paid on ground that he failed to perform in accordance with contract. NRS
624.230, 624.320.
4. New Trial.
Fact that supporting papers failed to set forth any facts or circumstances that would legally excuse
plaintiffs from producing evidence set forth was a valid reason for denying new trial on ground of newly
discovered evidence.
OPINION
In this appeal by the Milums from a judgment in favor of the defendant well drilling
company, the appellants assert as error the orders of the trial court (1) entering a judgment for
defendant contrary to the facts and law, (2) denying the motion of plaintiffs for summary
judgment, and {3) denying appellants' motion for new trial.
ment, and (3) denying appellants' motion for new trial. We have found no merit in any of
these assignments and conclude that the judgment must be affirmed.
The Milums entered into an oral contract with the well drilling company whereunder the
latter was to drill a well on plaintiffs' property on the Sun Valley Road in Washoe County for
a compensation of $6.50 per linear foot. On completion of the well, at a depth of 226 feet,
appellants paid the drilling company $1,324.67. Water was produced for about a day,
following which only a trickle was produced. Efforts to clean the well, first by the drilling
company and then by others employed for the purpose, were unsuccessful. Plaintiffs' action
was for the recovery of the money paid on the ground that defendant had failed to complete
the well in accordance with the verbal contract. The Milums had later caused a new well to be
drilled ten feet from the site of the old well, which new well produced a satisfactory flow.
[Headnotes 1, 2]
(1) The trial court found: That defendant did drill a well for the plaintiffs and discovered
water; that there is not sufficient evidence to prove negligence on the part of defendant or that
defendant did not complete its job in a workmanlike manner. In its decision the court
pointed out the conflicts in the evidence with reference to the workmanlike nature of the job,
the propriety of perforating the pipe for some 30 feet against the contention that it should
have been perforated for only three to six feet, the nature of the pump used, the custom of
well drillers in cleaning out a well and other items, and noted: On every material point there
was a sharp conflict in the testimony, and held that the plaintiffs had not proved their case by
a preponderance of the evidence. The court's comments on the conflicts in the evidence are
supported by the record. In such a situation this court will not disturb the finding.
[Headnote 3]
(2) The plaintiffs' motion for summary judgment was based upon NRS 624.230 declaring
it unlawful to engage in the business or act in the capacity of a contractor without a license,
and upon NRS 624.320 providing that no person so engaged "shall bring or maintain any
action in the courts of this state for the collection of compensation for the performance of
any act or contract for which a license is required by this chapter without alleging and
proving" that he was a duly licensed contractor.
tractor without a license, and upon NRS 624.320 providing that no person so engaged shall
bring or maintain any action in the courts of this state for the collection of compensation for
the performance of any act or contract for which a license is required by this chapter without
alleging and proving that he was a duly licensed contractor. Appellants sought in the district
court, and seek here, a construction of the statute to the effect that such unlicensed contractor
may neither commence nor defend an action. Such construction would do violence to the
plain meaning of the act.
[Headnote 4]
(3) The motion for new trial was based upon the alleged discovery of evidence material to
the plaintiffs which could not with reasonable diligence have been discovered and produced
at the trial. The supporting affidavits were from persons who had participated in later work
on, and examination of, the well drilled by defendant, as proof that the drilling had not been
done in a workmanlike manner. The court held that the motion and supporting papers failed
to set forth any facts or circumstances that would legally excuse the plaintiffs from producing
the evidence set forth. This was a valid reason for denying the motion.
We find no error in the points assigned. Affirmed with costs.
____________
74 Nev. 312, 312 (1958) Wilson v. Payne
JOSEPH R. WILSON and BEULAH WILSON, His Wife, Appellants, v. WALTER F.
PAYNE and THEO PAYNE, His Wife, Also Known as MRS. WALTER F. PAYNE, Doing
Business as MA RUE BEAUTY AND SLENDERIZING STUDIO, Respondents.
No. 4003
October 2, 1958. 330 P.2d 120.
Department No. 1.
Action for negligence. From a judgment of involuntary dismissal in the lower court, the
plaintiffs appealed. The Supreme Court, Eather, J., held that the evidence of negligence and
contributory negligence was sufficient for the jury.
Woodburn, Forman, Wedge, Blakey, and Thompson, of Reno, for Appellants.
Vargas, Dillon and Bartlett, of Reno, for Respondents.
Negligence.
In action for injuries sustained by beauty parlor patron who was provided with wool socks, and who,
while in stocking feet, slipped on a waxed floor and fell, evidence of negligence of defendant beauty
parlor and contributory negligence of the patron was sufficient for the jury.
OPINION
Plaintiffs appeal from involuntary dismissal of this action ordered by the trial court under
Rule 41(b) NRCP. The order was entered after plaintiffs had completed presentation of their
evidence upon trial. It was based upon the ground that plaintiffs had failed to prove a
sufficient case for the jury. The sole question upon appeal is whether, upon the evidence
presented, dismissal upon this ground was proper.
The action is for personal injuries sustained by Beulah Wilson due to the alleged
negligence of defendants. The injuries were sustained at the beauty parlor operated by
defendants.
Mrs. Wilson was dressed for treatment in the uniform provided by defendants, including
wool socks. In stocking feet she slipped on the floor and fell. The alleged negligence lay in
the fact that the floor was waxed or polished. Evidence was presented from which it would
appear or could be inferred that defendant Theo Payne knew or should have known that the
floor was waxed and that she had been warned by an employee that a waxed floor was
dangerous to her customers wearing wool socks.
and that she had been warned by an employee that a waxed floor was dangerous to her
customers wearing wool socks.
Upon this appeal defendants support the action of the trial court upon the basis that the
waxing and polishing of floors has become such a standardized manner of maintenance that it
cannot be held to constitute negligence in the absence of proof that faulty materials were used
or that the materials were negligently applied.
This cannot be said to be true in every case, however. It must depend, among other factors,
upon the use to which the floors are to be put. In this case it was available to the jury to
determine that the waxing or polishing of floors which are to be used by persons in stocking
feet is unsafe and, under the circumstances, might constitute negligence.
Defendants also assert that plaintiff was guilty of contributory negligence. Upon the
record, however, this also remained a question for the jury as a proposition upon which
reasonable minds might well differ.
We conclude that a sufficient case for the jury had been made by the plaintiffs and that
involuntary dismissal was error.
____________
74 Nev. 314, 314 (1958) Toiyabe Supple Co. v. Arcade
TOIYABE SUPPLY COMPANY, a Corporation, and B. E. O'MALIA, Appellants, v.
ARCADE DRESS SHOPS, INC., Respondent.
No. 4082
October 6, 1958. 330 P.2d 121.
Appeal from the Fifth Judicial District Court, Mineral County; John F. Sexton, Presiding
Judge.
Action was brought to recover damages for alleged conversion of certain store fixtures.
The lower court entered judgment in favor of the plaintiff, and certain of the defendants
appealed. The Supreme Court held that where plaintiff filed no answering brief and thereby
waived its right to argue the case on appeal, Supreme Court, in its discretion, could
regard the default of the plaintiff as a confession of error, and could reverse the judgment
as to the appealing defendants without consideration of the merits of the appeal.
that where plaintiff filed no answering brief and thereby waived its right to argue the case on
appeal, Supreme Court, in its discretion, could regard the default of the plaintiff as a
confession of error, and could reverse the judgment as to the appealing defendants without
consideration of the merits of the appeal.
Upon failure of respondent to file answering brief, reversed without consideration of
the merits of the appeal.
Guild, Busey and Guild and Howard L. Cunningham, of Reno, for Appellants.
Appeal and Error.
Where respondent filed no answering brief and thereby waived its right to argue case on appeal,
Supreme Court could, in its discretion, regard the default of respondent as a confession of error, and
could reverse the judgment without consideration of the merits of the appeal. Supreme Court Rules, rule
XI, subd. 3.
OPINION
Per Curiam:
Arcade Dress Shops, Inc. obtained a judgment against Toiyabe Supply Company and B. E.
O'Malia and Gladys Hosang for damages for the conversion of certain store fixtures. Hosang
did not appeal and the judgment stands as against her. Appellants contend that the record
does not support a judgment against them. They represent that they are the owners and lessors
of the premises in which the fixtures were used (most of which were movable fixtures not
affixed to the building) and insist that the record is bare of any evidence showing any
conversion by them other than the mere fact that they were the owners of the real estate.
Further, they represent that the record demonstrates that at the time of trial Hosang claimed
title to the fixtures and admitted that they were then in her possession.
Respondent Arcade Dress Shops, Inc., owner of the fixtures, filed no answering brief, and
we heretofore entered an order to the effect that it had waived its right to argue the case.
to argue the case. Rules of the Supreme Court, XI (3).
Under these circumstances this court may, in its discretion, regard the default of the
respondent as a confession of error, and reverse the judgment as to the appellants without
consideration of the merits of the appeal. Hartford Mining Co. v. Home Lumber & Coal Co.,
61 Nev. 1, 107 P.2d 128, 114 P.2d 1091. In our view this is an appropriate case for such
method of disposition.
Judgment reversed as to these appellants.
____________
74 Nev. 316, 316 (1958) Friendly Irishman v. Ronnow
THE FRIENDLY IRISHMAN, Inc., a Nevada Corporation, Appellant, v. BETH RONNOW,
Respondent.
No. 4075
October 14, 1958. 330 P.2d 497.
Department No. 1.
Action by automobile buyer to rescind contract of purchase. The trial court entered
judgment for buyer and seller appealed. The Supreme Court, Merrill, J., held that where seller
represented to buyer that an automobile was new when he knew that in fact it was not new,
such intentional misrepresentation of a material fact resulting in a sale of the automobile
constituted actual fraud which was a proper ground for rescission of the contract by buyer.
Judgment affirmed.
Harry E. Claiborne, of Las Vegas, for Respondent.
1. Sales.
Where seller represented to buyer that an automobile was new, when he knew that in fact it was not new,
such intentional misrepresentation of a material fact resulting in a sale of the automobile constituted actual
fraud which was a proper ground for rescission of the contract by buyer.
2. Evidence.
In action for rescission of an automobile on ground of misrepresentation that automobile was new, parol
evidence rule did not apply to bar evidence which demonstrated fraud in the procurement of the contract of
sale and which served to defeat the contract and not to vary its terms.
3. Sales.
Existence of fraud in procurement of a contract for sale of an automobile gave buyer the right to
rescission and she was not limited to damages for breach of warranty.
4. Election of Remedies; Estoppel.
An essential requirement of either a waiver or election is knowledge of material facts by the party
waiving or electing.
5. Sales.
Where, in action for rescission of a contract for sale of an automobile, payments on the contract were
made by buyer, not with knowledge that the automobile was not new, but in light of seller's continuing
insistence that the automobile was new when sold, such payments did not constitute a waiver or election,
and therefore did not preclude buyer's right to a rescission based upon seller's misrepresentation as to
condition of automobile.
OPINION
This appeal is taken by the defendant below from judgment rescinding a contract for the
purchase of an automobile. Appellant contends that grounds for rescission have not been
established and that any right to rescind was waived.
Appellant, defendant below, was a used-car dealer operating in Las Vegas. Plaintiff
purchased a car on April 16, 1956, paying $400 down and contracting for monthly payments
of $93.23 upon the balance due. She had made clear to defendant that she wished a new car
and not a used car. Defendant had represented to her that the car sold was a new car.
Plaintiff later discovered that the frame of the car was sprung. She returned it to defendant,
demanding a new car. Defendant offered to repair the car, but refused to comply with
plaintiff's demand, still insisting that the car was new when sold to plaintiff. Plaintiff kept the
car until June 1956, making two payments according to the terms of the contract. She then
returned the car and this suit for rescission was brought June 26, 1956.
this suit for rescission was brought June 26, 1956. In her complaint she alleged that defendant
had fraudulently misrepresented that the car was new, and that she had entered into the
contract in reliance upon said representation.
At the time of trial defendant's president under cross-examination admitted that when the
contract of sale was financed by him he had placed upon the contract without plaintiff's
knowledge, the letters NN which notation, to those in the automobile business, signifies
that the car is near new.
Judgment of the court below granted rescission of the contract and granted the plaintiff
restitution in the sum of $586.40, which was the amount of the down payment plus the two
monthly payments made upon the contract. From that judgment this appeal is taken.
[Headnote 1]
The definition of near new, as that term is used in the automobile business, does not
appear. In the absence of any explanation, however, it must be assumed that it is used to
specify an automobile which cannot properly be classed as new. Under the conceded facts,
then, it can hardly be questioned that defendant's representations to plaintiff that the car was
new were made with knowledge that they were false, and with the intent to deceive plaintiff.
Such intentional misrepresentation of material facts in a contract, resulting in the intended
deception, constitutes actual fraud, which is a proper ground for rescission of the contract.
See Williston on Contracts (Rev. Ed.), Vol. 5, p. 4153, sec. 1487; Restatement of the Law,
Contracts, Vol. 2, p. 891, ch. 15, sec. 471.
[Headnote 2]
Defendant asserts that the written contract contained no warranty that the car was new, and
by its terms negatived the existence of any warranty not there expressed. Defendant contends
that evidence of its representations that the car was new was received in violation of the parol
evidence rule.
That evidence demonstrated fraud in the procurement of the instrument and served to
defeat the instrument and not to vary its terms.
and not to vary its terms. The parol evidence rule, then, does not apply. See Tallman v. First
National Bank, 66 Nev. 248, 208 P.2d 302; accord, Western National Insurance Co. v. Trent,
69 Nev. 239, 247 P.2d 208.
[Headnote 3]
Defendant contends that plaintiff's proper remedy is for breach of warranty and not for
rescission; that in offering to repair, defendant had offered to do all required of it under a new
car warranty.
The existence of fraud gives to the plaintiff the right to rescission and she is not therefore
limited to damages for breach of warranty.
Defendant contends that the payments upon the contract made by plaintiff constituted an
election by her to proceed with the contract and a waiver of her right to rescind.
[Headnotes 4, 5]
An essential requirement of either a waiver or election is knowledge of the material facts
by the party waiving or electing. See Santino v. Glens Falls Ins. Co., 54 Nev. 127, 139, 9 P.2d
1000; Robertson v. Robertson, 43 Nev. 50, 59, 180 P. 122, 124, 187 P. 929. Since rescission
is sought upon the ground of fraud, knowledge of the material facts constituting the fraud
must appear if the payments are to be held to constitute waiver or election.
The payments made by plaintiff were, it is true, made with knowledge that the car was
defective. They were not made, however, with the knowledge that the car, when sold, was not
new and that the representations of defendant in this respect were knowingly false. Rather,
they were made in the light of defendant's continuing insistence that the car, when sold, was
new. The payments cannot, then, be said to constitute a waiver or election which would
preclude a rescission based upon defendant's misrepresentations.
Affirmed.
____________
74 Nev. 320, 320 (1958) Tryba v. Fray
ICIA ELLEN TRYBA, Appellant, v. RICHARD E. FRAY, Individually and Doing Business
as Fray Western Plumbing & Heating Co., BOB BEEKS and SECURITY PROPERTIES
CORPORATION, Respondents.
No. 4148
October 15, 1958. 330 P.2d 499.
Department No. 2.
The trial court entered judgment, and appellant appealed, and respondents made a motion
to dismiss the appeal. The Supreme Court held that appeal taken on original papers on file in
District Court, pursuant to order of trial judge entered under provisions of Rule of Civil
Procedure, would not be dismissed because of failure of appellant to serve on respondents a
copy of the transcript of testimony, which formed a part of the record on appeal.
On motion to dismiss appeal, motion denied.
Stewart, Horton and Campbell, of Reno, for Appellant.
Vargas, Dillon and Bartlett, of Reno, for Respondent Richard E. Fray.
Goldwater, Taber and Hill, of Reno, for Respondent Bob Beeks.
Peter Echeverria, of Reno, for Respondent Security Properties Corporation.
Appeal and Error.
Appeal taken on original papers on file in District Court, pursuant to order of trial judge entered
under provisions of Rule of Civil Procedure, would not be dismissed because of failure of appellant to
serve on respondents a copy of the transcript of testimony, which formed a part of the record on appeal.
NRCP 75(b, i, o).
74 Nev. 320, 321 (1958) Tryba v. Fray
OPINION
On Motion To Dismiss
Per Curiam:
Respondents have moved to dismiss this appeal upon the ground that appellant has failed
to serve upon them a copy of the transcript of testimony which forms a part of the record on
appeal.
The appeal was taken upon the original papers on file in the court below, pursuant to order
of the trial judge entered under the provisions of Rule 75(i) NRCP. Respondents rely on the
provisions of Rule 75(o) NRCP with reference to an appeal upon the original papers ordered
by this court. That rule provides in part Appellant shall furnish counsel for each party
appearing separately a copy of such transcript.
Rule 75 would appear to be in a state of confusion as to the necessity for service upon
opposing parties of a copy of the transcript of testimony included in a record on appeal. Rule
75(b) dealing with the transcript appears clearly to contemplate that no copies need be
provided, but that the copy filed with this court shall be available for the use of the other
parties.
Undoubtedly the rule should be clarified to eliminate apparent inconsistencies. Until such
clarification is accomplished it is the view of this court that Rule 75(o) should be read
consistently with Rule 75(b) and that no copy of the transcript in the case need be served
upon opposing counsel.
Motion denied.
____________
74 Nev. 322, 322 (1958) Wolpert v. Knight
EUGENE B. WOLPERT, Appellant, v.
RALPH KNIGHT, Respondent.
No. 4108
October 24, 1958. 330 P.2d 1023.
Appeal from judgment of the Seventh Judicial District Court, White Pine County; Harry
M. Watson, Judge.
Action by payee of $2,500 check given to take up five earlier checks of $500 each against
maker. The trial court entered judgment for payee for $2,000 and maker appealed. The
Supreme Court, Badt, C. J., held that evidence sustained finding that only one of five checks
was given in consideration of gambling debt.
Affirmed.
Jon R. Collins, of Ely, for Appellant.
E. R. Miller, Jr., of Ely, for Respondent.
Gaming.
In action by payee of $2,500 check given to take up five earlier checks of $500 each against maker,
wherein maker pleaded as a special defense that check was given in consideration of gambling debt,
evidence sustained finding that only one of five checks was given in consideration of gambling debt.
OPINION
Knight recovered a judgment for $2,000 against Wolpert on his complaint based on
Wolpert's check for $2,500 issued and delivered by Wolpert to Knight to take up five earlier
$500 checks. Wolpert pleaded as a special defense that the check was given in consideration
of a gambling debt. The court's finding against this contention is amply supported by the
record, which, without contradiction, shows that on each of four occasions at which Knight
cashed Wolpert's $500 check, Wolpert was not indebted to Knight. A fifth $500 check was
executed by Wolpert at the gambling table and delivered to the dealer for which the dealer
gave Wolpert $500 in chips which Wolpert proceeded to play at the table.
to the dealer for which the dealer gave Wolpert $500 in chips which Wolpert proceeded to
play at the table.
The contention presented on Wolpert's appeal from the judgment is that the $2,500 check,
as well as all of the earlier $500 checks taken up thereby, were nullities by reason of the
provision that any such bill, note or security given for the reimbursing or repaying any
money knowingly lent or advanced at the time and place of such play, to any person or
persons so gaming or betting as aforesaid, or that shall, during such play, so play or bet, shall
be utterly void, frustrate and of none effect * * *. Statute of Anne, Sec. 1, adopted into the
law of this state as part of the common law of England. West Indies v. First National Bank,
67 Nev. 13, 214 P.2d 144. Our conclusion is that the contention is not well founded, and we
turn to the record to determine the circumstances under which each check was cashed.
Respondent operated the Townclub, a cafe, bar and casino, in Ely. On four different
occasions, over a period of three days, appellant went to the cashier's desk at the Townclub
and asked if they would cash his check. On each occasion he did so. Knight was asked on
cross examination: Q. Isn't it true, Mr. Knight, when Mr. Wolpert would gamble and come
back, or he would build up a debt, then you would give him more money? A. That is not true.
Q. Now the money he got from you for the checks, he would use it for gambling? A. No, sir,
he would not. That is not a true statement. I say Mr. Wolpert used part of it for gambling but
how much I don't know. * * * When he got money from me, at times he would go to the bar
and drink or buy drinks at the bar for others, then he would leave and I presume go to the
corner for awhile, then come back. * * * Q. Isn't it true you gave him money so he would
gamble? A. I did not, that is not true. Q. He did gamble? A. That is right, I saw him gamble
but I did not know he would gamble, I thought there was a possibility he would, but I had no
way to control that he would.
On each occasion when Wolpert asked Knight to cash his check he owed Knight no money
at all. On the last occasion Wolpert bought $500 in chips. It was for this item of $500 that
the court denied him a judgment.
item of $500 that the court denied him a judgment. Knight further testified: Q. What did he
do with the cash you gave him? A. Mr. Wolpert did several things with the money, he bought
drinks for the house, gave money to his friends, to the best of my knowledge he spent money
on girls, then he left my place of business. * * * He gave money to his foreman, Fred
Harkreader, and to Bill Miller. I would say between $75 and $100 to each. I saw him put his
hands in his pockets and I saw him pull out money, how much I don't know. I saw him give
money to a girl, and what he did with the money outside of my establishment, I don't know,
but I assume that he spent the money because he came back later and cashed another check.
On one, two or three occasions he went to the [gambling] table. On several occasions he had
discussions with his friends before going back to the tables. I have no way of telling whether
he won or lost money in my place of business. Part of the chips [for which the last $500
check was given] he gave to Bill Miller and Fred Harkreader, cashing the chips for silver. I
cash payroll checks in my place. I have a cashier stand where these checks are cashed. This is
separate, by itself, and handled by a cashier. * * * I would say that Wolpert spent part of the
time gambling, I don't know how you would say which part, as he was in and out of the place.
He did not stay in my place for a long period of time without moving out. * * * He is the type
of man that likes to spend money and put on a big front. He is the type of person that buys
drinks for the whole house, gives money away, he would gamble, discuss large sums of
money to impress people present; it wouldn't take him long to spend money. * * * It is not
true that part of the money that Mr. Wolpert received from cash was for gambling. Out of the
first $500 check he might have used $20, I don't know, how much he used of the $500, I don't
know, maybe he used $20 or $25, I don't know. Some of the money was used for gambling.
Ann Finley, who was the cashier at the Townclub, testified that Wolpert came to the
cashier's window and wanted to cash a check for $500. I am authorized to cash checks but I
also get Mr. Knight's authorization for those checks, so I went and got Mr.
those checks, so I went and got Mr. Knight and he came to the cashier's cage. He gave him
$500. I saw Mr. Wolpert cash checks three times. He would get his money and go to the bar,
buy drinks and has given away money, given money to people and gone to the gambling
tables and then gone out of the establishment, he moved around, kind of back and forth.
Appellant contends that the present appeal is governed by the case of Burke & Co. v.
Buck, 31 Nev. 74, 99 P. 1078, 22 L.R.A., N.S., 627. There Buck, after losing about $1,000 at
roulette, endorsed a negotiable certificate of deposit at the table and delivered it to the dealer
who placed it in the drawer of the roulette table. The dealer gave him $500 in gold coin, with
which Buck continued to play, eventually losing it all. The court held that the assignment
was made at a gambling table and during the progress of play and therefore came squarely
within the Statute of Anne, citing Evans v. Cook, 11 Nev. 69. The court repeated and
emphasized the fact that the certificate was transferred during the progress of the play.
In Craig v. Harrah, 66 Nev. 1, 201 P.2d 1081, 1084, we find a reasonable guide for the
determination of cases like the present one. There this court said: In determining the purpose
for which the $500 was advanced, the significance and relevancy of the surrounding
circumstances and environment are readily apparent. If the advancement was made in a
gambling establishment in full operation, by the proprietor or his agent, to one then, or
immediately prior thereto, engaged in gambling and who ran short of money, the game still
being in progress, or if his conversation or the circumstances indicated he intended to resume
playing, the purpose of the advancement becomes clear. On the other hand, if the
advancement was at a different place than a gambling establishment, or if same was not made
at a time when the recipient had been recently playing, and some other, legitimate, purpose is
stated by the recipient, then no presumption or inference that the advancement was for a
gambling purpose is justifiable from such circumstances.
The trial court was justified in using the foregoing for its guide. This it apparently did, and
the evidence supported its findings and judgment.
Affirmed.
____________
74 Nev. 326, 326 (1958) Sloan v. City of Reno
KATHERINE SLOAN, Appellant, v. THE CITY OF RENO, a Municipal Corporation,
Within the County of Washoe, State of Nevada, Respondent.
No. 4078
November 7, 1958. 331 P.2d 255.
Department No. 2.
Action against city to recover for injuries. From a judgment for defendant, the plaintiff
appealed. The Supreme Court, Eather, J., held that in action for injuries to pedestrian who
stumbled over a two inch sidewalk separation caused by tree roots, under evidence, the city's
negligence and pedestrian's contributory negligence were questions for jury.
John S. Halley, of Reno, for Appellant.
Goldwater, Taber & Hill, and Samuel B. Francovich, of Reno, for Respondent.
In determining city's liability for negligence caused by fall on sidewalk, negligence is established if under
all circumstances defect in sidewalk is such that a reasonably prudent man with knowledge of defect would
anticipate danger to persons who, while exercising reasonable care for their own safety, made use of the
walk, and if upon such question minds of reasonable men might differ, jury issue is presented.
In action for injuries to pedestrian resulting from fall on sidewalk by stumbling over a two inch
separation which was caused by tree roots, evidence that condition of walk had
existed for three or four years prior to accident was sufficient for jury on issue of
city's negligence.
sidewalk by stumbling over a two inch separation which was caused by tree roots, evidence that condition
of walk had existed for three or four years prior to accident was sufficient for jury on issue of city's
negligence.
Where pedestrian, after dark, stumbled over two inch sidewalk separation caused by tree roots, pedestrian
was not familiar with sidewalk, trees shaded the walk from street lights and pedestrian was looking ahead
to the lights of a store to which pedestrian was proceeding, and pedestrian testified that light upon walk was
such that even had she been looking down she would not have seen the defect, pedestrian's contributory
negligence was for jury in action against city for resulting injuries.
OPINION
Upon this appeal the plaintiff below asserts that the trial judge improperly took the case
from the jury through an order of involuntary dismissal. The sole question before us is
whether issues remained for jury determination.
The action is for personal injuries resulting from a fall on a sidewalk in the city of Reno.
The fall resulted from stumbling over a two-inch sidewalk separation. The break in the walk
was caused by tree roots. This condition of the walk had existed for three or four years prior
to the accident. The plaintiff contends that the city was negligent in permitting the condition
to exist.
The trial judge, after hearing the plaintiff's case in chief, ruled as a matter of law that no
negligence had been shown, the defect being minor and trivial, and that, in any event, the
plaintiff had been guilty of contributory negligence in not having her eyes upon the walk at
the time of the accident.
The fall occurred after dark on a sidewalk with which plaintiff was not familiar. Trees
shaded the walk from street lights. Plaintiff testified she was looking ahead to the lights of a
store to which she was proceeding, but that the light upon the walk was such that even had
she been looking down she would not have seen the defect.
[Headnote 1]
In such cases as this, negligence is established if under all the circumstances of the case
the defect in the sidewalk is such that a reasonably prudent man with knowledge of the defect
would anticipate danger to persons who, while exercising reasonable care for their own
safety, made use of the walk. Arvidson v. City of Elmhurst, 11 Ill.2d 601, 145 N.E.2d 105. If
upon this question the minds of reasonable men might differ a jury issue is presented.
[Headnote 2]
In our view the minds of reasonable men might well have differed upon this question
under the facts of this case. The negligence of the city was, then, a question for the jury.
Upon the issue of contributory negligence it was stated in Stoffel v. City of Cincinnati, 87
Ohio Ap.Rep. 235, 93 N.E.2d 303, 304: It is perfectly apparent that pedestrians are required
to use their senses while proceeding along a sidewalk for other lawful purposes than a minute
inspection of that upon which they are about to tread, and have a right to presume that a
public way will not contain such traps as existed in the instant case. The Ohio court was in
that case dealing with the same sort of defect as that with which we are faced: a sidewalk
separation caused by tree roots.
[Headnote 3]
Under the facts of this case we conclude that reasonable minds might well differ upon the
issue of contributory negligence and that this question should have been left to the jury.
It was, then, error to take these issues from the jury and to decide them as matters of law.
Badt, C. J. and Merrill, J., concur.
____________
74 Nev. 329, 329 (1958) Corn v. French
RUTH CORN, Appellant, v. JAMES B.
FRENCH, Respondent.
No. 4016
November 17, 1958. 331 P.2d 850.
Appeal from the Eighth Judicial District Court, Clark County; John F. Sexton, Presiding
Malpractice action growing out of alleged unauthorized and unnecessary mastectomy.
From a judgment of the trial court in favor of defendant upon a verdict by a jury, the plaintiff
appealed. The Supreme Court, Badt, C. J., held, inter alia, that in malpractice action growing
out of an alleged unauthorized and unnecessary mastectomy, wherein the court gave
instructions fixing defendant's liability if he operated without plaintiff's consent or after
revocation of her consent and in event of defendant's failure to follow standard practice in
community, and grounds of plaintiff's objections to refusal to give requested instructions were
that the supreme court in a prior opinion in reversing a judgment of dismissal had determined
physician's liability in event of his failure to follow certain procedures, and Supreme Court
had merely determined that factual issues had been made requiring a jury determination as to
consent or its withdrawal and as to whether or not there was negligence in removal of
plaintiff's breast without pathological examination, there was no error in court's refusal to
give requested instructions.
Affirmed.
Emilie N. Wanderer, of Las Vegas, for Appellant.
Morse, Graves & Compton, of Las Vegas, for Respondent.
A denial of request of plaintiff's counsel to be granted permission to have New York attorney sit at the
counsel table with plaintiff's counsel was not error where explanation was that plaintiff's counsel had been
injured the day before and was not very well, but counsel made no request that the New York attorney be
admitted for purpose of trial.
74 Nev. 329, 330 (1958) Corn v. French
2. Trial.
Permitting two attorneys of law firm appearing for defendant to participate jointly in trial which
attorneys, with piston-like regularity, alternately rose and fired objections faster than it was humanly
possible for any single attorney to efficiently meet and oppose was within discretion of trial court and no
abuse of such discretion was shown where record did not refer to any objections, motions or orders.
3. Physicians and Surgeons.
In malpractice action growing out of alleged unauthorized and unnecessary mastectomy, refusal to charge
jury that evidence introduced by plaintiff, by way of medical treatises, which had during trial been read into
evidence, could be received and treated by jury as evidence on behalf of plaintiff was not error where
treatises had been read in evidence and were before the jury, and regular instructions as to jury's
consideration of all admitted evidence were given.
Alleged error in that court permitted introduction of personalities by defendant's counsel and that that
created bias and prejudice in jury and was prejudicial would not be considered where no reference to
record was made, and although respondent's answering brief asserted The record is utterly silent with
reference to the matter, appellant's reply brief still refrained from pointing out the place in the 364-page
transcript of trial proceedings at which such matters were recorded. Supreme Court Rules, rule 11, subd. 1.
5. Physicians and Surgeons.
In malpractice action growing out of an alleged unauthorized and unnecessary mastectomy, wherein court
gave instructions fixing defendant's liability if he operated without plaintiff's consent or after revocation of
her consent and in event of defendant's failure to follow standard practice in community, and grounds of
plaintiff's objections to refusal to give requested instructions were that the Supreme Court in a prior
opinion in reversing a judgment of dismissal had determined physician's liability in event of his failure to
follow certain procedures, and Supreme Court had merely determined that factual issues had been made
requiring a jury determination as to consent or its withdrawal and as to whether or not there was negligence
in removal of plaintiff's breast without pathological examination, there was no error in court's refusal to
give requested instructions. Rule 51, NRCP.
OPINION
This is an appeal from a judgment for defendant rendered upon a verdict by a jury in a
malpractice action growing out of an alleged unauthorized and unnecessary mastectomy.
Appellant lists six assignments of error.
74 Nev. 329, 331 (1958) Corn v. French
[Headnote 1]
(1) The first assignment of error is the court's denial of the request of the plaintiff's counsel
to be granted permission to have Mr. Miles, a member of the New York bar, to sit at the
counsel table with me. The explanation was that counsel had been injured the day before and
was not very well. She made no request that Mr. Miles be admitted for the purpose of the
trial. Defendant objected until Mr. Miles is duly admitted to practice before this court. The
assignment is without merit.
[Headnote 2]
(2) Error is assigned in permitting two attorneys of the law firm appearing for the
defendant to participate jointly in the trial, which attorneys, with piston-like regularity,
alternately rose and fired objections faster than it was humanly possible for any single
attorney to efficiently meet and oppose. We are not referred to the record for any objections,
motions or orders in the premises. The matter was within the discretion of the court and we
find no abuse of such discretion.
[Headnote 3]
(3) It is contended that the court erred in refusing to charge the jury that the evidence
introduced by the plaintiff, by way of medical treatises, which had during the trial been read
into evidence, could be received and treated by the jury as evidence on behalf of the plaintiff.
The treatises had been read in evidence and were before the jury. The regular instructions as
to the jury's consideration of all admitted evidence were given. No authorities are cited in
support of the assignment and we find no merit in it.
[Headnote 4]
(4) The fourth error assigned is that the court permitted the introduction of personalities by
respondent's counsel and that this created bias and prejudice in the jury and was prejudicial.
No reference to the record was made. Although respondent's answering brief asserted, The
record is utterly silent with reference to the matter, appellant's reply brief still refrained from
pointing out the place in the 364-page transcript of the trial proceedings at which these
matters were recorded.
74 Nev. 329, 332 (1958) Corn v. French
out the place in the 364-page transcript of the trial proceedings at which these matters were
recorded. Rule XI subd. (1) of the Rules of the Supreme Court provides: A brief must
designate the page and line, or the folio, in the record where the evidence or matter referred to
may be found, and in case of failure to do so, the court may ignore the point made. The
present is a classic example of the necessity for this rule. In any event, appellant's failure to
contradict respondent's categorical statement that the record is utterly silent with reference to
the matter justifies our conclusion that such is the case.
(5) The fifth and sixth assignments, growing out of the court's refusal to give certain
instructions requested by the defendant, are those most strongly urged in support of a reversal.
This case was heretofore before us on the plaintiff's appeal from an order granting a
motion for involuntary dismissal under Rule 41(b) NRCP. Corn v. French, 71 Nev. 280, 289
P.2d 173, 181. We there held that, under the evidence adduced by the plaintiff, there were
issues that should have gone to the jury, and reversed the judgment and remanded the case for
trial. Appellant, under the theory that she was using the language of this court in its former
opinion, insists that she was entitled to instructions (c) that the jury must find for plaintiff if it
found that no emergency in fact existed necessitating immediate surgery and that it would
have been reasonable and proper first to take the precautionary measure of having a biopsy
performed; (d) that it must find for plaintiff if there was no emergency and no explanation
given as to why a specimen could not have been sent to an outside pathologist (there being no
pathologist at Las Vegas) or the patient referred to another city for treatment where these
services were available or why she was not at least advised that defendant intended to make a
diagnosis without biopsy or why she was not advised of Clark County's lack of such facilities
and the availability to her of these facilities in some other city that could readily be reached
by air transportation; (e) that it must find for plaintiff if it should find that there was no
resident pathologist in Clark County at the time and the standard practice there was to
forward specimen of the tissue for presurgical analysis to Los Angeles or Salt Lake City,
which procedure the defendant failed to follow; {f) that the use of proper diagnostic
methods as an aid to diagnosis in cases of tumors or growths or other indicated cases is a
matter of common knowledge and that the failure to make use thereof amounts to a
failure to use that degree of care and diligence ordinarily used by physicians of good
standing practicing in the community, in which event it must find for plaintiff; {g)
substantially as expressed above; {h) that it must find for plaintiff if it finds defendant's
conduct was improper; {i) that it must find for plaintiff if the consent to the operation as
signed did not contain the word "mastectomy"; {j) that defendant is liable in damages if
the operation is without plaintiff's consent; {k) virtually the same as {i); {1) that if the
word "mastectomy" appeared upon the consent to the operation signed by plaintiff, the
jury must determine whether plaintiff knew the meaning of the word.
74 Nev. 329, 333 (1958) Corn v. French
no resident pathologist in Clark County at the time and the standard practice there was to
forward specimen of the tissue for presurgical analysis to Los Angeles or Salt Lake City,
which procedure the defendant failed to follow; (f) that the use of proper diagnostic methods
as an aid to diagnosis in cases of tumors or growths or other indicated cases is a matter of
common knowledge and that the failure to make use thereof amounts to a failure to use that
degree of care and diligence ordinarily used by physicians of good standing practicing in the
community, in which event it must find for plaintiff; (g) substantially as expressed above; (h)
that it must find for plaintiff if it finds defendant's conduct was improper; (i) that it must find
for plaintiff if the consent to the operation as signed did not contain the word mastectomy;
(j) that defendant is liable in damages if the operation is without plaintiff's consent; (k)
virtually the same as (i); (1) that if the word mastectomy appeared upon the consent to the
operation signed by plaintiff, the jury must determine whether plaintiff knew the meaning of
the word.
This court did employ much of the language used in these requested instructions, but not
in support of compelling a verdict for the plaintiff. The language was used in support of this
court's conclusion that factual issues had been made requiring a jury determination, both as to
the consent or its withdrawal and as to whether or not there was negligence in the removal of
plaintiff's breast without pathological examination. Such was the limit of our ruling. As to the
absence of pathological examination, we said:
In the instant appeal from the judgment based upon the order granting the motion to
dismiss, we are not called upon to determine whether or not defendant, in removing plaintiff's
breast as the result of his original provisional diagnosis and without any pathological
examination, failed to use ordinary care and diligence, but rather whether the evidence
presented was sufficient to have justified a finding, or a necessary inference from the facts, to
such effect, by a jury. Corn v. French, supra.
74 Nev. 329, 334 (1958) Corn v. French
Instructions fixing defendant's liability if he operated without plaintiff's consent or after
revocation of her consent were given. Instructions fixing defendant's liability in the event of
his failure to follow standard practice in the community were covered to the extent necessary
in other instructions. Expert evidence as to there being a standard practice in the community
was all negative.
[Headnote 5]
Rule 51 NRCP provides in part: No party may assign as error the giving or the failure to
give an instruction unless he objects thereto before the jury retires to consider its verdict,
stating distinctly the matter to which he objects and the grounds of his objection. The record
shows that the grounds of appellant's objections to the refusal to give her requested
instructions were that this court had in its first opinion determined the defendant's liability in
the event of his failure to follow certain procedures. As noted above, we did not so hold.
There was no error in the court's refusal to give the requested instructions.
____________
74 Nev. 334, 334 (1958) Sullivan v. District Court
MARIE SULLIVAN, Individually, and as Executrix of the Estate of Daniel W. Sullivan,
Deceased, Petitioner, v. SECOND JUDICIAL DISTRICT COURT of the State of Nevada and
Honorable Grant L. Bowen, District Judge, Respondents.
No. 4150
November 18, 1958. 331 P.2d 602.
Petition for writ of prohibition commanding that respondents refrain from proceeding
further with a pending action.
The Supreme Court, Merrill, J., held that notwithstanding the compulsory aspect of the
Workmen's Compensation Law it still remains for employer to act in order to provide and
secure compensation and hence where employer had failed to file a payroll or pay
premiums as provided by law, such employer rejected the compensation provisions and
an action at law against employer's estate was available to injured employee.
Compensation Law it still remains for employer to act in order to provide and secure
compensation and hence where employer had failed to file a payroll or pay premiums as
provided by law, such employer rejected the compensation provisions and an action at law
against employer's estate was available to injured employee.
Writ denied.
Vargas, Dillon and Bartlett and Alexander A. Garroway, of Reno, for Petitioner.
Eli Livierato, of Reno, for Respondents.
1. Workmen's Compensation.
Notwithstanding the compulsory aspect of the Workmen's Compensation Law it still remains for
employer to act in order to provide and secure compensation, and hence where employer had failed to file a
payroll or pay premiums as provided by law, such employer rejected the compensation provisions and an
action at law against employer's estate was available to injured employee. NRS 616.285, 616.305,
616.375, 616.630.
2. Workmen's Compensation.
An employer's election to bring in domestic servants who are expressly excluded from statutory
application, within compensation act, could not by itself constitute provision for coverage of two nurses,
but independent action on their behalf must be taken in order that compensation may be provided and
secured in their behalf, and hence injured nurse could maintain common-law action against employer's
estate. NRS 616.055, 616.060, 616.315.
OPINION
Petitioner seeks a writ of prohibition commanding respondent court and judge to refrain
from proceeding further with the trial of a pending action. The action is one for personal
injuries brought against petitioner by an injured employee of petitioner's testator, Daniel W.
Sullivan.
Petitioner contends that respondents are without jurisdiction to entertain such action since
under Ch. 616 NRS the exclusive remedy available to the plaintiff in that action is through
industrial insurance.
that action is through industrial insurance. This contention was presented by petitioner to
respondent court upon motion to dismiss the action and was rejected by the court. Petition for
writ of prohibition was then filed with this court and an alternative writ was issued.
The sole question before us is whether under the provisions of Ch. 616 NRS the plaintiff
below is covered by industrial insurance. Respondents contend that, since Sullivan had failed
to file a payroll or pay premiums as provided by Ch. 616, the provisions of that chapter have
been rejected and an action at law is available to an injured employee.
Petitioner first contends that Sullivan could not have rejected the provisions of Ch. 616
since rejection is not permitted. NRS 616.285 provides that as to employers of two or more
employees the provisions of the chapter shall be conclusive, compulsory and obligatory
upon both employer and employee. The same provision is carried into NRS 616.370.
Petitioner further points to the history of this chapter. Originally the provisions of the
industrial insurance act were voluntary. If an employer was to accept the provisions of the act
it was necessary for him to notify the industrial commission in writing to this effect. Sec.
2680 NCL 1929. This requirement was eliminated by repeal of that section in 1947 and the
compulsory provision was added.
Notwithstanding this amendment NRS 616.305 today provides, Where the employer, as
provided by this chapter, has given notice of an election to accept the terms of this chapter
* * * the employer shall provide and secure * * * compensation in the manner provided by
this chapter for all personal injuries sustained arising out of and in the course of the
employment. (Emphasis supplied.) The section further provides, Failure on the part of any
employer to pay all the premiums as required by the provisions of this chapter shall operate as
a rejection of the terms of this chapter. NRS 616.400 requires the furnishing of a true and
accurate payroll and provides, Failure on the part of any such employer to comply with the
provisions of this section * * * shall operate as a rejection of this chapter
* * *."
comply with the provisions of this section * * * shall operate as a rejection of this chapter
* * *.
NRS 616.630 provides in part, If any employer within the provisions of NRS 616.285
shall fail to provide and secure compensation under the terms of this chapter, he shall be
guilty of a misdemeanor * * *. (Emphasis supplied.)
More significantly as to this proceeding NRS 616.375 provides in part, If any employer
within the provisions of NRS 616.285 fails to provide and secure compensation under this
chapter, any injured employee or his dependents may bring an action at law against such
employer for damages as if this chapter did not apply. (Emphasis supplied.)
[Headnote 1]
Notwithstanding the compulsory aspect of the chapter it still remains for the employer to
act in order to provide and secure compensation. While he has no right to reject the terms
of the act, as a practical matter he has that power. Should he fail to act, he may well suffer the
consequences provided by the chapter, but the fact remains that industrial insurance has not
been provided and an action at law against the employer is available to the employee. While
the precise nature of the necessary action on the part of the employer may not be clear from
the language of the statute, it would seem clear that at least the filing of payrolls and the
payment of premiums is contemplated. We therefore reject petitioner's first contention.
Petitioner next contends that Sullivan had accepted the act and had provided and secured
compensation.
At the time of the accident involved, Sullivan employed three domestic servants and two
nurses of whom the injured employee was one. It is alleged and admitted in the pleadings that
the nurses were employees of Sullivan and that the compulsory aspect of the chapter applied
as to them. NRS 616.055. Domestic servants are expressly excluded from that statutory
application, however. NRS 616.060 provides, in part, " 'Employee' excludes * * * any
person engaged in household domestic service * * *."
Employee' excludes * * * any person engaged in household domestic service * * *.
Under the provisions of NRS 616.315 an employer of domestic servants may voluntarily
elect to come under the provisions of the chapter as to them. This Sullivan had done as to the
three domestic servants in his employ although no action had been taken by him as to the two
nurses. Relying upon Industrial Commission v. Peck, 69 Nev. 1, 239 P.2d 244, petitioner
contends that the acceptance of the chapter by Sullivan as to his domestic servants constituted
an acceptance of the chapter as to all of his employees.
In the Peck case we held that an employer's acceptance of the industrial insurance act on
behalf of certain employees constituted an acceptance on behalf of all, whether the employees
in question had been reported to the industrial commission or not and whether premiums had
been paid on their behalf or not and regardless of the classification of the employees. We held
that the act did not contemplate that as to employees there could be a partial acceptance. We
recognized, however, that the acceptance of the act as to employees would not constitute an
acceptance as to persons expressly excluded from the act's definition of employees.
So under the Peck holding, action by an employer providing compensation for his
employees (as that term is defined by statute) but neglecting his domestic servants could
not constitute an election to bring domestic servants under the provisions of the chapter. An
express election in that respect is contemplated and independent action is necessary. Campos
v. Garden City Company, 166 Kan. 352, 201 P.2d 1017.
[Headnote 2]
The converse, then, would also be true. An election to bring in domestic servants cannot
by itself constitute provision for the coverage of employees (as defined by statute).
Independent action on behalf of the employees must be taken in order that compensation
may be provided and secured in their behalf.
We conclude that upon the record no showing has been made that the plaintiff in the
action below is covered by industrial insurance.
been made that the plaintiff in the action below is covered by industrial insurance. Petitioner
has, then, failed to establish lack of jurisdiction in these respondents to proceed with that
action.
Writ denied and proceedings dismissed.
____________
74 Nev. 339, 339 (1958) Sullivan v. McNeil
JOSEPH A. SULLIVAN, ALFRED GOTTESMAN, MILTON M. GETTINGER, ROBERT
GETTINGER, MILTON M. GETTINGER and ROBERT GETTINGER, a Copartnership,
MILTON M. GETTINGER and ROBERT GETTINGER, a Limited Partnership, Doing
Business as Milton M. Gettinger Enterprises, ROBERT GETTINGER, Executor of the Estate
of Milton M. Gettinger, Deceased, L. B. SCHERER, THE DUNES HOTEL, Inc.,
ALEXANDER BARAD, PATRICIA BARAD, BENJAMIN LASSOFF, IRENE LASSOFF,
ROBERT RICE, MARJORIE RICE, LEA SULLIVAN, BIRDIE RUTH GOTTESMAN,
CHARLES FANNING, AGNES FANNING, JASON TARSEY and BESS TARSEY,
Appellants, v. LAWRENCE G. McNEIL and BRUCE W. McNEIL, a Copartnership, Doing
Business as McNeil Construction Co., Respondents.
No. 4076
November 19, 1958. 331 P.2d 853.
Department No. 3.
Action for foreclosure of a mechanic's lien. Judgment for plaintiffs in the trial court and
the defendants appealed. The Supreme Court, Merrill, J., held that the plaintiffs' claim was
properly proven; that a stipulation permitted the trial judge to draw on his own knowledge
and experience in assessing the value of the work performed by the plaintiffs' attorney and
that there was no undue limitation of cross examination of a witness.
there was no undue limitation of cross examination of a witness.
Affirmed.
Jones, Wiener & Jones of Las Vegas, for Appellants.
John C. Mowbray, of Las Vegas; Woodburn, Forman, Wedge, Blakey and Thompson, of
Reno, for Respondents.
1. Contracts.
A contract for construction of a hotel by which the contractor would be paid the actual cost of
construction plus an agreed fee, and which contemplated changes in the specifications and provided that
the contractor should furnish an estimate of the cost or savings resulting therefrom was not construable as
meaning that each change order must be construed as an independent contract and that the actual cost of
construction provided by each change order must therefore be proved before the contractor would be
entitled to recover therefor.
2. Contracts.
In action based on a contract for construction of a hotel by which the contractor was to be paid the actual
cost of construction costs plus an agreed fee and which provided that the contractor should furnish an
estimate of the cost or savings resulting from any requested changes, recovery by plaintiff was not
improper as allowing plaintiff a fee greater than that provided by the original contract, where each change
order specified not only the new guaranteed maximum cost but an increased fee to the plaintiff in a
specified amount.
3. Stipulations.
In action to foreclose a mechanic's lien where the award of counsel fees was by determination of trial
judge, stipulation that an individual was the attorney for the plaintiffs and that in lieu of his testimony the
court could consider all records, files and pleadings in the proceeding, permitted the trial judge to draw
upon his own knowledge and experience in assessing the value of the work reflected by the record before
him.
4. Witnesses.
The trial court has general discretionary control over the extent of cross examination.
5. Witnesses.
In action on a contract, where direct examination of witness consumed portion of one day and cross
examination consumed six days, contention of undue limitation of cross examination of the witness was
without merit.
OPINION
This action is for foreclosure of a mechanic's lien. Judgment was for plaintiffs and
defendants have taken this appeal. The principal issue upon appeal is raised by defendants'
contention that there has been a failure of proof of plaintiffs' claim.
The claim is based upon a contract for construction of a resort hotel in Clark County. By
the original contract it was agreed that the plaintiffs, as contractor, would be paid the actual
cost of construction plus an agreed fee. It was further agreed that the cost of construction
would not exceed $1,592,972 and that all costs in excess of such amount would be borne by
the contractor.
The contract contemplated that changes in plans and specifications might be desired by the
owner as the work proceeded. It was provided that the contractor should furnish an estimate
of the cost or savings resulting from any such requested change, after which a change order
would be issued by the owner in which the corrected amount of the guaranteed maximum
cost would be set forth. Under this provision 23 change orders were issued. Each specified
the new guaranteed maximum cost. The maximum cost as finally fixed was in the sum of
$2,530,440.99.
Upon trial the plaintiffs made proof of the cost of construction, of the fees to which they
were entitled under the contract provisions, and of the sums remaining unpaid. Upon this
proof the court sitting without jury awarded judgment to the plaintiffs for $86,634.41.
[Headnote 1]
The defendants' contention of failure of proof is based upon the fact that plaintiffs, under
cross examination, were unable to state how much of the ultimate cost was attributable to
construction provided by the original contract and how much to that provided by the
individual change orders. Plaintiffs testified that their records were not set up to provide this
information; that considerable additional expense would have been involved in so setting
them up; that such information would serve no useful purpose; that for these reasons it
was not their business practice to set their records up in such fashion.
were not set up to provide this information; that considerable additional expense would have
been involved in so setting them up; that such information would serve no useful purpose;
that for these reasons it was not their business practice to set their records up in such fashion.
The issue before us is whether, under the contract as modified by the change orders, such
information is necessary to a determination of the rights of the parties.
Defendants contend that each change order must be construed as an independent contract
and that the actual cost of the construction provided by each change order must therefore be
proved. If a saving (below estimate) resulted on any specific change, they contend, they are
entitled to credit for it regardless of the overall cost.
From an examination of the contract and the change orders we conclude that this is not a
proper construction of those instruments. Had this been the intent of the parties there would
have been no significance to the overall guaranteed maximum cost and no reason for
requiring that it be calculated after each change or for stating it in each change order. It was
clearly the overall cost with which the parties were concerned as the significant figure upon
which their rights and obligations were to be determined.
Accordingly we find no merit in defendants' contention of failure of proof.
[Headnote 2]
Defendants contend that the court erred in allowing plaintiffs a fee greater than that
provided by the original contract. Each change order specified not only the new guaranteed
maximum cost, but an increased fee to plaintiffs in a specified amount. Accordingly we find
no merit in this contention.
Defendants contend that the court erred in allowing plaintiffs an additional fee in
consideration of the savings in construction costs below the guaranteed maximum. The
contract provided for such fee. It was agreed that the contractor should receive an additional
fee equal to 25 percent of such savings. Defendants contend, however, that this provision
should apply only to the original maximum cost and not to the modified maximum cost as
specified in each change order.
original maximum cost and not to the modified maximum cost as specified in each change
order. We do not regard this as a reasonable construction and, accordingly, find no merit in
this contention.
Defendants contend that the court erred in awarding plaintiffs judgment for counsel fees
for the reason that there was a failure of proof. No testimony was presented as to the extent of
legal services provided, time spent, or value.
It was stipulated, however, that John C. Mowbray was and is the attorney for the
plaintiffs herein; that in lieu of the testimony of John C. Mowbray pertaining to his services
as counsel for plaintiffs, the court may consider all the records, files and pleadings in this
proceeding.
[Headnote 3]
Since the award of counsel fees was by determination of the judge rather than a jury this
stipulation permitted the judge to draw upon his knowledge and experience in assessing the
value of the work reflected by the record before him and by the trial he had just concluded.
The stipulation thus in effect supplied all proof necessary.
Defendants contend that the court erred in limiting their cross examination of one of the
plaintiffs. A direct examination of this witness consumed a portion of one day. In the course
of this examination he testified generally to full compliance by plaintiffs with the terms of the
contract, a matter not in issue. The cross examination of this witness consumed some six
days. The subject upon which cross examination was ultimately limited was the manner of
plaintiffs' compliance with the terms of the contract. Defendants assert that although this was
not in issue, the subject was available to them upon cross examination for purposes of
impeachment.
[Headnotes 4, 5]
The trial court has general discretionary control over the extent of cross examination. State
v. Stone, 226 N.C. 97, 36 S.E.2d 704; Fahey v. Clark, 125 Conn. 44, 3 A.2d 313, 120 A.L.R.
517.
313, 120 A.L.R. 517. See also, United States v. Coplon, 185 F.2d 629 (2d Cir. 1950), 28
A.L.R.2d 1041; United States v. Stoehr, 100 F.Supp. 143 (M.D. Penn. 1951). Considering the
length of the cross examination in this case, we conclude that no abuse of discretion has been
shown.
Affirmed.
____________
74 Nev. 344, 344 (1958) Zimmerman v. District Court
H. A. ZIMMERMAN, Petitioner, v. FIRST JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA and Honorable RICHARD R. HANNA, District Judge, Respondents.
No. 4118
December 3, 1958. 332 P.2d 654.
The first coowner of automobile, who was a resident of Montana, brought original
prohibition proceeding in the Supreme Court against the First Judicial District Court of the
State of Nevada and the Honorable Richard R. Hanna, District Judge, to restrain the District
Court from proceeding with the trial of an action against the first coowner of the automobile.
The Supreme Court, Badt, C. J., held that since ownership of automobile by first coowner,
who was a resident of Montana, did not, per se, give him right to prevent second coowner
from making automobile trip to Nevada, it could not be presumed that second coowner was
operating the automobile at time of accident in Nevada as agent of the first coowner, and that
therefore Nevada statute providing that use and operation of motor vehicle over public roads,
streets, or highways in Nevada by any person, either as principal, master, agent, or servant,
shall be deemed appointment by such operator, on behalf of himself and his principal or
master, of Director of Department of Motor Vehicles to be his true and lawful attorney, on
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, was not applicable to
first coowner, who was a resident of Montana.
any action or proceeding against him growing out of such use or resulting in damage or loss
to person or property, was not applicable to first coowner, who was a resident of Montana.
Writ issued.
Vargas, Dillon & Bartlett and Alexander A. Garroway, all of Reno, for Petitioner.
Laxalt, Ross & Laxalt, of Carson City, for Respondents.
1. Automobiles.
Where nonresident owner of automobile is not the operator of the automobile at time automobile is
involved in accident in Nevada, agency relationship must be shown to exist between owner and operator of
automobile if Nevada statute providing that use and operation of motor vehicle over public roads, streets,
or highways in Nevada by any person, either as principal, master, agent, or servant, shall be deemed
appointment of such operator, on behalf of himself and his principal or master, of Director of Department
of Motor Vehicles to be his true and lawful attorney, on 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, is to be applicable against owner. NRS 14.070(1).
2. Automobiles.
Since coownership of automobile by first coowner, who was a resident of Montana, did not, per se, give
him right to prevent second coowner from making automobile trip to Nevada, it could not be presumed that
second coowner was operating the automobile at time of accident in Nevada as agent of the first coowner,
and therefore Nevada statute providing that use and operation of motor vehicle over public roads, streets,
or highways in Nevada by person, either by principal, master, agent, or servant, shall be deemed
appointment by such operator, on behalf of himself and his principal or master, of Director of Department
of Motor Vehicles to be his true and lawful attorney, on whom may be served all legal process in any
action or proceeding against him growing out of such use or resulting in damage or in loss to person or
property, was not applicable to first coowner, who was a resident of Montana. NRS 14.070(1).
OPINION
This is an original petition for a writ of prohibition to restrain the respondent court from
proceeding with the trial of a case in which Peggy Thies, administratrix of the estate of
Willis B. Adkison, Jr., was plaintiff and the estate of Robert W.
trial of a case in which Peggy Thies, administratrix of the estate of Willis B. Adkison, Jr., was
plaintiff and the estate of Robert W. Zimmerman, deceased, H. A. Zimmerman and the estate
of Bertie A. Moore, deceased, were defendants. The action was one for damages growing out
of the operation of a car, of which H. A. Zimmerman and Robert W. Zimmerman were the
registered coowners. H. A. Zimmerman was a resident of Montana and the car was being
driven on the highways of the State of Nevada (as alleged in plaintiff's complaint in the
district court) by Robert W. Zimmerman, coowner having control of the motor vehicle. At
the time of the accident the car was being driven by Bertie A. Moore. The accident, alleged to
be the result of the wrongful and negligent acts of the defendants and the intoxication of
Robert W. Zimmerman, culminated in the death of Robert W. Zimmerman, Bertie A. Moore
and Adkison, the death of one of Adkison's passengers and grievous injuries to two other
passengers of Adkison's car. The complaint alleged that defendant H. A. Zimmerman had
cause to believe that the said motor vehicle, of which he was a co-owner, would be operated
wrongfully, negligently and with gross negligence, and the said defendant consented to the
operation of said motor vehicle. The complaint does not allege either positively or on
information and belief that Robert W. Zimmerman or Bertie A. Moore was the agent of H. A.
Zimmerman.
Service of summons upon H. A. Zimmerman was made personally in Montana and by
service upon the acting director of the department of motor vehicles of Nevada. H. A.
Zimmerman appeared specially on a motion to quash service, the motion was denied and the
case set for trial, whereupon this writ was sought.
Section 14.070(1) NRS reads as follows: 1. 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."
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.
[Headnote 1]
If this section is to apply in a case where the owner himself is not the operator of the car, it
is apparent that ownership alone is not sufficient, but that an agency relation must be shown
to exist between the owner and the operator. Respondents rely upon the line of cases cited in
the annotation appearing at 96 A.L.R. 634 to the effect that ownership of a motor vehicle by
one person and its actual use by another gives rise to the presumption that such agency
relation exists. They assert that if this be so it likewise exists between an absent coowner and
a driving coowner who at the time (as alleged in the complaint) [had] control of the motor
vehicle * * * the instrument causing the said death of plaintiff's decedent * * *. No
authorities are offered in support of this contention. Nor do the respondents present
authorities to the contrary, except the general propositions growing out of coownership to the
effect that a cotenant in possession may maintain that possession as against his coowner, and
that no agency relationship exists between cotenants. See 14 Am.Jur. 93, Cotenancy, sec. 23.
H. A. Zimmerman's coownership did not, per se, give him the right to prevent Robert W.
Zimmerman from making the trip in question.
There is no logical reason for asserting that the mere possibility of the existence of a
principal and agent relationship superimposed on the coownership should create a
presumption that it exists. In innumerable cases the possibility could exist that A's tortious act
was committed by A as the agent of B.
[Headnote 2]
Despite numerous cases to the contrary, we concede that in most jurisdictions in this
country, where the owner-driver situation exists, a principal-agent relationship (and therefore
an owner liability) is presumed. But whether this be a fact inference, or a policy
presumption, or an administrative presumption, or one arising out of expediency {the
cases are replete with abstract and academic discussions of its nature) its basis is the
inference {or the presumption, if one prefers) that an owner is likely to be in control of his
own property.
whether this be a fact inference, or a policy presumption, or an administrative presumption, or
one arising out of expediency (the cases are replete with abstract and academic discussions of
its nature) its basis is the inference (or the presumption, if one prefers) that an owner is likely
to be in control of his own property. When the facts, as here alleged by the plaintiff himself,
show the contrary to be the case the presumption cannot be indulged.
There was therefore no such operation by H. A. Zimmerman of the motor vehicle in
question over the highways of this state as could be deemed an appointment of the director of
the department of motor vehicles as his attorney for service of process. Under the service as
made, the district court acquired no jurisdiction over his person. Let the writ of prohibition
issue.
____________
74 Nev. 348, 348 (1958) Covrig v. Powers
JOHN COVRIG, Appellant, v.
MARIE POWERS, Respondent.
No. 4051
December 3, 1958. 332 P.2d 650.
Appeal from special orders of the Eighth Judicial District Court, Clark County; Frank
McNamee, Judge, Department No. 1, made after final judgment.
Action by judgment creditor against judgment debtor's surety who joined in execution of
bond for release of judgment debtor's attached property and for prevention of further levy on
the writ of attachment, to recover remainder of judgment debt after partial satisfaction of
judgment debt by execution sale of judgment debtor's automobile. The trial court entered
judgment for judgment creditor against surety, and surety appealed. The Supreme Court,
Badt, C. J., held that surety would not be heard to inquire whether the attachment was regular
and, therefore, would not be heard to contend that irregularity of the levy destroyed
consideration for the execution of the bond.
and, therefore, would not be heard to contend that irregularity of the levy destroyed
consideration for the execution of the bond.
Orders affirmed.
Bonner & Rittenhouse, of Las Vegas, for Appellant.
Toy R. Gregory, of Las Vegas, for Respondent.
1. Estoppel.
Generally, a surety on a bond for release of an attachment may not question the recitals in the bond. Rule
60, NRCP; NRS 31.040, 31.180 to 31.220.
2. Attachment.
Bond which was for release of attached automobile and for prevention of further levy on writ of
attachment and which had been given after writ of attachment had been delivered to sheriff with
instructions to levy, was one executed under statute requiring sheriff to attach a defendant's nonexempt
property unless defendant gives security by way of bond, rather than a bond given in a proceeding for
discharge of attachment. NRS 31.040, 31.180 to 31.220.
3. Attachment.
Bond which had been executed to obtain release of attached automobile and to secure defendant against
further levies upon writ of attachment was, in any event, a valid common-law bond, and there was
sufficient consideration therefor arising from sheriff's desisting from further levy on the automobile or
other property despite alleged failure of sheriff to take the attached automobile into possession.
4. Attachment.
Surety on bond for release of attached property and for prevention of further levy of writ of attachment
would not be heard to inquire whether the attachment had been regular and, therefore, would not be heard
to contend that irregularity of the levy had destroyed consideration for execution of the bond. NRS
31.040, 31.180 to 31.220.
5. Judgment.
Where judgment provided that upon delivery forthwith of certain corporate stock, stated amount was to
be credited upon the judgment, tender of the stock 46 days after entry of judgment and 25 days after
issuance of execution did not constitute a compliance with the provision which would have entitled the
judgment debtor to the credit.
OPINION
Judgment in the lower court was entered in favor of respondent against appellant on
appellant's bond for release of attachment in an action filed by respondent against Ruth J.
release of attachment in an action filed by respondent against Ruth J. Rains. Execution was
issued upon such judgment against the property of appellant. Thereafter appellant moved to
quash the writ upon the ground that the judgment had been satisfied, and the following month
moved, under Rule 60 NRCP, for an order for the relief of respondent from the judgment
upon the ground that there was no consideration for the execution of the undertaking for
release of attachment; and that it is void in that its terms and conditions are not in accordance
with statute.
The complaint in the original action of Powers v. Rains alleged that Powers had paid Rains
$3,000 for the purchase of certain corporate stock, which Rains had thereafter failed and
refused to deliver. Judgment was entered in such action in favor of plaintiff for $4,687.50
with interest and costs. The judgment further provided that, upon the delivery forthwith of the
stock referred to, $3,000 be credited upon the judgment. In such original action a writ of
attachment was issued and delivered to the sheriff with instructions to levy upon a certain
Cadillac automobile. Thereupon Rains, as principal, and appellant and another as sureties
executed an instrument entitled Undertaking for Return of Property to Defendants, reciting
the condition thereof as follows: The condition of this bond is such that whereas the sheriff
has levied writ of attachment on a 1956 Cadillac belonging to defendants * * * and whereas
defendants require the return of the 1956 Cadillac so attached and request that further
attachments in the premises cease and discontinue said attachment proceedings in accordance
with the statute made and provided, now therefore, * * *.
The judgment against Rains was partly satisfied by the execution sale of the Cadillac, and
Powers thereupon commenced the action for recovery of the remainder upon Covrig's bond.
The complaint alleged the issuance of the writ of attachment in the first action, the execution
and delivery of the undertaking to procure a return of the property so attached to said
defendants and to prevent further attachments in said action, and that upon the delivery of
such undertaking "the said attachment was discharged and the property was released."
upon the delivery of such undertaking the said attachment was discharged and the property
was released. These allegations were not denied. Thereafter judgment was entered in favor
of Powers against Covrig for $3,819.96, which was the balance remaining due after crediting
proceeds of execution sale of the Cadillac. In the action against Covrig on the bond, and
particularly in the proceedings under the motion for relief from the judgment and to quash the
execution, the court found and concluded that the tender of the stock was ineffectual for the
reason that such tender was not made forthwith' as required by the judgment entered in
favor of Powers against Rains, and for the further reason that at the time of said tender a writ
of execution in subject action had been issued to and was in the hands of the sheriff. As
noted, the motion to quash the execution and the motion for relief from the judgment under
Rule 60 NRCP were both ordered denied and the present appeal is from such orders.
In addition to assigning as error the denial of the said motions, appellant assigns as error
rulings of the court in sustaining objections to Covrig's offer of evidence to the effect that in
the asserted levy of attachment against the Cadillac in the action of Powers v. Rains the
sheriff had never taken the automobile into his possession. As noted, no appeal was taken
from the judgment in Powers v. Rains nor from the judgment in Powers v. Covrig, and no
denial had been made of the allegations of the complaint alleging the levy and alleging the
release of the car in consideration of the execution of the bond. Despite these facts we pass
without consideration or determination the propriety of proceedings for relief from the
judgment under the provisions of Rule 60 NRCP, and turn to the question most seriously
presented in the briefs, namely, the contention of appellant that the bond for release of
attachment was invalid because no valid attachment was pending and therefore was executed
without consideration, and that it was entirely void in that the terms and conditions of same
are not in accordance with Nevada statutes; that the procedure required by the statutes was
not complied with."
procedure required by the statutes was not complied with.
Appellant first refers to the sheriff's return of attachment in the first action in which he
certifies that I received the annexed writ of attachment on the 14th day of September, 1956;
that I levied a copy of said writ upon the following described automobile by serving said writ
upon Ruth J. Rains on the 18th day of September, 1956: * * *.
Appellant's contention as to the invalidity of the bond derives from his insistence that a
bond for release of the attachment depends for its validity upon the provisions of NRS 31.180
providing that the defendant, after appearance, may apply to the court on notice for a
discharge of the attachment upon the execution and filing of an undertakingthe amount of
such undertaking, under NRS 31.190, varying with the condition as to whether the attached
property sought to be released shall equal or exceed the amount claimed by plaintiff or
whether it is less than the amount claimed by plaintiff. Appellant also refers to NRS 31.200
under which application may be made to the court for a discharge of the attachment on the
ground (a) that it was improperly issued, (b) that the property levied upon is exempt from
execution or (c) that the levy is excessive.
Respondent insists that the situation is not governed by those sections but is governed by
the provisions of NRS 31.040 which provides that the writ of attachment require the sheriff to
attach and keep the property of the defendant not exempt from execution, or so much as may
be sufficient to satisfy plaintiff's demand unless the defendant give him security by the
undertaking at least of two sufficient sureties in an amount sufficient to satisfy such demand,
besides costs, * * * in which case to take such undertaking.
[Headnote 1]
The undertaking hereinabove quoted in part is unskillfully and inartistically drawn, but it
is clear enough that it was executed both to secure the release of the automobile and to secure
the defendant against further levies.
Appellant, in asserting that there had been no levy of the writ upon the car and therefore no
consideration for the undertaking for its release, frankly concedes the general rule that a
surety on such bond may not question the recitals in the bond. He insists, however, that there
are several well recognized exceptions to such general rule; that where there is no statutory
jurisdiction to accept the bond it is absolutely void; that such is the case here.
[Headnotes 2, 3]
We find it unnecessary to go through the ramifications of appellant's argument in this
regard dealing, as it does, entirely with the requirements of NRS secs. 31.180 to 31.220, as
the bond must be treated as one executed under the provisions of sec. 31.040. Nor do we
deem it necessary to deal at length with the asserted failure of consideration on the ground
that under the return it appeared that the sheriff had not taken the automobile into his
possession. Certainly the bond against further levies of the writ furnished a valid
consideration and was in any event a valid common law bond in consideration of which the
sheriff not only desisted from further levy of the writ on other property but from a further levy
against the car itself.
In Lightle v. Berning, 15 Nev. 389, the bond read simply, We, the undersigned, agree to
pay to P. H. Roan, sheriff of said county, * * * $582.62 to satisfy any judgment not exceeding
that amount, in the case now pending of Peter Lightle v. C. E. Smith. Defense against the
action relied as here on lack of consideration for the bond and the contention that it was not a
statutory undertaking. The court said: The paper sued on is not a statutory undertaking for
the release of attached property, but it is a valid common law obligation for the payment of
money. A bond taken by the sheriff is not void for want of conformity to the requirements of
the statute, which, while prescribing one form of action, does not prohibit others; and a bond
given voluntarily upon the delivery of property, is valid at common law.' (Citing authorities.)
To like effect are Woodward v. Bingham, 25 Okl.
Bingham, 25 Okl. 400, 106 P. 843; National Surety Co. v. Morand, 92 Okl. 60, 217 P. 870;
and Bailey v. Aetna Indemnity Co., 5 Cal.App. 740, 91 P. 416.
[Headnote 4]
With reference to appellant's contention that the irregularity of the levy destroyed the
consideration for the execution of the bond, we think the case is controlled by Bowers v.
Beck, 2 Nev. 139 (republication 1-2 Nev. 658) in which this court refused to follow a
contrary rule expressed in some of the cases, and said: * * * the true rule is, that when such a
bond as the one under consideration is given, you cannot go back to inquire as to whether the
attachment was regular or irregular. The only questions are, was the property released, and
has a breach of the bond been shown. The court further said: There was no condition in the
bond that they would pay provided the attachment was held good and a judgment rendered,
but simply on condition that the judgment was rendered.
Citing Bowers v. Beck, supra, the Supreme Court of Montana in Dackich v. Barich, 37
Mont. 490, 97 P. 931, 935, said: The proposition contended for by the respondent is that,
having recited in their undertaking that a levy was made, and having thus induced the plaintiff
to approve and accept that undertaking, defendants cannot now be heard to say for the first
time that no levy was made. We think this position is well taken. Parrott v. Kane, 14 Mont.
23, 35 P. 243; Johnston v. Oliver, 51 Ohio St. 6, 36 N.E. 458; Pierce v. Whiting, 63 Cal. 538;
Bowers v. Beck, 2 Nev. 139. See also Anno. 89 A.L.R. 266.
Appellant insists, however, that the later Nevada case of Laveaga v. Wise, 13 Nev. 296,
either overrules or presents an exception to the rule stated in Bowers v. Beck. An analysis of
the Laveaga case, however, shows that it accepts as law the test stated in Bowers v. Beck and
enlarges the language of that test to include a situation where the sureties execute a bond to
prevent a levy. In such case the liability does not attach if the property has already been levied
upon at the time of the execution of the bond.
of the bond. Under the facts of the case the court properly held against liability of the sureties,
who had bound themselves to prevent a levy, and not for the release of property already
levied upon, of which situation they had no knowledge. The bond in the instant case was both
for the release of attached property and for the prevention of a further levy.
[Headnote 5]
With reference to appellant's contention that the court erred in refusing to credit against the
judgment the sum of $3,000 for the stock tendered to respondent's attorney, we are disposed
to accept as reasonable the court's construction of the language used in the judgment, to wit,
that the tender of the stock some 46 days after the entry of the judgment and 25 days after the
issuance of execution was not a compliance with the court's order that it be delivered
forthwith in order to entitle the judgment debtor to the credit.
Other points discussed by appellant are not considered pertinent to a determination of the
appeal. Judgment affirmed with costs.
____________
74 Nev. 355, 355 (1958) Woodburn v. Pesi
WILLIAM WOODBURN, Executor of the Estate of George B. Thatcher, Also Known as
Geo. B. Thatcher, Deceased, and GEORGE KERR, Appellants, v. LILLIE A. PESI and
ADALINE HANSEN, Respondents.
No. 3965
December 8, 1958. 332 P.2d 999.
Appeal from the Third Judicial District Court, Lander County; Frank B. Gregory,
Presiding Judge.
Action to quiet title to placer mining claims brought against original locators of claims.
The trial court entered decree in favor of plaintiffs and original locators appealed. The
Supreme Court, Eather, J., held that testimony showing that one of the plaintiffs had
worked eight days and another had worked seven days was sufficient to sustain finding
that plaintiffs had performed not less than $20 worth of labor upon each of the claims for
the development thereof.
testimony showing that one of the plaintiffs had worked eight days and another had worked
seven days was sufficient to sustain finding that plaintiffs had performed not less than $20
worth of labor upon each of the claims for the development thereof.
Judgment affirmed.
John S. Belford, of Reno, for Appellants.
Grant Sawyer, of Elko, for Respondents.
In action to quiet title to placer mining claims against original locators thereof, testimony showing that
one of the plaintiffs had worked eight days and another had worked seven days in making excavations on
each of the claims, was sufficient to sustain finding that plaintiffs had performed not less than $20 worth of
labor upon each of the claims for the development thereof. NRS 517.100.
2. Evidence.
It is a matter of common knowledge that even the lowest class of mine labor in state is worth in excess of
$6.66 per day.
Courts are not disposed to substitute their own retrospective judgments for the prospective judgments of
locators of mining claims with respect to whether work done on claim tended toward development thereof,
particularly where there is no suggestion that location work as described was not performed in good faith
for the purpose of such development and in anticipation that it would result in such development. NRS
517.100.
OPINION
Appellants were original locators of five placer mining claims in Copper Canyon Mining
District, Lander County. Respondents, contending that appellants failed to perform annual
assessment work upon the claims, relocated the same and brought the action below to quiet
title thereto. A decree in their favor was obtained.
Appellants have appealed upon the ground that there is no proof that respondents, in
locating the claims, had performed not less than $20 worth of labor upon [each of] the
claim[s] for the development thereof."
of] the claim[s] for the development thereof. NRS 517.100.
[Headnote 1]
(1) There is no direct evidence that the value of the location work performed on the five
claims was not less than $100. There was testimony that one Pesi worked eight days and that
one Coulter worked seven days, and that they made an excavation eight feet square and four
feet deep on each of the claims. To sustain the statutory requirement, that labor must have
been worth at least $6.66 a day for the 15 days. While, generally, judicial notice may not be
taken of the value of labor performed, there are extremes to which the rule may not extend.
[Headnote 2]
It is a matter of common knowledge that even the lowest class of mine labor in this state is
worth in excess of $6.66 per day. Direct testimony to such effect was not necessary to support
the court's judgment. Hopkins v. Paradise Heights Fruit Growers' Assn., 58 Mont. 404, 193 P.
389; Perata v. Oakland Scavenger Co., 111 Cal. App.2d 378, 244 P.2d 940; Nylund v.
Madsen, 94 Cal. App. 441, 271 P. 374. The conclusion is reinforced by official reports to the
governor filed by the state labor commissioner pursuant to NRS 607.080.
[Headnote 3]
(2) There is no testimony to the effect that the work done tended towards the development
of the claims. Courts, however, are not disposed to substitute their own retrospective
judgments for the prospective judgments of the locators in such respect, Love v. Mt. Oddie
United Mines Co., 43 Nev. 61, 181 P. 133, 43 Nev. 66, 184 P. 921, particularly where there is
no suggestion that the location work as described was not performed in good faith for the
purpose of such development, and in anticipation that it would result in such development.
____________
74 Nev. 358, 358 (1958) Dixon v. Simpson
PETER DIXON, Appellant, v. ALBERT SIMPSON; J. R. WILLIAMS, THOMAS E.
PHELPS and SHELLEY C. CAMP, Doing Business as Williams Trenching & Excavating
Company, Respondents.
No. 4088
December 8, 1958. 332 P.2d 656.
Department No. 1.
Action by pedestrian who fell into excavation in public alley against owner of adjacent
property for whose benefit excavation was dug, general contractor engaged in construction of
building on adjacent property and subcontractor who originally did the digging. The trial
court dismissed action against owner and subcontractor and rendered judgment against
general contractor and pedestrian appealed. The Supreme Court, Merrill, J., held that owner
was liable under rule of respondeat superior but subcontractor, who surrendered control of
excavation to general contractor, was not liable.
Judgment in favor of respondent Simpson reversed and remanded for new trial.
Judgment in favor of remaining respondents affirmed.
(Rehearing denied January 7, 1959.)
Samuel S. Lionel and Paul L. Larsen, of Las Vegas, for Appellant.
Goldwater and Singleton, of Las Vegas, for Respondents J. R. Williams, Thomas E.
Phelps and Shelley C. Camp, dba Williams Trenching & Excavating Company.
Morse, Graves & Compton, of Las Vegas, for Respondent Albert Simpson.
Where owner engaged independent contractor for construction of building and contractor employed
subcontractor to dig excavation in alley adjacent to property, owner was liable under rule of respondeat
superior to pedestrian who fell into excavation which was not guarded. NRS 455.010.
2. Master and Servant.
Duty to guard excavation dug by independent contractor does not arise from performance of
work but from authority over and control of work.
does not arise from performance of work but from authority over and control of work. NRS 455.010.
Where trenching company, which dug excavation in alley, surrendered control after performance of its
work, general contractor assumed control and trenching company had no further authority over work or
right to remain or to return upon premises, trenching company had no duty to guard excavation and it was
not liable for injuries sustained by pedestrian who fell into excavation which was not guarded. NRS
455.010.
4. Negligence.
Statute imposing liability upon all those who dig, sink or excavate any hole applies only to those who
maintain control of excavation or who, having control, abandon it, and does not impose liability upon those
who surrender control to others. NRS 455.010.
OPINION
We are on this appeal concerned with responsibility for failure to guard an excavation in a
public alley. Where the excavation is under the control of a general contractor engaged in the
construction of a building on adjacent property, is the owner of that property responsible?
Under these circumstances is the subcontractor who originally did the digging responsible?
We have concluded that under the facts of this case the owner is responsible, but the
subcontractor is not.
This action was brought to recover damages suffered by the plaintiff in falling into a
trench cut across an alley in Las Vegas. The trench was dug for the purpose of making sewer
connections with a building under construction on an adjoining lot. The accident occurred at
night. The alley was unlighted and the trench was neither barricaded nor lighted by flares.
Action was brought against the owner of the adjacent property, the general contractor, and
the trenching company which had, with its equipment, done the major portion of the
excavating. The court below dismissed the action against the owner and the trenching
company. Judgment ultimately was rendered against the general contractor.
The plaintiff has taken this appeal from the order of the trial court dismissing the action
against the owner and the trenching company. The sole question is whether under the facts of
this case those respondents can be held to have shared liability with the general contractor.
As to both respondents we are concerned with statutory as well as common law liability.
NRS 455.010 provides, Any person * * * who shall dig, sink or excavate, or cause the same
to be done, or being the owner or owners, or in the possession under any lease or contract, of
any shaft, excavation or hole, whether used for mining or otherwise, * * * within this state,
shall, during the time they may be employed in digging, sinking or excavating, or after they
may have ceased work upon or abandoned the same, erect, or cause to be erected, good and
substantial fences or other safeguards, and keep the same in good repair, around such works
or shafts, sufficient to guard securely against danger to persons and animals from falling into
such shafts or excavations.
The owner-respondent Simpson supports the order of the trial court as to him by
contending that, since the neglect was on the part of an independent contractor, such neglect
cannot be attributed to him as owner under the doctrine of respondeat superior.
Anderson v. Feutsch, 31 Nev. 501, 103 P. 1013, 105 P. 99 is, however, controlling upon
this contention. This court held in that case that an owner is responsible for seeing that an
excavation made for his benefit upon a public street is adequately safeguarded. Further, it was
specifically held that the owner's liability either at common law or under the statute is not
affected by the fact that the excavation was dug by an independent contractor.
The principle of owner liability as applied to cases of excavations in public streets is
explained in Robbins v. Hercules Gasoline Co., 80 Cal.App. 271, 251 P. 697, 698, where it
was stated, Generally speaking, the rule [of respondeat superior] does not apply where injury
results from the negligent acts of an independent contractor, but it is a well-known exception
to this rule that where the owner of property knowingly causes excavations to be made in
* * * the public street or sidewalk fronting his property, he owes a duty to the public to
maintain sufficient warning signals thereon and cannot pass this duty on to another."
but it is a well-known exception to this rule that where the owner of property knowingly
causes excavations to be made in * * * the public street or sidewalk fronting his property, he
owes a duty to the public to maintain sufficient warning signals thereon and cannot pass this
duty on to another.
[Headnote 1]
It was, then, error to dismiss the action against respondent Simpson, the owner of the
adjoining premises, for whose benefit the trench had been dug. As to this respondent the
judgment of the trial court must be reversed.
As to respondent trenching company the record shows that its work had been completed
prior to noon on the date of the accident. Its workmen and equipment were then removed
from the site. The general contractor that afternoon put some of his own workmen into the
trench to finish it in readiness for the plumbers and to extend its length slightly. At the close
of the working day this finishing work was still going forward.
Appellant contends that the trenching company was under duty to barricade the trench
which it had dug and to light it with flares. Appellant asserts that the work of the trenching
company resulted in a condition inherently dangerous and one from which harm should have
been anticipated. Under these circumstances, he contends, a contractor does not rid himself of
responsibility by turning the completed work over to the contractee who accepts it as
completed. The question of foreseeability, he contends, therefore remained for the jury.
Under the older rule applying generally to the case of an independent contractor, such
contractor was not liable for injury resulting from his work after he had completed his
contract and there had been an acceptance of his work by the contractee. Under the newer
rule, for which appellant contends, where the result of the contractor's work is such that harm
to third parties is foreseeable, his liability is not terminated by the acceptance of his work by
the contractee.
The authorities upon which appellant relies constitute an extension of the principle first
enunciated in MacPherson v. Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050, L.R.A.
1916 F. 696. See Anno. 58 A.L.R.2d 870.
These cases are distinguishable from the instant case and the rule they announce cannot be
held to apply here. They are cases in which the contractor's work was imperfectly performed.
The danger from which injury was foreseeable arose from defective performance. The duty of
proper performance was clearly owing. It was breach of that duty which resulted in injury.
[Headnotes 2, 3]
Such is not the case before us. Here the danger did not arise from defective performance
but from the fact that the work, properly completed, was of such a nature as to constitute a
hazard if not guarded. The duty with which we are concerned is not that of proper
performance, but the duty to guard. That duty does not arise from performance of the work,
but from authority over and control of the work. The trenching company having surrendered
control and the general contractor having assumed it, the trenching company having no
further authority over the work or right to remain or to return upon the premises, no duty to
guard can be imposed upon that company.
[Headnote 4]
Appellant contends that regardless of common law liability, NRS 455.010 imposes
liability upon all those who dig, sink or excavate * * * any hole. That statute must be
construed to apply only to those who retain control of the excavation or, having control,
abandon it. To construe it otherwise would be to impose a continuing responsibility upon
persons who may well have lost all right, authority or power to meet such responsibility. Such
cannot have been the legislative intent.
Judgment in favor of respondents J. R. Williams, Thomas E. Phelps and Shelley C. Camp
dba The Williams Trenching and Excavating Company, affirmed.
Judgment in favor of respondent Albert Simpson reversed and that cause remanded for
new trial.
____________
74 Nev. 363, 363 (1958) Murdock v. Petersen
MARION MURDOCK, Appellant, v. JAMES PETERSEN and
EDNA PETERSEN, Respondents.
No. 4086
December 11, 1958. 332 P.2d 649.
Department No. 3.
Action for injuries sustained in fall down flight of steps by plaintiff who had at defendant's
request responded to defendant's call for help and who was performing needed services for
defendant, who was incapacitated, without demanding compensation. From adverse judgment
of the trial court the plaintiff appealed. The Supreme Court, Merrill, J., held that instruction
that plaintiff was a licensee and that defendant was under no duty to plaintiff as a licensee to
correct defect causing fall down stairs, was erroneous.
Nada Novakovich, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey & Thompson, of Reno, for Respondents.
1. Negligence.
One gratuitously performing services for a homeowner at the owner's request and present in the home for
that purpose is an invitee of the owner and not a mere licensee.
2. Negligence.
In action for injuries sustained in fall down flight of steps by plaintiff who had at defendant's request
responded to defendant's call for help and who was performing needed services for defendant, who was
incapacitated, without demanding compensation, instruction that plaintiff was a licensee and that
defendant was under no duty to plaintiff as a licensee to correct the defect causing
fall down stairs, was erroneous.
that defendant was under no duty to plaintiff as a licensee to correct the defect causing fall down stairs, was
erroneous.
3. Master and Servant.
A servant rendering services gratuitously upon request of another is as much justified in expecting a safe
place to work as a servant for hire.
OPINION
[Headnote 1]
On this appeal we are concerned with the question whether one gratuitously performing
services for a home owner at the owner's request and present in the home for that purpose, is
an invitee of the owner or a mere licensee. We have concluded that under the facts of this
case the visitor was an invitee.
[Headnote 2]
This appeal is taken by the plaintiff below from judgment rendered in favor of defendant
pursuant to jury verdict. Several assignments of error are made. We shall confine our
consideration to one which we have concluded requires reversal. This error was in instructing
the jury that plaintiff was a licensee and in applying to the case the standard of care owing to
licensees by the owner of the premises.
The following instruction was given: When the licensee's presence on the premises is
known to the licensor, the licensor is bound to exercise ordinary care to avoid injuring the
licensee; except, however, that the owner of premises is under no duty to a licensee to alter or
repair the premises as they existed when the licensee entered. As to all conditions of such
premises then existent, a licensee assumes the risks incident thereto.
Defendant was injured in an explosion occurring in Reno on February 5, 1957 and was
confined to her bed as a result. She called plaintiff, a friend and neighbor, requesting plaintiff
to come to defendant's home to help with the house work and in caring for her. For a period
of some days thereafter plaintiff assisted defendant at the latter's home.
the latter's home. On February 9 at the defendant's home plaintiff was preparing dinner. She
left the kitchen to go to the bathroom, took the door to the basement by mistake, fell down the
stairs and sustained injuries. This action for damages was then brought.
Plaintiff contends that the platform at the top of the basement stairs was too small for
safety and that in maintaining such a hazardous condition defendant was guilty of negligence.
Considering the nature of the asserted negligence, the instruction given was in practical effect
tantamount to an instructed verdict for the defendant. The jury was told that defendant was
under no duty to the plaintiff to correct the condition. If the status of the plaintiff was that of
an invitee rather than that of a mere licensee the instruction was error.
In support of the instruction defendant contends that plaintiff should be held to have
occupied the same licensee status as an invited guest. She points to the fact that there were no
business dealings between the parties and asserts that in absence of such dealings plaintiff
must be held a gratuitous licensee. See Restatement of the Law, Torts, secs. 330-332.
[Headnote 3]
In our view the existence of a business relationship cannot today be held to be essential to
the status of invitee. It would, we feel, be grossly unjust to place plaintiff in an inferior
position because she was willing, out of the goodness of her heart, to respond to defendant's
call for help and to perform needed services for defendant's benefit without demanding
compensation. She was a servant in fact, albeit a gratuitous one, and was as much justified in
expecting a safe place to work as a servant for hire would have been. She is, then, entitled to
occupy the same status. Nevada Transfer & Warehouse Company v. Peterson, 60 Nev. 90, 99
P.2d 633. See Prosser, Business Visitors and Invitees, 26 Minn. Law Rev. 573.
____________
74 Nev. 366, 366 (1958) Fuchs v. Mapes
HANS FUCHS, Appellant v. MRS. CHARLES W. MAPES aka Irene Gladys Mapes,
CHARLES W. MAPES, Jr., and GLORIA MAPES, Respondents.
No. 4046
December 16, 1958. 332 P.2d 1002.
Department No. 3.
Personal injury action. The trial court rendered summary judgment for defendant, and the
plaintiff appealed. The Supreme Court, Merrill, J., held that since, under terms of lease,
tenant's authority to act for landlords with reference to roof repair only arose in event of their
failure to act after notice that repair had become necessary, and no such notice had been
given, tenant would be deemed to have acted for himself rather than as agent for landlords
when he requested repairman to go to roof and make necessary repairs; and held that even
though leak during rainstorm had threatened tenant's merchandise with injury, repairman
could not be held to have been an invitee entitled to recover for injuries sustained when he
fell through plaster in an unfloored portion of attic, because of alleged negligence on part of
owner in failing to provide a safe means of access to roof.
Affirmed.
(Rehearing denied April 20, 1959.)
Gordon C. Shelley and Norman H. Samuelson, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey and Thompson, of Reno, for Respondents.
Unless repairman, requested by tenant to go to roof of leased premises and make necessary repairs, was
an invitee, owner of premises owed him no duty to provide a safe means of access to roof.
2. Negligence.
Existence of business relationship is not essential to creation of status of invitee.
74 Nev. 366, 367 (1958) Fuchs v. Mapes
3. Negligence.
It is essential to status of invitee that visitor enter upon premises in question under such circumstances as
to give him reason to suppose that place has been made safe to receive him; but in ordinary case where
visitor is upon premises for business purposes of occupier and at occupier's request, implied representation
to that effect can be said to exist.
Where, under terms of lease, tenant's authority to act for landlords with reference to roof repair only arose
in event of their failure to act after notice that repair had become necessary, and no such notice had been
given, tenant would be deemed to have acted for himself rather than as agent for landlords when he
requested repairman to go to roof and make necessary repairs; and even though leak during rainstorm
threatened tenant's merchandise with injury, repairman could not be held to have been an invitee entitled to
recover for injuries sustained when he fell through plaster in an unfloored portion of attic, because of
alleged negligence on part of owner in failing to provide a safe means of access to roof.
5. Negligence.
Even where benefit to occupier exists, it is still necessary that entry by visitor be under such
circumstances as to give him cause to believe that the premises have been made ready to receive him if he
is to have status of invitee.
OPINION
This is an action for personal injuries. From summary judgment for the defendant the
plaintiff has taken this appeal. He asserts error in that the trial court refused to grant him the
status of an invitee upon defendants' premises and accordingly found no breach of duty on
defendants' part. The sole question upon this appeal is whether under the facts plaintiff can
claim the status of invitee. If not, the judgment must be affirmed.
[Headnote 1]
The injuries were sustained upon business premises in the city of Reno owned by
defendants and leased to one Gilbertson. The roof was in need of repair. During a rain storm
it leaked and merchandise was threatened with injury. Gilbertson requested plaintiff to go to
the roof and make the necessary repairs. The way to the roof was by way of a trap door
through an attic which was not completely floored.
74 Nev. 366, 368 (1958) Fuchs v. Mapes
was not completely floored. Plaintiff fell through the plaster in an unfloored portion of the
attic and sustained the injuries for which this action was brought. He asserts negligence on the
part of the owner in failing to provide a safe means of access to the roof. Such a duty was not
owing to him unless his status was that of an invitee.
It must be conceded that the law is in a state of some confusion as to the proper definition
of an invitee and as to the factors necessary to such status. Prosser, the Law of Torts, 2d ed.,
p. 452, states, An invitee is a person who is invited or permitted to enter or remain on land
for a purpose of the occupier. Some courts require that the business upon which he comes be
pecuniary in its nature, or of some economic benefit to the possessor; others require only that
it be such that there is an implied representation that care has been exercised to make the land
safe for the visitor.
[Headnote 2]
This court has adopted the view that the existence of a business relationship is not
essential. Murdock v. Petersen, 74 Nev. 363, 332 P.2d 649; Nevada Transfer & Warehouse
Co. v. Peterson, 60 Nev. 87, 90, 99 P.2d 633.
[Headnote 3]
It is essential, however, that the visitor enter upon the premises in question under such
circumstances as to give him reason to suppose that the place has been made safe to receive
him or (as stated by Prosser supra) as to create an implied representation to that effect. In the
ordinary case where the visitor is upon the premises for business purposes of the occupier and
at the occupier's request, such representation can be said to exist.
Plaintiff contends that such was the case here. He asserts that under the terms of the lease
between defendants and Gilbertson, Gilbertson was authorized to repair the roof on behalf of
defendants in the event they failed to act. Plaintiff contends that Gilbertson was therefore
acting as agent of the defendants in requesting plaintiff to undertake the repair.
74 Nev. 366, 369 (1958) Fuchs v. Mapes
[Headnote 4]
Under the terms of the lease, however, Gilbertson's authority to act for the defendants with
reference to roof repair only arose in the event of defendants' failure to act after notice that
repair had become necessary. No such notice had been given in this case. Gilbertson was not
therefore acting for defendants, but for himself. His request to the plaintiff cannot be
construed as a request which he was authorized to make on behalf of the defendants.
Plaintiff next contends that request by or on behalf of the defendants is not necessary
under the circumstances of this case; that where the privilege of user exists for the common
interest or mutual advantage of both parties it is to be held a business invitation and not a
mere license; citing Pomponio v. New York, New Haven & Hartford Railroad Co., 66 Conn.
528, 34 A. 491, 32 L.R.A. 530.
[Headnote 5]
Even where benefit to the occupier exists, however, it is still necessary that the entry by
the plaintiff be under such circumstances as to give him cause to believe that the premises
have been made ready to receive him. It is stated by Prosser, Business Visitors and Invitees,
26 Minn. Law Rev. 573, 607, It is not the fact that benefit is conferred which is decisive, but
the fact that it is conferred in the expectation of a return, an obligation to provide a safe place
to confer it. If the benefit is given without such expectation induced, as in the case of
volunteer assistance, it is held very generally that the volunteer is not entitled to protection. It
is only where such assistance is rendered under circumstances which indicate that the plaintiff
is accepted on the footing of a gratuitous servant, and so impliedly assured that he will be
protected, or where he has some other reason to expect protection in return, that he is
regarded as more than a licensee. Cf. Murdock v. Petersen, supra.
In the case before us although the plaintiff proceeded to act for the mutual benefit of
Gilbertson and the defendants, he did so without the knowledge or consent of defendants
and under circumstances where he could hardly be justified in anticipating that his
presence was expected and that preparations to receive him had been made.
74 Nev. 366, 370 (1958) Fuchs v. Mapes
of defendants and under circumstances where he could hardly be justified in anticipating that
his presence was expected and that preparations to receive him had been made.
The situation in many respects is analogous to two different situations discussed by
Prosser in the Minn. Law Rev. article supra and might be said to fall between the two
factually and to require the same result for the same reason.
The first situation is that of the emergency entrance of a fireman or policeman. As is
pointed out by Prosser, supra, 26 Minn. Law Rev. 610, the question is as to what the visitor
may reasonably expect to find when he comes. [T]hese individuals enter at unforeseeable
moments, upon unusual parts of the premises, and under circumstances of emergency, where
care in preparation cannot reasonably be looked for. A man who climbs in through a
basement window in search of a fire or a thief cannot expect an assurance that he will not find
a bulldog in the cellar. Regardless of benefit or invitation, there is no reason to suppose that
the place has been made safe.
The second situation is that of one who has a business invitation to enter certain portions
of the premises but who, without invitation or consent, enters other portions to which his
invitation does not extend. Prosser states, 26 Minn. Law Rev. 607, There are many cases of
customers and others who enter parts of premises not open to the public, for the purpose of
the business for which other parts are open. If they go behind the counter, or into a storeroom
to look for goods, with the invitation or encouragement of the occupier, they are held to be
invitees, but if they go on their own initiative, without such encouragement, they are no better
than licensees. * * * The difference * * * is merely one of whether the visitor has been led to
expect that the premises have been made safe for his reception.
Under the circumstances of this case we conclude that the trial court did not err in ruling
that plaintiff was not an invitee of the owner.
74 Nev. 366, 371 (1958) Fuchs v. Mapes
the trial court did not err in ruling that plaintiff was not an invitee of the owner.
Affirmed.
Badt, C. J., concurs.
(Note: McNamee, J., having become a member of the court after argument and submission
of the case, did not participate in the foregoing opinion.)
____________
74 Nev. 371, 371 (1958) Fitzharris v. Phillips (2 cases)
THOMASINE FITZHARRIS, Appellant v. MADELINE T. PHILLIPS and
KENNETH W. PHILLIPS, Respondents.
Nos. 4101 and 4102
December 19, 1958. 333 P.2d 721.
Consolidated appeals from the Eighth Judicial District Court, Clark County; Frank
Separate actions by mother against daughter and daughter's husband for restitution of
property and to set aside deed from mother to defendants. The trial court denied motion to set
aside order of summary judgment in first case and entered judgment in second case adverse to
mother. Appeals taken by mother were consolidated. The Supreme Court, Badt, C. J., held
that under statute to effect that no judgment shall be effective for any purpose until formal
entry thereof, order granting motion for summary judgment, entered on May 26, 1955, was
not a final judgment where formal entry of judgment was made on October 3, 1957, and
jurisdiction to entertain motion, made on October 14, 1957, to set aside judgment was not
precluded by rule requiring that motion to set aside judgment be made within six months after
entry, and that judgment in first case was not res judicata of issues in second case.
No. 4101 reversed and remanded. No. 4102 remanded with directions to set aside the
judgment and dismiss the action.
Sidney R. Whitmore, of Las Vegas, for Respondents.
1. Judgment.
Under statute to effect that no judgment shall be effective for any purpose until formal entry thereof,
order granting motion for summary judgment, entered on May 26, 1955, was not a final judgment where
there was no formal entry of judgment until October 3, 1957, and jurisdiction to entertain motion, made on
October 14, 1957, to set aside judgment was not precluded by rule requiring that motion to set aside
judgment be made within six months after entry. Rules 15(c), 54(c), 58 and subds. (a-c), 60, NRCP.
2. Judgment.
If judgment, in action by mother against daughter and daughter's husband for restitution of real property,
had been final it would have been res judicata of issues in second action by mother against daughter and
daughter's son in which mother sought to set aside deed from herself to defendants in view of fact that it
was such deed that court in first case had relied on in ordering judgment and that title to property was
essential issue in both actions. Rules 15(c), 54(c), NRCP.
3. Abatement and Revival; Judgment.
Where two cases were brought involving identical causes of action, and reviewing court set aside
judgment in first action, bar of res judicata could not apply to second action and second action would be
remanded with instructions that judgment therein be set aside and that district court order that action
dismissed for reason of prior pending action. NCL 1929, sec. 8596.
OPINION
In March 1955 Thomasine Fitzharris sued her daughter, Madeline T. Phillips, and the
latter's husband, Kenneth W. Phillips, for restitution of the real property known as the Four
Winds Motel in Clark County, Nevada. This case is now before us as No. 4101. The trial
court on May 25, 1955 granted defendants' motion for summary judgment upon showing of
a deed from plaintiff to defendants and certain letters of confirmation thereof from
plaintiff, giving as its reasons that there was no genuine issue of fact to be submitted and
that defendants were entitled to judgment as a matter of law.
for summary judgment upon showing of a deed from plaintiff to defendants and certain letters
of confirmation thereof from plaintiff, giving as its reasons that there was no genuine issue of
fact to be submitted and that defendants were entitled to judgment as a matter of law. The
order granting the motion was entered on May 26, 1955, but there was no formal entry of
judgment at this time.
On June 7, 1955 Thomasine Fitzharris brought another action against Madeline T. Phillips
and Kenneth W. Phillips in which she sought to set aside the deed from plaintiff to
defendants, upon which deed the court in the first case had relied in ordering summary
judgment. This case is now before us as No. 4102. Following trial in this second case the
court stated that the evidence would seem to support the plaintiff's position that Thomasine's
deed to Madeline was merely to the latter in trust for Thomasine under an agreement to
reconvey to Thomasine and that Madeline understood this to be so. On October 1, 1957 the
case was submitted.
On October 2, 1957 Thomasine moved the court to vacate the order for summary judgment
entered on May 26, 1955 in No. 4101. On October 3, 1957 written judgment was filed in the
first case. On October 14, 1957, the court denied the motion to vacate the order in No. 4101
on the ground that the motion was not made within six months after the entry of the order. On
the same day Thomasine moved the court in No. 4101 for an order setting that judgment
aside, on the ground, among others, that the judgment was improvidently entered because the
motion to set aside the order of summary judgment was pending and undetermined at the date
of the entry of the judgment. That motion was denied.
Judgment in the second case was entered December 11, 1957.
Case No. 4101 is an appeal from the order in the first case denying motion to set aside the
order sustaining the motion for summary judgment and the order denying the motion to set
aside the judgment. Case No. 4102 is an appeal from judgment in the second case. The two
appeals have been consolidated and this opinion will dispose of both matters.1
appeals have been consolidated and this opinion will dispose of both matters.
1

Case No. 4101
[Headnote 1]
In denying the motion to set aside the order for summary judgment in this matter the court
acted on the ground that the motion had not been made within six months of the date of the
order granting summary judgment. In other words, the learned trial judge considered the order
for summary judgment as a final judgment and that he had lost jurisdiction to entertain the
motion to set it aside under NRCP Rule 60 requiring a motion to set aside a judgment to be
made within six months after the same was entered.
In this the court erred. The order for summary judgment was not a final judgment. NRCP
Rule 58 provides in material part, * * * all judgments shall be signed by the judge and filed
with the clerk. Subdivision (c) of Rule 58 reads: The filing with the clerk of a judgment,
signed by the judge, * * * constitutes the entry of such judgment, and no judgment shall be
effective for any purpose until the entry of the same, as hereinbefore provided. * * * The
notes of the Advisory Committee on the Rules of Civil Procedure say of Rule 58: This is a
new rule of which subsections (a) and (b) were adapted from Utah, and subsection (c) from
New Mexico. It is considered clearer than the federal rule and more desirable than present
Nevada law. Under this rule, judgment will become effective, and time will start to run, only
when it has been signed and filed with the clerk. * * * The decisions of this court prior to
January 1, 1953, the effective date of NRCP, to the effect that the pronouncement of
judgment from the bench fixes the date of the judgment, no longer have any bearing on
the question.
____________________

1
Although without significance in the determination of these consolidated appeals, we may note that the
confusion is further compounded by the fact that there had been a still earlier action in which appellant had sued
another daughter, one Gertrude Schade (in whose name the property had originally stood) and obtained a decree
quieting title to the same property. Gertrude Schade became incompetent, later regained her competency and
quitclaimed her interest in the property to appellant.
bench fixes the date of the judgment, no longer have any bearing on the question. The order
denying the motion to set aside the summary judgment must therefore be set aside to the end
that the trial court may dispose of the motion on its merits.
Case No. 4102
Judgment in case No. 4102 was entered in favor of defendants upon the basis that the
action was barred by the prior adjudication in No. 4101.
[Headnote 2]
Appellant's first attack on the judgment in No. 4102 is that the cause of action pleaded in
the second suit was essentially different from that asserted in the first, so that the judgment in
the first suit could not constitute a bar. This contention is without merit. In both actions the
respective parties asserted title and denied the title asserted by the other. Title to the property
was essentially the issue in both actions. Barron & Holtzoff, Federal Practice & Procedure,
Vol. 3, sec. 1194, p. 35, commenting on this second sentence of Rule 54(c), states: * * *
This provision implements the general principle of Rule 15(c), that in a contested case the
judgment is to be based on what has been proved rather than what has been pleaded. It is a
necessary rule in a merged system of law and equity; indeed the difficulties which some states
have had in implementing the merger of law and equity stem from a failure to grasp and to
apply this principle. Any rule other than that stated in the second sentence of Rule 54(c)
would mean preservation of the distinctions between law and equity and of the various forms
of action which these rules are intended to abolish * * *.
In Wehle v. Price, 202 Cal. 394, 260 P. 878, 880 (1927), an action by the grantor to have a
deed absolute in form, declared a mortgage, and to quiet his title, judgment previously
obtained in an ejectment action by the grantee against the grantor, barring the former from all
claims of title to the premises was held to be res judicata of the question of title.
The court quoted Freeman on Judgments (5th ed.), Vol. 2, secs. 866, 867, pp. 1830-1832,
with approval: Primarily an action of ejectment or its equivalent * * * is possessory in its
nature. It may, however, and frequently does become the means of trying title, since either
party may base his right to possession entirely upon some claim of title * * *. Where title was
alleged by either party as the basis of his right to possession, the judgment became res
judicata to the extent that an adjudication of it was essential to the judgment, but not
otherwise (citing numerous California cases). * * *
* * * Title is put in issue by an allegation of ownership in fee simple. * * * To like effect
are White v. Lantz, 126 Cal.App. 693, 14 P.2d 1041 and Coates v. Coleman, 72 R.I. 304, 51
A.2d 81 (reargument denied 72 R.I. 304, 51 A.2d 530). See also 50 C.J.S., Judgments, sec.
737.
The second ground of attackthat there was no final judgment in No. 4101 which could
constitute a bar to No. 4102must be sustained as fatal to the judgment in No. 4102. At the
time that the judgment in No. 4102 was actually entered and filed, there had been a formal
judgment filed and entered in No. 4101. This judgment, however, we have just set aside.
Accordingly, the bar of res judicata cannot apply in No. 4102, and judgment in favor of
defendants rendered upon this basis must be reversed.
[Headnote 3]
The situation facing us as far as concerns No. 4102, then, is this: No. 4101 remains
pending by virtue of the action which we have taken with respect to that case. No. 4102, as
we have just decided, involves the identical cause of action. It would be contrary to
fundamental judicial procedure to permit two actions to remain pending between the same
parties upon the identical cause. Indeed, under our practice act prior to adoption of the Rules,
such situation was a special ground of demurrer. Sec. 8596 NCL 1929. Therefore No. 4102
should be remanded with instructions that the judgment be set aside and that the district court
proceed to order that action dismissed for the reason that in an action now pending in the
Eighth Judicial District Court between the same parties the identical cause of action is
asserted.
pending in the Eighth Judicial District Court between the same parties the identical cause of
action is asserted.
The judgment in No. 4101 is hereby reversed and the cause remanded with directions to
set aside the judgment and the order denying the motion of appellant to vacate the order for
summary judgment for the respondents, and to hear appellant's said motion on its merits and,
if granted, to dispose of all questions as to the legal and equitable title of the respective
parties to the said property, and upon such amended or additional or supplemental pleadings
as the court may see fit to allow.
No. 4102 is hereby remanded with directions to set aside the judgment and dismiss the
action.
Appellant is allowed her costs in both appeals.
Merrill, J., concurs.
____________
74 Nev. 377, 377 (1958) Ardsley v. United Pac. Ins. Co.
ARDSLEY, Inc., a Nevada Corporation, Appellant, v. UNITED PACIFIC INSURANCE
COMPANY, a Corporation, Respondents.
No. 4107
December 22, 1958. 332 P.2d 1000.
Department No. 1.
Action by certain materialmen and subcontractors to foreclose lien in which owner brought
in surety on a third party complaint. From a judgment of the trial court for owner and against
surety, owner appealed on ground that judgment was erroneously reduced. The Supreme
Court, Merrill, J., held that where surety bond was conditioned on failure of principal to
faithfully perform all provisions of contract and pay all persons who supplied principal or
subcontractor, and escrow agreement was set up from which there was a premature payment
to principal amount contrary to the terms of construction contract but it was conceded
that sum prematurely paid was owed by builder upon contract in question, surety was not
prejudiced by owner's breach in prematurely paying sum to defaulting principal.
payment to principal amount contrary to the terms of construction contract but it was
conceded that sum prematurely paid was owed by builder upon contract in question, surety
was not prejudiced by owner's breach in prematurely paying sum to defaulting principal.
Judgment modified in favor of appellant; as so modified, judgment affirmed.
George E. Franklin, Jr., of Las Vegas, for Respondent.
Where surety bond provided by builder was conditioned on failure of principal to faithfully perform all
provisions of contract and pay all laborers, mechanics, subcontractors, and materialmen and during
progress of work there was a premature payment of money to builder from escrow fund contrary to terms of
construction contract, but it was conceded that sum prematurely paid was owed by builder upon contract in
question, under terms of surety bond builder's obligation to pay these claims became obligation of surety on
builder's default and hence no prejudice resulted to surety from owner's breach and surety would not be pro
tanto released from liability.
Where construction contract provided for deposit of $20,000 in escrow and balance of $15,000 to be paid
in form of a first trust deed, and note and trust deed were delivered prior to commencement of construction
by builder who promptly negotiated note, since construction contract said nothing about date of delivery of
note and escrow instructions available to surety prior to bond's execution clearly showed intention of both
builder and owner that delivery should precede commencement of construction, surety could not contend
that he was prejudiced by owner's delivery of note to principal prior to commencement of construction.
OPINION
Upon this appeal we are concerned with the extent of a surety's liability upon a bond given
for completion of a construction contract. Judgment was rendered by the trial court against
the surety and in favor of the owner in the sum of $4,222.13. The owner has taken this appeal,
contending that the judgment was erroneously reduced by the sum of $6,019.65 and should
have been entered in the sum of $10,241.7S.
by the sum of $6,019.65 and should have been entered in the sum of $10,241.78.
The construction contract was between appellant as owner and one Terlizzi as builder.
Pursuant to the terms of the contract the sum of $20,000 was paid by the owner into escrow
under instructions that it be paid out to the builder as work progressed.
A surety bond was provided by the builder with the respondent serving as surety. The
condition of the surety's obligation was failure of the principal to faithfully perform all the
provisions of said contract and pay all laborers, mechanics, subcontractors, materialmen and
all persons who shall supply said principal or said subcontractors with provisions and
supplies for the carrying on of such work.
During the progress of construction certain sums were disbursed by the escrow holder in
accordance with the agreement. The sum in issue, $6,019.65, was disbursed prematurely and
contrary to the escrow instructions.
The builder defaulted in completion. This action was initiated in the court below by certain
materialmen and subcontractors as a lien foreclosure suit. The owner brought in the surety
upon a third party complaint.
The trial court ruled that premature payment of the sum of $6,019.65, contrary to the terms
of the construction contract, constituted a material variance of the terms of the contract and
held the same to be a pro tanto exoneration of the surety's obligation.
[Headnote 1]
It is conceded that the sums so prematurely paid were owed by the builder upon the
contract in question. Under the terms of the surety bond the builder's obligation to pay these
claims became the obligation of the surety upon the builder's default. Acoustics, Inc. v.
American Surety Co., 74 Nev. 6, 320 P.2d 626. Had the claims not been paid out of escrow
the surety would have eventually had to pay them. The surety was not, then, prejudiced by the
fact that payment was premature. There being no prejudice to the surety resulting from the
owner's breach, that breach will not release the surety. Corporation of President of Church of
Jesus Christ of Latter-Day Saints v. Hartford Accident & Indemnity Company, 9S Utah 297,
95 P.2d 736.
Latter-Day Saints v. Hartford Accident & Indemnity Company, 98 Utah 297, 95 P.2d 736.
It was, then, error to deduct from the amount due to the owner the sums prematurely paid.
The surety company contends that even though this be so judgment should be affirmed.
The trial court, it contends, erred in favor of appellant in an amount which more than offsets
the amount in issue.
The total construction cost was fixed at $35,000. The contract provided, $20,000
deposited in Escrow, Balance of $15,000 payable to Mike Terlizzi in form of a First Trust
Deed, payable $350 per month or more, 6% interest excluded in payment, payments to start
30 days after Notice of Completion filed. Note due and payable in full in five (5) years from
date of Note.
The note and trust deed were delivered prior to the commencement of construction. The
note was promptly negotiated by the builder.
The surety company contends that this was contrary to the terms of the contract and a
variance prejudicial to the surety. It construes the contract as providing that the note would
not be delivered until after completion of the contract and quite reasonably points out that had
delivery been withheld the surety company would have had recourse to the sum of $15,000
now lost to it.
[Headnote 2]
The contract, however, said nothing about the date of delivery of the note. The escrow
instructions clearly showed the intention of both builder and owner that delivery should
precede commencement of construction. These escrow instructions were executed prior to the
execution of the surety bond and were available for examination by the surety.
The trial court ruled that, considering the ambiguity of the construction contract upon the
question of delivery, it was incumbent upon the surety company to ascertain the facts. This
conclusion we regard as reasonable.
It is ordered that judgment in favor of appellant be modified by increasing the sum thereof
from $4,222.13 to $10,241.7S.
to $10,241.78. As so modified judgment is affirmed with costs to the appellant.
Badt, C. J., concurs.
(Note: McNamee, J., having become a member of the Court after argument and
submission of the case, did not participate in the foregoing opinion.)
____________
74 Nev. 381, 381 (1958) Magill v. Lewis
W. LYNN MAGILL and PAUL H. WRIGHT, Appellants, v. JOBY LEWIS and HELEN
LEWIS, His Wife, Respondents.
No. 4070
December 22, 1958. 333 P.2d 717.
Appeal from Second Judicial District Court, Washoe County; Gordon W. Rice, Judge,
Department No. 3.
Action to recover balance owing under building contract and damages for alleged fraud.
The trial court entered summary judgment for defendants, and plaintiffs appealed. The
Supreme Court, Badt, C. J., held that fact that one of two plaintiffs was not licensed as a
contractor in Nevada would not preclude recovery for unjust enrichment of defendants as a
result of their refusal to pay balance owing under contract.
Reversed.
(Rehearing denied January 13, 1959.)
Sidney W. Robinson, of Reno, for Appellants.
Vargas, Dillon & Bartlett, of Reno, for Respondents.
1. Judgment.
Existence of any issue of material fact for determination by court or jury precludes summary judgment
under rule 56, NRCP.
2. Licenses.
Allegations that plaintiffs were induced to enter into contract to construct a building for defendants by
false representations that defendants would not employ, adversely to plaintiffs, known
fact that one of them was not licensed as a contractor in the state and that
defendants set up such lack of a license as defense to suit to foreclose lien for
balance owing under contract, presented an action for unjust enrichment of
defendants, and not an action on the contract or for compensation for performance
thereof, within meaning of statute prohibiting maintenance of action for
compensation for performance of any contract for which a license is required without
allegation and proof of license.
sentations that defendants would not employ, adversely to plaintiffs, known fact that one of them was not
licensed as a contractor in the state and that defendants set up such lack of a license as defense to suit to
foreclose lien for balance owing under contract, presented an action for unjust enrichment of defendants,
and not an action on the contract or for compensation for performance thereof, within meaning of statute
prohibiting maintenance of action for compensation for performance of any contract for which a license is
required without allegation and proof of license. NRS 624.230, 624.320, 624.360.
3. Contracts.
Rule against enforcement of illegal agreements or those against public policy should not be applied where
the public cannot be thereby protected, no serious moral turpitude is involved, and defendant is the one
guilty of the greatest moral fault and would be unjustly enriched if rule were applied.
4. Licenses.
Where owners contracted for construction of a building knowing that one of two contractors was not
licensed as such in state in which contract was to be performed, and building was completed, lack of such
license would not preclude recovery for unjust enrichment of owners as a result of their refusal to pay
balance owing under contract. NRS 624.230, 624.320.
5. Licenses.
Under liberalized rules of pleading, allegations that plaintiffs were induced to enter into contract to
construct a building for defendants in reliance upon false representations by defendants that they would not
employ, adversely to plaintiffs, the fact that one of them was not licensed as a contractor in state in which
contract was to be performed and prayer for judgment for balance owing under contract did not preclude
recovery for unjust enrichment of defendants as a result of their refusal to pay balance owing under
contract. Rule 54(c) NRCP; NRS 624.230, 624.320.
6. Judgment.
Under liberalized rules of pleading, particular legal theories are subordinated to court's right and duty to
grant the relief to which prevailing party is entitled regardless of whether such relief is demanded, and, in a
contested case, the judgment must be based on what has been proved and not on what has been pleaded.
Rule 54(c), NRCP.
7. Judgment.
Prayer for relief may be of assistance as indicating the relief to which plaintiff may be entitled, but it is
not controlling, and the relief to which a party is entitled on the evidence will be granted regardless of
designation of the claim or prayer for relief. Rule 54(c), NRCP.
OPINION
Appellant Magill, a licensed contractor in the State of Nevada, and appellant Wright, a
licensed contractor in the State of California, entered into a contract with respondents for the
construction of a casino, bar and restaurant building at Lake Tahoe in the Sierra Nevada
mountains, within the State of Nevada, but fairly close to the California line, for the sum of
approximately $130,000. The first cause of action in the complaint in the court below was for
the balance of some $12,000 due on the contract. The second cause of action is based on
fraud. It alleges that respondent Lewis, prior to March 29, 1955, desired the construction of
the building so as to be ready for occupancy for the summer season of 1955 at the Lake, and
on said date conferred with both plaintiffs and insistently requested such construction; that
plaintiffs advised Lewis that Wright was not a licensed contractor under the laws of Nevada
but was licensed in California and that Wright was prohibited by Nevada statutes from
engaging in the contracting business in Nevada and that he could therefore not undertake the
contract; that Lewis thereupon falsely and fraudulently and with intention to deceive and
defraud the plaintiffs represented that Wright's failure to possess a Nevada contractor's license
was immaterial to him as he was relying upon Wright's experience, skill, ability and
qualifications rather than upon the guarantee thereof implied from the holding of a Nevada
license; that he, Lewis, would not employ the lack of such license adversely to the plaintiffs;
that he was satisfied so long as Magill had a Nevada license and that he would consider
Magill's license as inuring to the benefit of the partnership or joint adventure; that said
representations were false and known to Lewis to be false and that Lewis intended to use
Wright's lack of a Nevada license as an excuse for refusing to pay in full on the contract; that
plaintiffs, believing and relying on these representations, were induced to enter into the
agreement to furnish the labor and materials for the structure for the sum of $130,000, to
the end that Lewis was enabled to open for business June 17, 1955, and the building
completed August 25, 1955; that Lewis failed to pay the balance due in the sum of
$12,735; that plaintiffs in due course filed their lien and their suit to foreclose the same
and that defendants answered, setting up Wright's lack of a Nevada license and moved
for summary judgment; that such plea of the statute, if successful, would result in
damage to plaintiffs in the sum of $12,735 by reason of the false and fraudulent
representations alleged, all of which were set forth in an amended and supplemental
complaint.
plaintiffs, believing and relying on these representations, were induced to enter into the
agreement to furnish the labor and materials for the structure for the sum of $130,000, to the
end that Lewis was enabled to open for business June 17, 1955, and the building completed
August 25, 1955; that Lewis failed to pay the balance due in the sum of $12,735; that
plaintiffs in due course filed their lien and their suit to foreclose the same and that defendants
answered, setting up Wright's lack of a Nevada license and moved for summary judgment;
that such plea of the statute, if successful, would result in damage to plaintiffs in the sum of
$12,735 by reason of the false and fraudulent representations alleged, all of which were set
forth in an amended and supplemental complaint.
NRS sec. 624.230 provides that it shall be unlawful for any person, association etc., or any
combination of any thereof, to engage in the business or act in the capacity of a contractor
within the state or to bid a job situated within the state without having a contractor's license.
The sections immediately following provide for the applications for license, examinations
thereon, the showing that must be made by the applicant as to experience, financial
responsibility, knowledge of building laws, etc., and proceedings for suspension or revocation
of licenses, hearings thereon, etc.
NRS sec. 624.320 reads as follows: No person, firm, copartnership, corporation,
association or other organization, or any combination of any thereof, engaged in the business
of acting in the capacity of a contractor shall bring or maintain any action in the courts of this
state for the collection of compensation for the performance of any act or contract for which a
license is required by this chapter without alleging and proving that such person, firm,
copartnership, corporation, association or other organization, or any combination of any
thereof, was a duly licensed contractor at all times during the performance of such act or
contract and when the job was bid. NRS sec. 624.360 makes any violation of the chapter a
misdemeanor, punishable by a minimum fine of $50.
$50. On the basis of sec. 624.320 the trial court entered summary judgment for respondents.
[Headnote 1]
Appellants first contend that the entry of a summary judgment under Rule 56 NRCP is
precluded if there is any factual determination remaining for the court or jury. Parman v.
Petricciani, 70 Nev. 427, 272 P.2d 492. This is conceded.
(1) They next contend that the second cause of action pleaded in the amended and
supplemental complaint alleges fraud and sets up the factual issue for determination by court
or jury as to whether the defendants, through the perpetration of such fraud, have attempted
unjustly to enrich themselves; and that if the fraudulent actions of the defendants as pleaded
can be proved by the plaintiffs, they are entitled to judgment despite the bar of the licensing
statute precluding a recovery of compensation under the contract.
Respondents insist that if the statute can thus be circumvented by allegations such as those
made by plaintiffs, then all such statutes can be rendered meaningless and their primary
purpose defeated.
[Headnote 2]
We start with the proposition that plaintiffs' second cause of action is not an action on the
contract itself or for compensation for its performance, but one to prevent the defendants'
unjust enrichment of themselves accomplished by means of the fraud practiced by them upon
the plaintiffs.
[Headnote 3]
Various means and remedies have been employed to afford relief outside of the domains of
technical contracts and torts. Unjust enrichment, restitution, quasi contract, implied contract,
resulting and constructive trusts, accounting, etc., are some of the means thus employed. See
46 Am.Jur. 99-101, Restitution and Unjust Enrichment, for numerous instances and
examples. Denning v. Taber, 70 Cal.App.2d 253, 160 P.2d 900 (hearing denied by the
Supreme Court), which afforded relief by accounting in the case of a transaction illegal
because of failure to secure a bar permit, was referred to as the leading case on the
subject in the later case of Norwood v. Judd, 93 Cal.App.2d 276, 209 P.2d 24 {hearing of
Supreme Court denied). There, after approving the general rule on which respondent
relies {see Hooper v. Barranti, S1 Cal.App.2d 570, 1S4 P.2d 6SS) and after conceding a
contrary view expressed in some cases, the court notes numerous cases in which
exceptions to the general rule have been recognized.
by the Supreme Court), which afforded relief by accounting in the case of a transaction illegal
because of failure to secure a bar permit, was referred to as the leading case on the subject in
the later case of Norwood v. Judd, 93 Cal.App.2d 276, 209 P.2d 24 (hearing of Supreme
Court denied). There, after approving the general rule on which respondent relies (see Hooper
v. Barranti, 81 Cal.App.2d 570, 184 P.2d 688) and after conceding a contrary view expressed
in some cases, the court notes numerous cases in which exceptions to the general rule have
been recognized. Then, after approving the reasoning in the Denning case as most
convincing, the court says [93 Cal.App.2d 276, 209 P.2d 31]: The rule that the courts will
not lend their aid to the enforcement of an illegal agreement or one against public policy is
fundamentally sound. The rule was conceived for the purposes of protecting the public and
the courts from imposition. It is a rule predicated upon sound public policy. But the courts
should not be so enamored with the latin phrase in pari delicto' that they blindly extend the
rule to every case where illegality appears somewhere in the transaction. The fundamental
purpose of the rule must always be kept in mind, and the realities of the situation must be
considered. Where, by applying the rule, the public cannot be protected because the
transaction has been completed, where no serious moral turpitude is involved, where the
defendant is the one guilty of the greatest moral fault, and where to apply the rule will be to
permit the defendant to be unjustly enriched at the expense of the plaintiff, the rule should not
be applied. That is the theory of the Denning case, and of the other cases above cited, and we
think it is the correct and more enlightened rule.
[Headnote 4]
Norwood v. Judd may now be considered the leading case on the subject. Decided in 1949,
it has been followed or cited with approval in numerous cases from 1954 to 1958. Among
these we may note particularly Grant v. Weatherholt, 123 Cal.App.2d 34, 266 P.2d 185,
Wilson v. Stearns, 123 Cal.App.2d 472, 267 P.2d 59, and Kennard v. Rosenberg, 127
Cal.App.2d 340, 273 P.2d S39, as being in point here. In Grant v. Weatherholt the court
fully recognized the nullifying effect of the statute. "Plaintiff's contract with the
corporation was void.
v. Rosenberg, 127 Cal.App.2d 340, 273 P.2d 839, as being in point here. In Grant v.
Weatherholt the court fully recognized the nullifying effect of the statute. Plaintiff's contract
with the corporation was void. He could not recover on the contract, nor for breach of it, nor
for the value of work done or for moneys expended thereunder. It said further, however:
The courts will not impose penalties for noncompliance in addition to those that are
provided expressly or by necessary implication. If in the instant case we should preclude a
remedy against defendants' unjust self-enrichment by means of their own fraud, we would be
imposing a penalty beyond and in addition to that provided by the statute. This, under the
reasoning and authorities found in Norwood v. Judd, supra, with which we are in entire
accord, we decline to do. Nor on the other hand are we called on to decide, and we do not
decide, that mere allegations of fraud without a showing of a resulting unjust enrichment
would invoke the powers of the court to afford relief.
(2) Respondents further contend that the allegations of fraud as made by plaintiffs do not
present a case of unjust enrichment, but that such theory is presented for the first time on this
appeal. They concede that if the statute as an absolute bar must be sustained as to the $12,000
balance claimed by plaintiffs, the same situation would exist if respondents had paid no part
of the $130,000 contract and they possessed the entire building without payment therefor.
[Headnotes 5, 6]
As to this contention, we are satisfied that under our liberalized rules of pleading these
points are not fatal to a recovery. Under Rule 54(c) NRCP * * * every final judgment shall
grant the relief to which the party in whose favor it is rendered is entitled, even if the party
has not demanded such relief in his pleadings. A satisfying analysis of this rule is found in
the discussion by Barron & Holtzoff, sec. 1194, pp. 35-37: The second sentence of Rule
54(c) provides that in non-default cases the judgment is not limited in kind or amount by the
demand for relief, but may include whatever relief the successful party is entitled to,
regardless of the demand.
demand for relief, but may include whatever relief the successful party is entitled to,
regardless of the demand. This provision implements the general principle of Rule 15(c), that
in a contested case the judgment is to be based on what has been proved rather than what has
been pleaded. It is a necessary rule in a merged system of law and equity; indeed the
difficulties which some states have had in implementing the merger of law and equity stems
from a failure to grasp and to apply this principle. Any rule other than that stated in the
second sentence of Rule 54(c) would mean preservation of the distinctions between law and
equity and of the various forms of action which these rules are intended to abolish.
[Headnote 7]
Thus the rule provides that the demand for judgment loses much of its restrictive force if
the case is at issue. Particular legal theories of counsel then are subordinated to the court's
right and duty to grant the relief to which the prevailing party is entitled whether demanded or
not. If a party has proved a claim for relief the court will grant him that relief to which he is
entitled on the evidence regardless of the designation of the claim or the prayer for relief. The
prayer for relief may be of help as indicating the relief to which the plaintiff may be entitled,
but it is not controlling, and the question is not whether the plaintiff has asked for the proper
remedy but whether he is entitled to any remedy.
The above quotation likewise disposes of the significance attached to plaintiffs' prayer for
judgment for the balance due under the contract. Such is not the measure of the relief that
may be afforded. We are concerned here, not with the amount due as compensation under the
contract, but with the amount by which defendants have been unjustly enriched. (But see
Restatement of Restitution, sec. l(e).) In Glen Falls Indemnity Co. v. Golden, D.C.D.C.
(1957), 148 Fed. Supp. 41, 43, the court was confronted with the same question presented
here, namely, whether relief in unjust enrichment would be afforded under a complaint
alleging fraud. In answering this question in the affirmative, the federal court stated: "The
Federal Rules of Civil Procedure, Rule 54{c), 2S U.S.C.A., have carried this principle [{that
equity may adjust its relief to the proof)] into civil actions generally and expressly provide
that a party is not bound by his prayer for relief but may receive such relief as the proof
shows him to be entitled to."
The Federal Rules of Civil Procedure, Rule 54(c), 28 U.S.C.A., have carried this principle
[(that equity may adjust its relief to the proof)] into civil actions generally and expressly
provide that a party is not bound by his prayer for relief but may receive such relief as the
proof shows him to be entitled to.
Reversed with costs and remanded for new trial.
Merrill, J., concurs.
____________
In Tribute to
EDGAR A. EATHER
on
His Retirement
74 Nev. 393, 393 (1958) Tribute to Edgar A. Eather
CEREMONIES OF THE SUPREME COURT OF NEVADA, MARKING
RETIREMENT OF ASSOCIATE JUSTICE EDGAR EATHER AND
ADMINISTERING OATH OF OFFICE TO JUDGE FRANK McNAMEE,
MONDAY, DECEMBER 15, 1958, AT 9:30 O'CLOCK A.M., IN THE SUPREME
COURT ROOM AT CARSON CITY, NEVADA.
Presiding:
Chief Justice Milton B. Badt.
Also Present
On the Bench
Associate Justice Edgar Eather
Associate Justice Charles M. Merrill
Judge Frank McNamee.
Also Present
In the Court Room
Members of the Bar and
Friends and Officers of the Court.
Chief Justice Badt:
This session of the Court has been called this morning for the dual purpose of paying
tribute to our Justice Edgar Eather who leaves the bench this morning, and to his long period
of service to the bench, the bar, and the State, and to welcome Judge McNamee who joins the
Court today.
Committed as we are to cold logic in this Court, to precedent, to syllogistic reasoning,
to the philosophy of law, nevertheless it is inevitable that at a moment of this kind it becomes
charged with deep emotion. This cannot be otherwise in view of the long personal and official
association between men who have been associated together so intimately for so many years.
The evidence of the importance of the occasion is here in the presence of so many
eminent counsel from all over the State. To the end that we may recognize the importance of
the occasion we desire to hear from some of the members of the bar, and first I shall call
upon the President of the State Bar of Nevada, Mr. V. Gray Gubler.
of the members of the bar, and first I shall call upon the President of the State Bar of Nevada,
Mr. V. Gray Gubler.
Mr. Gubler:
Mr. Chief Justice, Justice Eather, Justice Merrill and Judge McNamee, Ladies and
Gentlemen:
It is an honor and privilege to join the Supreme Court, distinguished lawyers and
judges and leading citizens of Nevada in extending to Justice Eather on his retirement from
the Supreme Bench a small measure of our love and appreciation for long and meritorious
service as an outstanding jurist of our State. It is a privilege and honor at the same time to
join in the installation of Judge McNamee as a Justice of our Supreme Court.
The genius and strength of the American system of democracy is inherent in Lincoln's
description of it as Government of the people, by the people and for the people. In order to
implement and safeguard this principle, a system of checks and balances was established. The
legislative branch of government enacts the laws; the executive branch administers the affairs
of County, State or Country as the case may be; and the judicial branch interprets the laws
and has final word in adjudicating our personal and property rights. Judges are the protectors
of our lives, our property and our liberties as citizens of the United States and of the State of
Nevada.
Throughout his judicial career Justice Eather bore his robe of office with honor and
distinction, bringing to the bench great personal integrity, extensive experience and a broad
acquaintance with legal matters in various fields and categories, involving all types of human
problems and relationships. After faithful and distinguished service on the district bench for
17 years, Justice Eather received a merited advancement to the Nevada Supreme Court in
1946. As a member of such Court, Justice Eather has again served with honor and distinction.
Though the human contacts and relationships, which Judge Eather molded with the law to
accord justice from the district bench, were largely replaced on the Supreme bench by the
impersonal consideration of law and fact, Justice Eather maintained throughout his
service on the Supreme Court a personal warmth, which was daily manifested by the
friendly and courteous treatment accorded by him to counsel appearing before the Court.
replaced on the Supreme bench by the impersonal consideration of law and fact, Justice
Eather maintained throughout his service on the Supreme Court a personal warmth, which
was daily manifested by the friendly and courteous treatment accorded by him to counsel
appearing before the Court.
Justice Eather has served the cause of justice faithfully and well throughout his
29-year tenure as a Nevada judge and jurist. We view with a deep sense of loss and sadness
Justice Eather's retirement from the Supreme Court, but rejoice with him in the well earned
reward and satisfaction which will surely result from being able to put aside the cares and
concerns of pressing and important proceedings. As he lays down the robes of judicial office
we extend to Judge Eather our deepest appreciation and sincere best wishes for long years of
happiness and self-satisfaction in his retirement, whether spent in study, in travel or in just
enjoying the natural beauty and grandeur of the great State we love so much and that he has
served so well for so long.
We in the southern part of the State regret very much losing Judge McNamee with
whom we have worked as lawyer, friend and Judge over the period of many years. For the
past 12 years he has served with distinction as a member of our district court bench. We
regret very deeply losing him from service in this capacity, but rejoice with him at his
elevation to the Supreme bench of our State. To him we extend from throughout the State,
our best wishes on the added duties and responsibilities of his new calling. Justice McNamee
has this morning started a new career which we know will be eminent and distinguished as an
appellate judge whether on this Court or on other courts of our Nation.
In conclusion I would like to ask the blessings of our Heavenly Father upon this
honorable Court and particularly upon Justice Eather as he lays down the mantle of office and
goes into retirement. For him we ask the blessings of long life and happiness and a rewarding
and self-satisfying retirement over many years to come.
For Justice McNamee we ask the blessings of our Father that he may be guided by
wisdom and understanding in his new calling and responsibilities.
Father that he may be guided by wisdom and understanding in his new calling and
responsibilities.
We have faith and a sure knowledge that this Honorable Court will continue to serve
the best interests of our State and Nation by extending equal justice to all who are called
before the bar of this Court.
Thank you very much.
(Mr. V. Gray Gubler concludes.)
Chief Justice Badt:
Present are other officers of the State Bar, officers of the Clark County Bar
Association, of the Washoe County Bar Association, and many eminent counsel from all over
the State, men who have practiced before both these jurists and before this Court. It would
not be the Court's purpose to call by name any of the other persons to be heard this morning.
Whoever wishes to be heard, will you simply address the Court and let us hear your remarks,
briefly, of course, because we have a Court session this morning in a criminal case from
Clark County in which Mr. Justice McNamee will sit with Mr. Justice Merrill and myself.
The Court will hear from others in the courtroom.
Mr. Jack E. Butler, President of the Clark County Bar Association:
Mr. Chief Justice.
Chief Justice Badt:
Mr. Butler.
Mr. Butler:
I would like to state I am the incoming President of the Clark County Bar Association.
I realize the solemnity of this occasion. Last Wednesday we paid our respects to Judge
McNamee and the work he has done on the bench of the Eighth Judicial District Court. Mr.
David Goldwater told of his capabilities both as a lawyer and a judge. Judge McNamee, in his
own inimitable manner, said he never heard a finer obituary given to a living individual
than David Goldwater gave him.
manner, said he never heard a finer obituary given to a living individual than David
Goldwater gave him.
(Laughter from the audience.)
It is a sort of an obituary to us because we hate to lose him from Clark County, both as
a civic-minded individual and jurist. The younger lawyers who have practiced before Judge
McNamee, I think, have become better lawyers. As Gordon Thompson said, This quite small
room, (indicating the Courtroom)the first time I walked into it, it was a big room, and the
Court extended its hand and put me at my ease. I know the Judge will do that to the
individuals who appear before this Court.
The Clark County Bar Association extends its great appreciation for your work, Judge
Eather, and wishes you a long life and happy endeavor in what you choose to do from this
time on.
Thank you.
(Mr. Jack E. Butler concludes.)
Mr. Gordon Thompson, President of the Washoe County Bar Association:
Mr. Chief Justice.
Chief Justice Badt:
Mr. Thompson.
Mr. Thompson:
On behalf of the Washoe County Bar Association I should like to say this, Judge
Eather, that we just want to thank you from the bottoms of our hearts for your many years of
devoted service to the people of the State of Nevada and to the bench and the bar. We join
President Gubler in saying to you that you have our fondest hopes and wishes for a most
happy and enjoyable retirement.
And to you, Mr. Justice McNamee, it must indeed be a considerable source of
gratification and satisfaction to you to realize that in accepting this position of high
responsibility you do so with the knowledge that you have the respect and complete
confidence of the lawyers throughout the State.
have the respect and complete confidence of the lawyers throughout the State. We know that
you will be of great service to the State and we ask that God be with you in the performance
of your high duties and responsibilities.
(Mr. Thompson concludes.)
Chief Justice Badt:
Thank you, Mr. Thompson.
Mr. Homer Angelo (Representing Judicial District No. 1, Comprising the Bar of Storey,
Ormsby, Douglas, Churchill and Lyon Counties.):
If the Court please.
Chief Justice Badt:
Mr. Angelo.
Mr. Angelo:
I would like to speak on behalf of the bar of the First Judicial District of the State and
the residents of Ormsby County. The residents of Ormsby County have the privilege of
knowing the Justices of the Supreme Court as persons, as well as Justices, and from that
viewpoint it is with regret that we say goodbye to Judge Eather who has been with us for
many years, coming to Carson City daily and participating in many of our activities such as
Rotary Club and other functions. It is with sadness we see you go, Judge Eather, and we hope
you will consider this a place where you can always come to see your friends in Carson City.
On behalf of the lawyers of the First Judicial District, I might say, Judge McNamee,
this is the most informal bar association in the world. We have no dues, no officers, and no
rules. (General laughter.) We wish to welcome you here in Carson City, and in the counties of
Ormsby, Storey, Lyon, Douglas and Churchill, to join with us in our activities. We express to
you the feeling of warmth and gratitude that we hold for all members of the Supreme Court in
their functions in this district. We hope that you will make Ormsby County and this district
your home and we offer the cooperation of the local bar.
I would like to speak, too, to Judge McNamee as a veteran. We of the veterans'
organizations in the State are proud of your work as a soldier in our armed forces. We
welcome you to the bench of this, our highest court.
(Mr. Angelo concludes.)
Chief Justice Badt:
Thank you, Mr. Angelo.
Hon. D. W. Priest, Deputy Attorney General of the State of Nevada:
May it please the Court.
Chief Justice Badt:
Judge Priest.
Hon. D. W. Priest:
I have been asked to attend and make a few remarks for the Attorney General's office
to convey the admiration and respect and warm personal friendship for both the retiring
Justice and the incoming Justice of the Supreme Court. Mr. Dickerson [the Attorney General]
regretted he could not be present upon this occasion, but was called away to take care of work
in southern Nevada.
Justice Eather, may your well-earned leisure be a period of much happiness and
personal satisfaction.
Respecting the incoming Justice, Judge McNamee, this advancement represents to
you a well-earned advancement. Your judicial services heretofore have shown your
comprehension of the law and your moderation. We entertain no doubt in respect to the
quality of your services upon this bench. This appointment has opened to you the way to be of
greater service to your fellow men, to which your qualifications have justly and properly led
you.
And to the Court as a unit, we of the bar and of the Attorney General's office,
comprehend the weight of your office, the soul-searching difficulties of your decisions and
pronouncements and the knowledge of far-reaching effect which constantly bear upon your
consciences. We of the bar have great confidence in your wisdom, and instinctive sense of
justice and in the harmony and order of justice.
wisdom, and instinctive sense of justice and in the harmony and order of justice. We have
great confidence in you individually.
May God help you when the weight is great and the responsibility is overwhelming.
(The Hon. D. W. Priest concludes.)
Chief Justice Badt:
Thank you, Judge Priest.
This courtroom has never, during my experience, been graced with the presence at one
moment of so many eminent members of the bar, the leaders of the bar of Nevada. Do any
one of you members desire to be heard further?
(No response.)
I will say that your very presence here indicates your appreciation of the importance of
the occasion, a presence that has not been equaled, as I say, in my 12 years' experience on the
bench here. So you are evidencing not only your appreciation of the significance of the
occasion, but the well-known modesty and humility of the members of the bar in not taking
the time to be heard.
We do, though, I am sure, wish to hear from Mr. Justice Merrill.
Associate Justice Merrill:
Speaking on behalf of Chief Justice Badt and myself, of course it is extremely hard for
us to say goodbye to Mr. Justice Eather. The relationship between the members of this court
for the years I have served has been of the closest from the point of affection, from the point
of mutual respect and regard. The contributions that our brother has made to the cause of
justice through his many years on the bench are not to be found simply in the cold pages of
the Nevada Reports or the decisions of the District Court, but they are to be found in the
hearts and consciences of his fellow men. I have never known a man who had such an
instinctive sense of justice and a conscience which could manifest itself so unerringly. A
measure of his quality of justice, I think, is to be found in everyone who has come in
contact with him either as lawyer or as judge.
is to be found in everyone who has come in contact with him either as lawyer or as judge.
Justice Badt and I both count ourselves extremely fortunate for our years' close association
with him.
But it is good when the time comes, as it inevitably must, for a man such as Judge
Eather to retire that we should have to take his place upon this Court a man such as Judge
McNamee. Judge Badt and I have known Judge McNamee, of course, for many years, both as
lawyers and as judges, and have for him the deepest affection and the greatest respect for his
abilities as a lawyer and as a judge. Judge Badt and I, as we have frequently demonstrated
upon each other throughout our years together, take the keenest delight in intellectual
difference and we are, I know, going to welcome Judge McNamee into this area with great
anticipation. I am sure that his presence on the bench is going to bring to us personally a great
deal of pleasure and stimulation in the process of decision.
I am delighted to see so many members of the bar here and particularly so many
members of the Clark County Bar. I know the pride that they feel in their Judge McNamee. I
am glad of it. I like to see merit recognized and appreciated in such a manner. Their
confidence, we all know, is far from misplaced. The pleasure and pride that they feel on this
occasion I know will continue, and the pride in Judge McNamee that is felt particularly on
behalf of the Clark County Bar is one in which the lawyers of the State and the 16 other
counties will soon be able to share.
So, with deepest regret, we terminate our official relationship with Judge Eather but
confidently expect to maintain a close personal relationship for many years to come. We
welcome to this Court the distinguished jurist from Clark County who we know will become
a most respected and beloved member of our family here on this bench.
(Associate Justice Merrill concludes.)
Chief Justice Badt:
Thank you, Judge Merrill.
And so it is Hail and farewell. As Judge Merrill has just said, in saying farewell to
Judge Eather it is officially only because we know our personal relation and friendship will
endure for many years, and our chambers are always open to him. He is always welcome here.
We may even ask his advice and assistance, which the three of us can have occasionally in
difficult matters that are submitted to us. So, Judge Eather, I think you should have a moment
in a matter of self-defense against all these things that have been said about you.
Associate Justice Eather:
All I can say, gentlemen, is that I appreciate very much the presence of so many
members of the State Bar here this morning. It gives me a great deal of satisfaction to see
each and every one of you here.
Words cannot just express my feelings. While my retirement is certainly voluntary, it
is with deep regret that I must retire from the bench. I enjoyed my work very much here, and I
don't think there's any man who ever sat on this bench that had worked with two better men
than I have had the pleasure of working with Chief Justice Badt and Association Justice
Merrill.
Regarding Judge McNamee, I have always had the highest regard for him as an
attorney and as a judge and I know that he will be a credit to this Court. I think I can say
without fear of contradiction that with these three men on this bench the State of Nevada will
have one of the finest courts that they have ever had in the State and we have had some
mighty fine Justices.
Thank you.
(Association Justice Eather concludes.)
Chief Justice Badt:
Thank you, Mr. Justice Eather.
Judge McNamee, I may say, too, that we look forward now to continuing the work of
the Court in the very best and highest of its traditions and we look forward to that proudly and
confidently.
I think you should have the unique privilege of being heard with regard to your own
obituary. (Smilingly.)
Judge McNamee:
Honorable Justices, and members of the bar, and visitors:
Of course, I am deeply grateful for the attendance here today and for the honor that
has been given to me to be able to sit with these distinguished gentlemen. I appreciate very
much the Clark County Bar support that I have always had, and also when I have sat in
Washoe County the fine cooperation of the attorneys there.
I think that I will always regret leaving Las Vegas because it has been my home for so
many years, but I am looking forward to a new life up here and I feel I can adapt myself
properly to this.
(Judge McNamee concludes.)
Chief Justice Badt:
Thank you.
If you (addressing Judge McNamee) will arise, I will administer to you the oath of
office.
(The entire assembly stands and Chief Justice Badt administers to Judge McNamee
the oath of office. Thereafter the assembly adjourned at 10:00 o'clock A.M. until 10:05
o'clock A.M. when Court convened with Chief Justice Badt and Associate Justices Merrill
and McNamee sitting.)
Anna Rebol,
Official Reporter.
____________ IN THE SUPREME COURT OF THE
IN THE SUPREME COURT OF THE
STATE OF NEVADA
In Re Ceremonies of the Court }
Held December 15, 1958 }
Order

In Chambers.
Present: Hon. Charles M. Merrill, C.J.
Hon. Frank McNamee, J.
Hon. Milton B. Badt, J.
It Is Ordered that the foregoing transcript of proceedings be spread upon the minutes
of this Court under date of December 15, 1958; that the same be published in Volume 74 of
the Reports of the Nevada Supreme Court and that copies thereof be furnished to Mr. Justice
Eather and Mr. Justice McNamee.
Done at Carson City, Nevada, this 21st day of January, 1959.
Attest:
Ned A. Turner,
Clerk of Supreme Court.
____________

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